There are seven things you need to know when seeking recovery orders in Australia.
Recovery orders are court orders requiring the immediate return of an abducted child to the responsible parent or carer named in parenting orders.
When seeking recovery orders you need to know that the courts work closely with law enforcement bodies in Australia (and internationally if required) to locate and return children to their rightful parent.
A child the subject of a recovery order may end up being included on a Family Law Watchlist which makes it possible to intercept the child at the borders or airports if the other parent is trying to unlawfully remove them from the country.
During a custody battle where a child has been moved to another jurisdiction, the left-behind parent will be left wondering how to to go about seeking recovery orders and what their likelihood of success will be.
Before applying to the court for a recovery order, you should obtain immediate legal advice and if you feel your child is in danger you can contact State or Territory police as well as the relevant child welfare authorities in your state or territory.
1. What is a Recovery Order and Who can Apply for One?
A recovery order is a court order (defined under section 67Q of the Family Law Act 1975) requiring the immediate return of a child who has been wrongfully removed from:
- the child's parent.
- the child's parent/carer as defined under a parenting order; or
- a person who has parental responsibility for the child (which could also be a grandparent, aunt/uncle etc).
A recovery order requests the courts and law enforcement bodies (Australian Federal Police and/or state and territory police) to find and recover abducted children and where necessary to:
stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the child may be found.
You can only apply for a recovery order if you are:
- a person who the child lives with or spends time with as stated in a parenting order
- a person who has parental responsibility for the child in a parenting order
- grandparent of the child, or
- a person concerned with the care, welfare and development of the child even if there is no parenting order saying this.
If you fit the criteria above and your child has been unlawfully removed from your care (by another parent or party) then you can apply for a recovery order under the Family Law Act, as soon as you feel it is required. Before seeking recovery orders you should get immediate legal advice from a skilled family law practitioner who can help you fast-track your case by filing the correct paperwork.
2. How To Apply for a Recovery Order?
Before proceeding with application you should first consult the Court's fact sheet, Recovery orders as well as reading the Australian Federal Police's Family Law Kit.
- Where to file: If you have a current parenting order in place or a case underway in the court you will file the Recovery Order in the Family Court of Australia. If you do not have a current parenting order in place, you need to apply for this at the same time as you file for a parenting order and these documents will be filed in the Federal Circuit Court. The recent changes to the Australian family court system mean that any recovery or parenting applications will go through a central portal in the newly merged Family Court/Federal Circuit Court portal after September 2021.
- When there are no parenting orders in place - you need to request the court make a decision allocating parental responsibility. Your lawyer can help you with this. Other paperwork you might need could be a location order for missing children presumed to still be in Australia and these are made to Centrelink, schools or to the NSW Department of Communities and Justice (formerly DOCs) to help you track down your child.
- File an Affidavit in support addressing key issues describing a history of your relationship with the other party and the child, all previous court hearings and parenting orders and other relevant information which your lawyer can assist you with including details of the child's disappearance and impact upon their welfare if not returned.
4. What Are the Court Procedures in Seeking Recovery Orders?
The family court system bases its decision to issue a recovery order on the best interests of the child and the potential impact on the child of not being returned. Courts may consider a history of the other party retaining the child beyond an agreed time or any other factors (the other parent's mental health issues or drug/alcohol addiction) indicating that the child may be at risk based upon the information contained in your affidavit (above) and any other supporting documents.
5. What Pre-Emptive Alternatives Do I have to Seek Recovery Orders?
If you are a parent with concerns that the other parent might seek to unlawfully take your child out of Australia you should first seek immediate legal advice from a family law specialist or a lawyer with expertise about these types of matters. They may advise you to apply to the court for orders preventing a passport being issued for the child in question or one where the child's existing passport is delivered to the court or simply seeking orders preventing that child from leaving Australia under any circumstances.
If you want to prevent a child being issued with a passport you can lodge a Child Alert Request at any Australian Passport Office or apply to the court for a child alert order expressing your concerns that the child could be abducted by the other parent. A successful Child Alert Request remains in place for 12 months and if the other parent tries to apply for a passport for the child, this application will be flagged with the Department of Foreign Affairs & Trade (DFAT) who is obliged to deny the passport application. This request stays in place for 12 months or until the child turns 18 (whichever event occurs first).
6. What Can Law Enforcement Bodies Do to Assist?
When seeking recovery orders, the Australian Federal Police and state and territory police forces are the enforcement arm of the court and work to prevent the unlawful removal of children from Australia. Usually once a recovery order has been issued, the police can issue arrest warrants and put the child's name and details on a Family Law Watchlist (formerly known as an Airport Watchlist). This means that if someone attempts to take your child out of Australia, they will be flagged at the airport as soon as the child's passport is scanned by Border Force officials.
To get your child on a Family Law Watchlist you need to do the following:
- submit a Family Law Watchlist Request Form to the Australian Federal Police and this information is matched with all relevant Federal Circuit Court/Family Court records.
- Have a Parenting order (under s34 or s68B of the Family Law Act 1975 (Cth)) or a parenting order that limits or prevents the child's overseas travel and may also request the Australian Federal Police to place the child on the Family Watchlist.
- File an application with the Court for an order (to be made under s34 or s68B of the Family Law Act 1975 (Cth)) or a parenting order which limits or prevents the child's overseas travel; or
- File an appeal with the Court against any existing court order seeking to prevent the child's overseas travel.
Orders placing a child on the Family Law Watchlist must be specific and for a defined period of time (usually 2 to 3 years) but you can apply for an "absolute prohibition" on travel which applies until a further court order overrides this.
After you have filed the application to place your child on the Family Law Watchlist, you must deliver the filed and sealed court application to the Australian Federal Police. You do this by emailing the sealed court documents together with the Family Law Watchlist Request Form and provide a 24 hour telephone contact and email address. You may also want to check that your child is indeed on this watchlist and this is where having a skilled lawyer assisting you is invaluable.
You, or your lawyer (preferably) need to complete a Family Law Watchlist Enquiry Form (under section 121 of the Family Law Act 1975 (Cth), Your lawyer then sends this form along with a copy of your Australian Government issued identification (driver's licence or passport) to the AFP contact portal.
The Australian Federal Police (AFP) and Border Force will not directly assist you in recovering a child, except in exceptional circumstances where there is a risk of a violent crime against the child. The Australian Federal Police have offices in each capital city and you can get more information from their website. As soon as possible after obtaining your Recovery Order, you need to start talking to the Family Law Team in the Australian Federal Police to see where they are at with all your paperwork. Again, get your lawyer to do this on your behalf.
As soon as your child is returned to you, you will need to notify court registry staff to update the information on your file.
7. When Do Recovery Orders Enter into Force?
It is possible to issue urgent recovery orders and these can be done almost instantly if it is clear that the child is under immediate risk of being removed from the country. In non-urgent cases, the court will take a week or more to finalise the paperwork. The courts will try to fast-track your application but this is where having a skilled family lawyer onboard is a major benefit.
If your child has been removed from Australia while you are in the process of completing your application seeking recovery orders, the Australian Central Authority can help. Your lawyer will advise you on how to proceed and what this agency does when administering the Hague Convention on the Civil Aspects of International Child Abduction, which is an international treaty between Australia and 94 other countries who agree to work together to return abducted children to their parents.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.