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Recovery orders

Recovery orders

What is a recovery order?

A recovery order is an order made by the Family Court for the return of a child to a person who is responsible for the child’s care.

Usually the Family Court will direct the order to the police who will arrange for the return of the child.

What are recovery orders used for?

Some situations where you might apply for a recovery order include where:

  • the child normally lives with you and spends time with another person and that person refuses to return the child at the end of a visit 
  • the child has been taken to live in a remote location or interstate without your consent
  • the child does not spend time with the other person and that person has taken the child and is refusing to return them

There may be other situations where a recovery order may be necessary. You should seek legal advice about your particular situation.

Who can apply for a recovery order?

You can apply for a recovery order if you are one of the following categories of people:

  • a person who has parenting orders from the Family Court in place about the child
  • a grandparent of the child
  • a person who is concerned with the care, welfare or development of the child. This would include a parent who does not have Family Court orders in place.

If you are not sure if you fit into any of the categories above, seek legal advice to see if you can apply for a recovery order or to find out what other options you have.

Do I need parenting orders from the Family Court to get a recovery order?

You do not need to have existing Family Court orders to seek a recovery order. The process is the same whether or not you have parenting orders. You may need to fill out slightly different Court forms depending on whether or not you have current Family Court proceedings.

What if I have immediate concerns about my child’s welfare?

Sometimes things are so urgent you might not have time to seek legal advice before acting. In some circumstances you may want to go straight to the Family Court to seek a recovery order.

Legal Aid WA provides a duty lawyer service at the Family Court in Perth that may be able to assist you with an urgent application if you do not have time to seek legal advice elsewhere first. For more information, see Family Court Services (duty lawyer).

Important: If you or your child’s safety is at risk, contact the police on 000. The police can also carry out a welfare check. They usually will not remove a child from a parent’s care without a recovery order unless there is immediate danger to the child.

How long does it take to get a recovery order?

If the situation is very urgent, you may be given a hearing date on the same day as you file your application. The Court will look at various factors and determine how urgent the matter is and allocate a hearing date. A matter may be considered more urgent where, for example:

  • the child is at risk because of violence or substance abuse
  • the child is very young and still breastfeeding
  • the child is at risk of abduction
  • the child has never before spent time with the parent who has removed the child
  • the child has specific medical needs which are unlikely to be looked after by the other person

If the Family Court grants the recovery order, the police are then able to return the child to you.

Will the other person be told I am seeking a recovery order?

In urgent situations, the Family Court may hear the application for a recovery order ex parte, which means without the other person being present. The Court may also hear an application without the other person’s knowledge if there is a risk that the person may go into hiding with the child if they find out about the recovery order.

In other situations, the Family Court may need to hear from the other people involved before making a decision.

How does the Family Court decide whether or not to make the recovery order?

The Family Court must consider what is in the best interests of the child. For more information, see Best interests of the child. Having the police remove a child can be very stressful for everyone involved, particularly children, so the Court must carefully consider if the recovery order is necessary.

My child was removed from my care some time ago. Can I still get a recovery order?

The longer a child stays with another person, usually the harder it can be to get a recovery order to have the child returned. Seek legal advice as soon as possible. You may still be able to apply for a recovery order, or there may be other options to have the child returned to your care, such as parenting orders.

How do I apply for a recovery order?

You will need to fill out particular forms, file these forms with the Family Court and attend Court to ask for the recovery order to be made.

You can get copies of the required forms from the Family Court registry or from the Family Court of WA website.

You do not need to attend mediation before seeking a recovery order.

If you are in a regional location you should seek legal advice about applying for a recovery order at your nearest Magistrates Court.

A child has just been removed from my care under a recovery order. What can I do?

If your children have been taken from your care by the police under a recovery order and you think they should be returned to you, seek urgent legal advice.

Where can I get more information?

  • The Family Court of WA has a “Recovery order kit” which is available by calling (08) 9224 8222 or you can find it at the Family Court of WA website.
  • Contact the Legal Aid WA InfoLine on 1300 650 579.
  • Legal Aid WA has a duty lawyer service at the Family Court in Perth which can assist in specific circumstances. For more information about this service, see Family Court Services (duty lawyer) or call the Legal Aid WA InfoLine.

Last reviewed: 30/10/2012

Last modified:

Disclaimer

The information displayed on this page is provided for information purposes only and does not constitute legal advice. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia aims to provide information that is accurate, however does not accept responsibility for any errors or omissions in the information provided on this page or incorporated into it by reference.