16 October 2018/
A recovery order is an order of the Court that can require a child be returned to a:
- parent of the child
- person who has a parenting order that states the child lives with, spends time with or communicates with that person, or
- person who has parental responsibility for the child.
You can apply for a recovery order if you are:
- a person who the child lives with, spends time with or communicates 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.
If there are no parenting orders in place you will need to file an initiating application seeking parenting orders at the same time as applying for a recovery order.
If the Court makes an order authorising or directing another person or persons to find, recover and deliver the child, you must give a copy of the order to that person or persons. In most instances, this will be the Australian Federal Police (AFP).
- When the child is returned to you, you must notify registry staff at the Court as soon as practicable.
If the child isn’t found, you may ask the Court to issue other orders to help locate the child; for example:
- Location order – if you breach a parenting order and you cannot be found, a court may make a location order.
- Commonwealth Information order – requires a Commonwealth Government Department, such as Centrelink, to give the Court information about the child’s location that is contained in or comes into the records of the department.
- Publication order – allows the media to publish details and photographs of the missing child and the person they are believed to be with. However, each case is different and the terms of the publication order can vary. This is usually a last resort and you should seek legal advice first.
If your child is taken from their home country without your permission, or without the authorisation of a court, then the Hague Convention may apply.
The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty under which arrangements are made for the return of children that have been wrongfully removed or retained outside their country of residence.
The Convention aims to:
- secure the prompt return of a child wrongfully removed to or retained in a country which is party to the Convention
- ensure that rights of custody and/or access of the state of origin are respected, with judgement on the custody to be rendered in that country, on the assumption that the court in the country of habitual residence is best able to make decision for the child, and
- ensure the relevant court in the country of habitual residence is best able to make decisions for the children.
The Convention operates under the following specific conditions:
- it applies only between contracting states, and so only has force where both countries are signatories to the Convention
- it applies only to matters where the subject child is under the age of 16.
- the child must have habitually resided in a contracting state directly before rights of custody or access were breached.
Should you require any advice on Recovery Orders I can provide sound advice to assist you with your circumstances.