Family Court of Western Australia

Recovery Orders

If your children are taken from your care or relocated without your agreement, recovery orders might be appropriate for your situation.

A recovery order requires that a child is returned. They are returned to the person who applied for the order. You can apply for recovery orders if a child:

  • usually lives with you and:
    • has been taken from you without your agreement, and the other person is refusing to return them
    • has not been returned following an an arranged visit, and the other person is refusing to return them.
  • doesn't usually live with you, but has been moved a long distance away from where they usually live, and you didn't agree to this.

Recovery Orders can authorise police to take appropriate action to find, recover and return a child. The police do not have the power to enforce parenting orders without a recovery order. Unless a child is in immediate danger, the police will not usually get involved without a recovery order.

The court will only make recovery orders if it thinks they are in the children's best interests - for example, if there is evidence that the children are at risk of harm. A recovery order can be an upsetting process for children, especially if the police are required to recover the child. You will need to provide the Court with evidence that it is in the child's best interests to issue a recovery order.

Speaking to the other person

The Court will normally expect you to have attempted to communicate with the other person to try and organise for your child to be returned before going to court. You should try and discuss your child's return unless you feel unsafe doing this or are concerned about your child's safety.

Who can apply for a recovery order

You can apply for a recovery order if you are:

  • a parent of the child
  • a person with a parenting order that the child lives with, spends time with or communicates with you, or
  • a grandparent of the child
  • a person with parental responsibility for the child.
  • someone 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.

You should seek legal advice if you aren't sure whether you can apply.

If you do not have parenting orders, you will need apply for them at the same time as applying for recovery orders.  Parenting orders regulate the parenting arrangements, and you will need them to sort out the future parenting arrangements.

When your child has been taken interstate or overseas

Recovery orders allow the recovery of a child that has been taken interstate, but not if they have been overseas.

Interstate

The police can recover your child if they have been taken out of the State. Once the recovery order has been made, the Court will give you information on how to request the police to recover the child.

If your child hasn't yet been taken interstate, but you are concerned they might be, you can find information on the relocating children page. 

Overseas

A recovery order will not assist if your child has already been taken out of the country or is being kept overseas.

Australia has an agreement (known as the Hague Convention) with other countries to stop the unlawful removal or abduction of children from the country where they usually live. The convention allows a parent to apply for the children to be returned to Australia.

For more information:

If you don't know where your child is

In some situations, you may ask the Court to issue other orders to help locate the child; for example:

  • Location order – requires a person to give the Court information about the child’s location
  • Commonwealth Information order – requires a Commonwealth Government Department, such as Centrelink, to give the Court information about the child’s location that is contained in or comes into the records of the Department
  • Publication order – allows the media to publish details and photographs of the missing child and the person they are believed to be with. However, each case is different and the terms of the publication order can vary. This is usually a last resort and you should seek legal advice first.

The Court will consider the best interests of the child when deciding whether or not to make these orders. The Court must also decide that the person or government department is likely to have information on the child when deciding whether to make the order.

My child was removed from my care some time ago. Can I still get a recovery order?

The longer a child stays with another person, usually the harder it can be to get a recovery order to have the child returned. Seek legal advice as soon as possible. You may still be able to apply for a recovery order, or there may be other options to have the child returned to your care, such as parenting orders.

Will the other person be told I am seeking a recovery order?

You will be required to tell the other person you are applying for a recovery order. You will have to serve the documents on them, so they have the opportunity to attend and take part in the court hearing. This lets the Court hear from everyone involved before making a decision.

In urgent situations, it might be  necessary for the hearing to go ahead without the other party. This is called an ex parte hearing. Urgent situations include where your or the child's safety may be at risk if the other person was told about the application, or a risk that the person may go into hiding with the child.  With an ex parte hearing you won't have to tell the other person about your application until after the court hearing. 

If you are concerned about telling the other person about your recovery order application, you should get legal advice about requesting an ex parte hearing.


Last updated: 16-Apr-2018

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