Oftentimes when relationships break down, children will experience a change in their routines and regular living circumstances. Sometimes these changes can result in circumstances where a child is removed or taken from a party’s care, without consent.
When a child has been removed from the care of a person and the whereabouts of that child is unknown, a person with a parenting order in their favour, or a person who is otherwise concerned with the care, welfare and development of a child, may apply to the Court for a location order (under s 67J) or a recovery order (under s 67Q).
The sudden removal of a child from their carer without notice or cause, can amount to great distress, and often requires timely action. In some circumstances, parenting matters can resolve quickly, through relevant communication, and Court action is not always required. In other circumstances, a child may be in danger, or a range of other factors may necessitate the need for a party to consider an urgent Application to the Federal Circuit and Family Court, for a location Order and/or a Recovery Order to find and return the missing child.
Recovery and Location matters are often complex and time sensitive. It is best to seek legal advice if you are contemplating either type of order.
What is a Location Order?
A location order and Commonwealth information order require a person or Commonwealth department to give information about the child’s location to the registry manager of the Court. Usually, this information will relate to the whereabouts of the person who has removed the child rather than the child itself, but the effect (of locating the child) is the same. A Commonwealth information order has the effect of causing government records, including those held by the Australian Taxation Office and Centrelink, to be searched once every three months.
What is a Recovery Order?
The Family Law Act 1975 specifies (in section 67Q) that if a child is taken unilaterally and without permission, the Court can require a child to be returned to,
- The child’s parent
- A person with verifiable parental responsibility for the child
- A person who has a parenting order stating that the child either lives with spends time with, or communicates with them
This is what is known as a Recovery Order.
Who Can Apply for a Recovery Order?
You can apply for a Recovery Order if you are:
a) a person with whom the child is to live under a parenting order; or
b) a person with whom the child is to spend time under a parenting order; or
c) a person with whom the child is to communicate under a parenting order; or
d) a person who has parental responsibility for the child under a parenting order; or
e) a grandparent of the child; or
f) any other person concerned with the care, welfare or development of the child. In the event that there are no parenting orders in place, a parent is able to apply for a Recovery Order using the clause that they are a ‘person concerned with the care, welfare, and development of the child’.
When Can You Make a Recovery Order?
There is no mandatory waiting period before you can apply for a Recovery Order, however, the seeking of a recovery order should carefully be considered, and where action is required, it is important not to delay. Depending on your circumstances, you may want to provide the Court with evidence of pre-action efforts taken to resolve the matter, prior to seeking the Courts assistance. We recommend consulting with a legal professional as these types of Orders can be quite complex and should be handled by someone experienced in family law and Recovery Orders.
What Does the Court Consider with Recovery Order Applications?
Every case has unique circumstances, but when considering whether to order that a child be returned, the Court is likely to consider the following:
- A history of abuse, neglect, family violence, or other issues of risk to the child
- The history of the parties and the child
- The nature of the relationship between the parties and the child
- Where the child usually lives
- What the arrangements were before the child was removed
- Ways in which a change in the living arrangements may impact the child
- How and when the child was removed
- The living arrangements and home environment of the child
- Any other factor the Court considers relevant
What If I Don’t Know Where My Child Is?
If you have exhausted reasonable efforts to locate your child, your lawyer may suggest seeking a Location Order from the Court. This Order requires the child’s parent or legal guardian to be informed of their whereabouts and who is caring for the child.
How Long Do Recovery Orders Take?
You can request the Court to consider extenuating circumstances, to expedite your Application for Recovery Orders. The Court determines urgency, based on the evidence you have provided in your Application seeking a Recovery Order.
When a recovery order is granted, it typically remains in force for 12 months.
A recovery order requires assistance from relevant parties (often the Australian Federal Police) to return a child to their parent or someone with a relevant parenting order.
Compliance with recovery orders is mandatory.
Courts prioritize the child’s best interests when making such orders.
The Court has broad authority to issue appropriate orders.
For further details, refer to Part VII, Division 8, Subdivision C of the Family Law Act.
What Happens if My Child is Taken Overseas From Australia?
In circumstances where your child has been taken out of Australia without your consent, or perhaps where your child has not been returned to Australia after a trip abroad, where the child’s return was expected, then you may need to consider legal advice for the recovery of your child. Such cases as just described are often time sensitive, and involve complex considerations of international law, in particular the Hague Convention on the Civil Aspects of International Child Abduction which is a multinational treaty, signed by some countries, to assist with the recovery of children. Oftentimes these cases will involve issues of jurisdiction, and the habitual residency of a child.
In circumstances related to the recovery of a child taken overseas, without consent, you should seek legal advice without delay. Feel free to reach out to the experts at My Legal Crunch, where they have assisted others in similar situations, and have helped others reunite with their children.
