When your child is taken away or withheld from you
If your child has been taken away or withheld from you, the Family Court has the power to make a Recovery Order – an Order that forces the other parent to bring your child back. If the other parent refuses, the Recovery Order directs the Federal Police to return your child to you.
In many cases, a parent may take or retain a child for misguided reasons or to advance their own agenda. Even if the Court ultimately finds that this was wrong, where time has passed and your child has established a new life without you, it can be difficult to change things back to how they used to be. The longer the new parenting arrangement is allowed to develop, the less likely the Family Court is to make the child encounter another change to put things back to how they used to be.
A Recovery Order is an order of the Family Court that can require that a child be returned to:
- A parent of the child,
- A person who the child lives with in accordance with a parenting order,
- A person who the child spends time with or communicates with in accordance with a parenting order, or
- A person who has parental responsibility for the child.
You can apply for a Recovery Order if you are:
- A parent of the child,
- A grandparent of the child; or
- A person concerned with the care, welfare and development of the child.
The Court will make a Recovery Order if it is in the best interests of the child to do so.
There are many different and competing factors that a Court takes into consideration when determining whether a Recovery Order should be issued in relation to a child. Where there is a breach of the Orders, the Court will usually find that the child is to be returned to the parent in accordance with the Order. Occasionally, there may be reasons where the Court does not return a child to a parent in accordance with the Orders, because it would not be in the child’s best interests to do so. This might be in a case where one of the parents has made a Rice and Asplund application to the Court (this is an application for current parenting Orders to be changed).
If the Court considers that your child should be returned to you, it will provide the person who removed your child with the opportunity to agree to Court Orders for the child to be returned, including Orders for when and how the child is to be returned. If the other person does not agree to return your child, then a Recovery Order will be made.
A Recovery Order will usually authorise the Australian Federal Police to do all things necessary (including using force) to recover the child from the person who has retained the child and will prohibit that person from removing the child again.