Recovery orders when a child is withheld or taken

If your child has been taken or is being kept from you, it is frightening. This guide explains the legal tools that exist to help, and the calm, sensible steps to take. It is general information, not legal advice. If your child is in immediate danger, call 000 now.

What a recovery order is

A recovery order is an order of the Federal Circuit and Family Court of Australia (FCFCOA) that a child be returned to a person. It can require the child be returned to:

• a person the child lives with, spends time with or communicates with under a parenting order; or
• a person who has parental responsibility for the child.

Importantly, a recovery order can authorise or direct people — including police officers and the Australian Federal Police (AFP) — to take appropriate action to find, recover and deliver the child, and to stop the child being taken again. It can also require a person to hand the child over.

A recovery order is a civil order made under family law. It is different from a criminal matter, although police can be involved in enforcing it.

When you might apply

You might apply for a recovery order when:

• a child is not returned after spending time with the other parent;
• a child is withheld from you contrary to a parenting order or an agreement;
• a child has been taken without your consent; or
• you are worried a child is about to be taken or hidden.

You can apply whether or not you already have parenting orders. You do not have to be the child’s parent — grandparents and other people concerned with the care of a child can also apply.

The child’s best interests come first

The Court does not simply hand a child back to whoever asks. When it decides whether to make a recovery order, the Court must treat the child’s best interests as the most important consideration, and since 6 May 2024 the child’s safety is the paramount consideration. The Court will look at what has happened, why, and what arrangement keeps the child safe and supports their wellbeing.

That is why it matters to be honest and specific about your concerns, and to focus on the child rather than on scoring points against the other parent. If there are safety concerns on either side, raise them clearly — see family violence and parenting orders.

How you apply

Where you file depends on whether you already have a case running:

• If there are no current proceedings, you generally file an Initiating Application (Family Law) seeking a recovery order.
• If there is a current case, you generally file an Application in a Proceeding, or amend your existing application or response.

In every case you must also file a supporting affidavit. This is your sworn account of the facts — who the child is, the existing arrangements or orders, what has happened, when the child was taken or withheld, what you have done to try to resolve it, and why the child should be returned. A clear, factual, well-organised affidavit is central to an urgent application. See applying for parenting orders and, if you are running your own case, representing yourself.

Urgent and without-notice applications

Recovery orders are usually sought urgently. In some situations they are made without notice to the other party (this is called an ex parte application) — for example, where warning the other person might prompt them to hide or move the child. If an order is made without notice, the matter will usually come back to court soon afterwards so the other party can be heard.

Because of the urgency and the technical requirements, get legal advice immediately. A lawyer or Legal Aid can help you file quickly and correctly, and can advise whether a without-notice application is appropriate.

Finding a child — location and information orders

Sometimes you do not know where the child is. Two tools can help the Court find out:

• A location order requires a person to give the Court information they have (or later obtain) about a child’s whereabouts.
• A Commonwealth information order is a type of location order that requires the Secretary of a Commonwealth government department (for example, Centrelink or Services Australia), or a Commonwealth authority, to provide information in its records about a child’s location. A Commonwealth information order stays in force for 12 months.

These orders help the Court and the recovering parent locate a child so a recovery order can actually be carried out.

Preventing a child being taken overseas — the Family Law Watchlist

If you are worried your child may be taken out of Australia without your consent, you can ask the Court to place the child on the Family Law Watchlist (sometimes called the airport watch list) while the child is still in Australia.

A Family Law Watchlist order places the child, and sometimes a parent, on a list monitored by the Australian Federal Police at all international airports and seaports across Australia. It is designed to help stop a child being removed from the country. If you have a genuine and urgent concern, act quickly, because the Watchlist can only help while the child is still in Australia. Confirm the current process with the FCFCOA, as procedures for urgent applications and the Watchlist are updated from time to time.

If a child has already been taken overseas

If your child has already been taken to another country, this becomes a specialist and urgent area of law.

• Report to police immediately if you are concerned about the child’s safety.
• Australia is a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, a treaty that provides a legal process for seeking the return of a child wrongfully taken to (or kept in) another Convention country. An application for return generally must be made within 12 months of the removal.
• The Australian Central Authority, within the Commonwealth Attorney-General’s Department, handles Hague Convention applications. You can contact it on 1800 100 480.
• If the child has been taken to a country where the Hague Convention does not apply, return cannot be sought under the Convention, and different steps are needed. The Department of Foreign Affairs and Trade (DFAT) may be able to offer limited consular assistance.

Get urgent specialist legal advice as soon as you can, because timing and the country involved make a real difference to your options.

Practical urgent steps

If a child has been taken or withheld, and there is no immediate danger requiring 000, these steps help:

1. Get legal advice immediately. Contact a family lawyer, Legal Aid, or a community legal centre. Speed matters.
2. Contact police if there is a safety risk, or if a parenting order has been breached. Take a copy of any orders with you.
3. Gather your records and evidence. Collect copies of any parenting orders, the child’s details, recent messages, a timeline of what happened, and anything that shows the usual arrangements. Good records make an urgent application far stronger — see keeping records.
4. Stay calm and child-focused. Keep communication measured and in writing where possible.
5. Do not retaliate or take the law into your own hands. Do not try to grab the child back yourself, and do not make threats. This can put the children at risk, escalate conflict, and harm your case.

Safety first

Recovery orders exist because the system takes withholding and removal of children seriously — but the goal is always the child’s safety and wellbeing, not winning. Use the legal process, lean on police where safety or a breach is involved, and get advice early.

Forms, fees and urgent-application procedures change. Confirm the current requirements with the FCFCOA (fcfcoa.gov.au) and, wherever possible, have a family lawyer help you. In an emergency, always call 000.