How can I get a recovery order from the Family Court?
If children are taken from your care or move somewhere else in Australia without permission, you may be able to apply for a recovery order. This could include situations where:
- someone who normally spends time with your children refuses or fails to return the children to your care (even if there are no parenting orders in place)
- someone who does not usually spend time with the children has taken the children from your care, and refuses or fails to return them, or
- the children have relocated (or are about to relocate) a long distance away to somewhere else in Australia, without your agreement or the court's permission.
You will need to show that it is in the best interests of the children that they be returned to your care. This could involve concerns about the risk of harm to the children if they stay with the other person (such as exposure to drug use or family violence), the lack of relationship with the person they are currently with, particular needs that the children may have, or the disruption to the children maintaining a close and meaningful relationship with you if they are not returned.
Because a recovery order often involves the police taking the children from the person they are currently with, which could be a very upsetting experience, the court will also consider the impact this process may have on the children before a recovery order is made.
You should get legal advice about your situation as soon as possible. It can be harder to get a recovery order if the children have been with the other person for a long time.
How do I apply for a recovery order?
You can ask for a recovery order by making an application in a parenting case in the Family Court. If you do not have an existing parenting case or parenting orders, you will need to start a parenting case at the same time you apply for the recovery order.
You do not need to participate in family dispute resolution before you apply for a recovery order. If you start a parenting case at the same time, you may need to have a FDR certificate or exemption before you can continue with the parenting case later on.
When will the court hear my application?
It depends on how urgent the situation is and whether the other person needs to be told about the hearing. When you apply for a recovery order, you should write a letter to the court asking for a quick hearing. You need to explain why you need an urgent hearing and whether you will tell the other person about your application. The court will then decide how soon it will hear your application.
The court will also consider if the application should be decided without the other person being in court (called an ex parte hearing). The court might agree that there isn't time to tell the other person, because the situation is so urgent. Or there might be a real risk that the other person will hide or relocate with the children if they find out about the application before any orders can be made.
In some urgent and special situations, the court can give you an ex parte hearing on the same day you file your application for a recovery order. In other cases, it may be a few days before your hearing, or you may have to wait until the other person has been served with a copy of your court forms.
What if I don't know where the other person and the children are living?
You can ask the Family Court for a location order to make a particular person (such as member of the other person's family) or a government department (such as Centrelink) tell the court any information they have about where the other person or the children could be living.
What can I do if my children have been taken overseas?
Australia is part of an international agreement, the Hague Convention on International Child Abduction, which covers applications and arrangements for children to be returned to Australia if they have been wrongfully taken or kept overseas. The children must normally live in Australia and have been taken to another country where the Hague Convention is in force.
The Australian Government's Attorney-General’s Department deals with applications under the Hague Convention to have children brought back to Australia. It can also help with recovering children from Egypt and Lebanon. The Department will assess your application and, if approved, will apply to the Federal Court on your behalf for the orders it needs to have your children brought back to Australia.
Legal Aid WA can give legal advice and assistance about applying for recovery orders, including help with urgent applications. To find out what help we can give, call the Infoline or contact your nearest Legal Aid WA office.
International Social Service Australia can assist you if your children have been abducted overseas to a Hague Convention country, including free legal assistance over the phone to help prepare applications.
If your children have been taken to a country that is not part of the Hague Convention, contact us to ask what help we can give.
If your children’s safety is at risk, you can contact the police and ask them to carry out a welfare check. They usually will not remove children from a parent’s care without a recovery order, unless the children are in immediate danger.