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    When a parent takes a child – Recovery Orders


    One of the most traumatic events that can occur in family law parenting matters is when there is a breakdown in a relationship is when one parent takes the child.  Without urgent action, taking a child can have serious effects on the child

    The option open to the other parent is to apply to the courts for a recovery order.  Time is of the essence in such matters.  Generally, the longer a parent delays in making an application for recover, the less chance there is of success.

    Recovery applications are complex areas of family law.  Poorly drafted or thought out applications can result in costs orders against an unsuccessful applying parent, or can have significant long term consequences for the family law litigation itself.

    Typically a recovery order provides for the return of a child to a parent.  This is not always the case   The courts can place a child in the care of another party such a  grandparent or anyone who is concerned with the care, welfare and development of the child.

    Recovery applications can be made when there are already parenting orders in place, or more usually, when there are not any parenting orders which state who the child spends time with.

    Court Documents Required

    In the case whether there are not any orders in place, a parent has to file an Initiating Application, an affidavit and Notice of Child Abuse, Family Violence or Risk.  The Initiating Application contains the orders that are being asked for, including the recovery of the child. These are what are known as interim orders.  Final orders which set out where the child should live in the longer term are also included.  The affidavit provides detailed information which supports why the child should be returned to the applying party.  

    The Notice of Child Abuse informs the court of whether there are risks to the child’s safety health or welfare, whether there has been any family violence and its risks to the child, whether there are mental health issues or other safety factors that the court should be aware of.

    In many recovery actions, there are risk factors such as family violence which must be detailed for the court.  It is important to also gather independent evidence to support the application.  This can include doctor’s reports, school reports, copies of Protection Orders etc.  A court will give such evidence considerable weight as it is being provided by parties not connected with the family law dispute.

    As well as the above documents, a cover letter should be attached to the Application explaining briefly to the registrar why the matter is urgent and should be placed before a judge at the earliest opportunity.  Such letters can be crucial to having the application listed quickly.   Experienced lawyers should be engaged to draft this letter and accompanying court documents to ensure the best chance of a successful outcome.

    What the court Considers

    The court considers a variety of factors in determining whether a recover order should be granted.  These can include the following:

    • The age of the child;
    • Who has been the child’s primary carer and what is the child’s relationship with the party who removed the child;
    • Are there any risks to the child in remaining in the other party’s care:
    • What has been the actions of both parties in the lead up and since the removal of the child;
    • Does the child have medical issues, and who is best placed to see that these are attended to;
    • Where has the child normally lived and what was their routine;
    • Where the child attended school and whether the removal of the child has resulted in a change of schools.
    • What impact the change in living circumstances has had on the child;
    • What impact will a recovery order have on the child, causing them to return to their previous carer;

    Whenever a court has to make a parenting order, including a recovery order, the paramount consideration for a court what is in the child’s best interests.  It may be that after weighing issues such as those above, a court comes to a decision that it is in the child’s best interests that they are returned to their previous carer.  In other circumstances it may not.

    When to apply

    Usually the first step in the process is to ask the other party to return the child. A letter from a solicitor outlining the request and the potential consequences of the failure to comply can resolve many of these cases.  However if the requests is rejected the next step is to file an application with the court.  

    It is very important that there is not any delay in making the application.  The longer the child is with the other party the more settled they become in their new circumstances.  A court will not automatically cause a child to have their life overturned if this would be considered too disruptive to them.  The longer a child is left with the other party, the stronger their argument that the child should not suffer a second disruption.

    What will happen at court?

    What can happen when the application is first heard at court is difficult to predict. It will depend on the facts of the case, how urgent it is, and what capacity the court ahs to hear the matter quickly.

    A court may do any of the following at the first mention of a recovery order application:

    • Order the return of the child and make other interim orders;
    • Adjourn the matter so that additional evidence can be gathered (for example subpoenas to be issued);
    • Set a date for an interim hearing;

    The first court date can be crucial to success or otherwise of the application.  The judge revies the affidavit material of both parties in some detail and questions either the parties or their legal representatives as to why an order should or should not be made that day.  

    Well prepared and experienced family lawyers who are able to identify the vital information that court will focus on in such applications are the key to success.  We at Reeslaw in Toowoomba have extensive experience with recovery applications and are able to provide the highest standards of advice and representation to ensure the best possible outcome in such matters.

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