Apply for a Recovery Order
Please note that this is not legal advice. You should seek legal advice before deciding what to do. A lawyer can help you understand your legal rights and responsibilities, and explain how the law applies to your case. We recommend that you contact one of our VIPs.
What forms do I need?
What is a recovery order?
Recovery orders are sought without notice, to recover a child or children wrongfully retained by a person. A recovery order is defined in s 67Q of the Family Law Act 1975. It is an order made by a Court that can require a child be returned to a:
- parent of a 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.
A recovery order can authorise or direct a person or persons, such as police officers, to take appropriate action to find, recover and deliver a child to one of the abovementioned people. A recovery order can also provide day-to-day care of a child until the child is returned or delivered.
In addition, a recovery order can prohibit the person from again removing or taking possession of the child. In these cases, a recovery order can authorise the arrest (without warrant) of the person who again removes or takes possession of the child.
What is the relevant legislation?
What are the relevant rules?
Part 21.3 Family Law Rules 2004
What is the relevant case law?
Who can apply for a recovery order?
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
- person who has parental responsibility for the child in a parenting order
- grandparent of the child, or
- person concerned with the care, welfare and development of the child. For example, you may be the person who the child lives or spends time with but there is no parenting order that states this.
How do I apply?
If you have a current parenting case in the Family Court of Australia, the application should be filed in that court. On the application form you must state what orders you are seeking the Court to make. For example:
The Marshal of the Court, all officers of the Australian Federal Police and all state and territory police officers are requested to find and recover [child/ren & date of birth] and deliver the [child/ren] to the [father/mother/other] and for that purpose 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/ren] may be found.
What needs to be in my affidavit?
- A brief history of the relationship between you and the person the child is presumed to be with
- A list of previous court hearings and family law orders
- Details about the child and where he/she usually lives
- How and when the child was taken from you or not delivered to you
- Where the child might be and the basis for that belief
- Steps (if any) that have been taken to find the child
- Why it is in the child's best interests to be returned to you
- The likely impact on the child if a recovery order is not made
- Any other factors relevant to the case
What happens at Court?
In deciding whether to make a recovery order, the Court must regard the best interests of the child as the paramount consideration. The Court may make an order which allows or requires a person to return the child to you at a designated time and place. In some cases, the Court may make a recovery order which authorises or directs a person or persons, such as police officers, to take appropriate action to find, recover and deliver the child to you.
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).
The AFP will not generally recover a child, except in exceptional circumstances, until you are able to receive the child and are close by. This means you may need to travel to collect the child when he or she is recovered.