In certain circumstances, a person may be eligible to lodge an application for a child to be immediately returned to their care. These applications are called recovery orders and they are usually applied for in circumstances of urgency. Hosking Legal has solicitors with experience in obtaining recovery orders. If you would like to discuss whether or not you have grounds to apply for a recovery order, please contact our office and speak with one of our family law solicitors.
What is a recovery order?
A recovery order is a court order that requires the return of the child concerned to the person applying for the order. That person may be a:
- A person with parental responsibility for a child (usually a parent)
- A person who has a parenting order that a child is to live with them, spend time with them, or communicate with them
- A grandparent of the child
- Another person concerned with the care, welfare and development of the child
A recovery order can authorise the police to stop and search any vehicle, vessel, aircraft or premises to find a child, to recover a child and then deliver the child to a person as specified in the court order.
What if the whereabouts of the child is unknown?
If you don’t know the location of the child, it may be possible to apply to the court for a location order. A location order can require a person to tell the court what they know about the child’s location. The order may also require government agencies to provide information they have about the child’s location.
A location order can be applied for by the same categories of persons who can apply for a recover order.
When will an application for a recovery order be considered by the court?
There are different circumstances when a court will consider making a recovery order to return a child to the person seeking the child be urgently placed in their care. These may include a situation where a person has removed the child concerned from their usual primary care giver, or when a couple has separated and one party is preventing the other party from seeing the child. Whether your particular circumstances justify making an application for a recovery order is something that Hosking Legal can provide expert advice upon.
A party seeking to apply for a recovery order will be expected to apply promptly after the circumstances that form the basis for the application have arisen.
If you instruct Hosking Legal to apply for the recovery order, we will seek to arrange an urgent listing of the application before the court and advise you of any other steps that should be taken.
In some circumstances, the court may agree to hear the application in the absence of the other party. This may occur if the other party cannot be located, or there is a danger the other party may seek to abscond with the child, or if there are other reasons why the application needs to be heard promptly.
How does the court decide if it will make a recovery order?
The best interests of the child are the paramount consideration when the court decides if it will make a recovery order. When deciding what is in the best interest of a child, the court looks at a number of considerations including following factors:
- Whether there is an existing court order in place
- The benefit to the child of having a meaningful relationship with both parents
- The need to protect the child from harm
- The child’s relationship with the parents and other significant people
- The likely effect of any change in the child’s circumstances, including separation from a parent
- The capacity of a parent or significant other person to provide for the needs of the child
- Whether or not there are any family violence orders in place
- Anything else the court thinks is relevant
In recovery order applications, the history of the child up until that point (who the child has been living with), as well as risk factors, may be of particular importance.
What happens if a recovery order is made?
If a recovery order is made by the court, the Australian Federal Police will be contacted to execute the recovery order. The order may also be passed on to the State police force for execution. You will need to be on standby and contactable so that the child can be transferred back into your care when the police execute the recovery order.