When one parent refuses to return a child to the other, an urgent application to ‘recover’ the child can be made to the Family Court.
A set of ‘Recovery orders’ normally include the following:
1. An order for the immediate return of the child (or children);
2. An order directing the police to locate and return the child should the other parent fail to do so on his or her own; and
3. An order securing the residence of the child to live with the parent applying for the order.
When making recovery orders, the Court must determine that it is in the best interests of the child to do so. This is the paramount consideration for all parenting orders. Other important factors for the Court to consider include whether or not the child is at a risk of harm; and whether or not the child has suffered significant disruption to their primary care.
In serious cases where the applicant parent is alleging an immediate risk of harm to the child by remaining in the care of the other parent, the Court may hear the matter on an ‘ex parte’ basis. This means ‘by one party,’ namely, without the other parent present.
If a recovery order is granted and both parents are present, the Court will normally set a date and time for changeover to occur. This is the least intrusive order for the return of a child. However, if this does not happen, the Court can then direct members of the State and Federal police to locate and return the child this way instead. These orders are not issued lightly and tend to be considered the last resort, as it can be quite traumatic for a child to be exposed to police removal.
If you find yourself in this position, we can tend to your matter immediately and with great sensitivity. Please do not hesitate to contact us on (02) 8268 4000 and one of our family lawyers will be happy to talk to you about your options.