February 9, 2023

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The Legal System

7 Important things to know – seeking Recovery Orders – Family Law

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.

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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.

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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.