When the other parent retains your child …

It is every parent’s nightmare – sending your Child to the other parent so they can spend time with them and then having the other parent refuse to allow your Child to return home to you.

Many parents mistakenly believe that they can call the local police and that the police will attend the other parent’s home to return the kids to you. This isn’t the case!

If the other parent is refusing to allow your Child to come back to you or refusing to facilitate the Child from going back into your care, you may need to file for a recovery order at the Family Court or the Federal Circuit Court of Australia.

NSW Police do not have the power to collect your Child and return them to you when you contact them on the phone. They are permitted to undertake welfare checks on the Child – but otherwise, it is imperative that you see an experienced family lawyer for urgent advice.

This is especially the case if your Child is young as they are particularly vulnerable, or if there are significant risk issues such as drug use, family violence or mental health concerns with the other parent.

You should also obtain immediate and urgent advice if there is a risk that your Child can be taken out of the jurisdiction of Australia or the State or Territory where the Child usually resides.

You do not need to have parenting orders in place before you file for a Recovery Order. Many families have parenting arrangements in place without formal orders from the Court existing.

WHAT IS A RECOVERY ORDER?

A recovery order is defined in section 67Q  of the Family Law Act 1975 . It is an order of the Court that can require a Child be returned to a:

  • parent of the 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.

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
  • a person who has parental responsibility for the Child in a parenting order
  • grandparent of the Child, or
  • a person concerned with the care, welfare and development of the Child.

Applications for Recovery Orders are usually listed urgently and at times in certain circumstances, Applications for Recovery Orders can be made without the other parent knowing.

Once the Court has made a recovery order, it is important to remember that it is not the Judge that physically goes to collect the Child!

If the Court makes a recover order, it is an order directing and authorising another person or persons to find, recover and deliver the Child back to you. In most instances, this will be the Australian Federal Police.

Often, the involvement of the AFP is not necessary as the other parent complies with the Recovery Order and returns the Child to you. 

WHAT DOES THE COURT CONSIDER WHEN DECIDING IF A RECOVERY ORDER SHOULD BE MADE?

Remember, every single order that the Court makes with respect to Children, needs to keep them safe from harm and be in their best interests.

The Court will often consider the parenting relationship that exists between the parents and the Child, for example, who is the usual primary caregiver of the Child, any previous court orders or proceedings, information about where the Child usually lives, your explanation as when the Child was removed from your care and the circumstances of the Child being retained by the other parent, any information that you may have regarding the Child’s location, the likely impact on the Child of any separation from you.

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It is absolutely crucial that you obtain immediate legal advice from an experienced lawyer if the other parent is not returning your Child. A delay in obtaining advice regarding your situation could result in your Child being removed from the jurisdiction of Australia, harm to your Child, or the Court forming the view that the Child should not be returned to you and making an order that the Child should remain living with the other parent.

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Lydia Shelly

Lydia Shelly

Lydia Shelly is an experienced family lawyer and the principal of Shelly Legal, a boutique family and litigation law firm. Lydia has been a single mother and understands the reality of single parenting, coparenting and raising two wild boys and a mini-Schnauzer called Arnold.

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