Recovery orders for children

Most separated parents keep to their parenting arrangements, whether those are in court orders or simply agreed. Sometimes they break down badly: one parent keeps a child after the end of their time, or takes the child away and will not say where. A recovery order is the court's main tool for getting a child back.

What a recovery order does

A recovery order is an order of the court that can:

(a) require a child to be returned to a parent, or to a person the child is to live with, spend time with or communicate with under a parenting order, or to a person with parental responsibility;

(b) authorise or direct police and other officers to find, recover and deliver the child, using force if necessary to enter and search premises or vehicles;

(c) give directions about the child's day-to-day care until the child is returned;

(d) stop a person from taking the child again.

For children whose parents were married, recovery orders are made under s 67Q of the Family Law Act 1975 (Cth). For children whose parents were never married, the WA equivalent is s 149 of the Family Court Act 1997 (WA). In Western Australia both are made by the Family Court of Western Australia.

The Family Court of Western Australia notes that police do not have the power to enforce parenting orders without a recovery order, and that unless a child is in immediate danger they will not usually become involved without one.

Who can apply

You do not need a parenting order to apply. The people who can apply include:

(a) a parent of the child, as a person concerned with the child's care;

(b) a person the child lives with, spends time with or communicates with under a parenting order;

(c) a person with parental responsibility for the child;

(d) a grandparent of the child;

(e) anyone else concerned with the child's care, welfare or development.

If there are no parenting orders, the Family Court of Western Australia expects you to apply for them at the same time, so that the longer-term arrangements are also decided.

What the court considers

The child's best interests are the paramount consideration (s 67V; WA s 154). A recovery order can be distressing for a child, especially if police have to collect them, so the court will want evidence that the order is in the child's interests. That evidence is given in an affidavit and usually covers:

(a) the child's usual living arrangements, and any orders in place;

(b) where you believe the child is, and who they are with;

(c) what has happened, and when;

(d) what you have done to try to have the child returned;

(e) why you believe the child is at risk, or why return is in the child's interests.

The court usually expects you to have tried to arrange the child's return with the other parent first, unless doing so would be unsafe. In general, the other parent must be served and given a chance to respond.

A recovery order lasts for the period it states, up to a maximum of 12 months (s 67W; WA s 155). A person who hinders anyone carrying out a recovery order can be fined by the court.

Speed matters

The longer a child stays with another person, the harder it can become to have the child returned. If a child has been kept from you, get advice quickly.

If you do not know where the child is

If a child's location is unknown, the court can make other orders to help find them, such as:

(a) a location order, requiring a person to give the court information about where the child is;

(b) an order requiring a Commonwealth department, such as Centrelink, to provide information it holds about the child's location;

(c) in rare cases, a publication order allowing the media to publish details of the missing child.

Interstate and overseas

A recovery order can be used to recover a child who has been taken to another State or Territory.

It cannot help once a child is outside Australia. If a child has been taken overseas, or is being kept there, the route is usually an application for the child's return under the Hague Convention on child abduction, through the Australian Central Authority in the Commonwealth Attorney-General's Department. Taking or keeping a child overseas without consent or a court order, once a parenting order is in place or proceedings have started, is also a criminal offence (FLA ss 65Y to 65ZAA; WA ss 107 to 108A). A separate article explains what to do if a child has been taken overseas.

This article is general information, not legal advice.