Recovery Order Without Parenting Order: 6 Important Steps

recovery order without parenting order | Melbourne Family Lawyers

Recovery Order Without Parenting Order: What is a Recovery Order?

A recovery order is a legal directive issued by the Family Court of Australia or the Federal Circuit and Family Court of Australia, empowering authorities to return a child to a parent or individual who has been granted custody rights under an existing court order or agreement.

However, a recovery order can also be sought without a pre-existing parenting order, as per Section 67U of the Family Law Act 1975 (Cth). This is typically pursued when a child is removed from their regular environment by another parent or family member without legal permission, and there is no formal custody arrangement in place.

Eligibility to Apply for a Recovery Order Without a Parenting Order

To apply for a recovery order without parenting order, one must demonstrate a legitimate concern for the child’s welfare due to their unlawful removal or retention beyond a designated time.

Applicants can include parents, grandparents, or anyone concerned with the child’s care. The application does not necessitate a prior parenting order but requires sufficient evidence to convince the court of the immediate need for the child’s return.

Detailed Procedure for Applying for a Recovery Order

Preparing the Affidavit and Supporting Documents

The first step in applying for a recovery order is to complete an Initiating Application (Family Law) and supporting documents, such as an affidavit and a Notice of Child Abuse, Family Violence or Risk, if applicable. These forms are available on the Federal Circuit and Family Court of Australia’s website or at any of the court registries.

The documents must be filled out meticulously and accurately, detailing the applicant’s relationship to the child and the circumstances surrounding the child’s removal or retention.

The affidavit should provide a comprehensive account of the situation, and address why the child’s recovery is in their best interests, as per Section 60CA of the Family Law Act 1975 (Cth). In urgent cases, it should clearly articulate the immediate risks to the child’s safety or well-being.

Filing with the Court

Once the required forms are completed, the applicant must file the Initiating Application (Family Law), along with the supporting affidavit and any other necessary documents.

After filing, the applicant must serve a copy of the Initiating Application and supporting documents on the respondent (the person who has removed or retained the child).

Legal Representation

Due to the legal complexities and significant implications of a recovery order, obtaining legal advice is highly recommended.

A family law solicitor can help draft the application and affidavit, ensure all legal requirements are met, and advise on the best course of action based on the specifics of the case.

Urgent Applications

When the child’s safety is in imminent danger, the court has mechanisms to expedite the application hearing. In these cases, it is critical to communicate the urgency through the affidavit when applying. The court may then prioritise the case to ensure a quicker resolution to protect the child’s safety.

Court Hearing and Orders

Once the application is filed, a court date will be set. During the hearing, the judge will consider all the evidence presented and decide whether issuing a recovery order is justified and in the child’s best interest.

If the order is granted, it will specify the arrangements for the child’s return, and law enforcement may be involved to assist with the recovery.

Post-Recovery Process

After the recovery order is executed, there may be follow-up hearings to assess the child’s situation and make further orders regarding the child’s long-term welfare and living arrangements.

Impact on the Child and Family

While the primary goal of a recovery order is the safe return of the child, it’s essential to consider the emotional and psychological impacts on the child and family members.

The process should be managed sensitively to minimise stress and trauma. Support services and counselling are advisable to aid the family during and after recovery.

Recovery orders are vital in safeguarding children from unauthorised removal or retention. Obtaining a recovery order without a parenting order is feasible and is particularly important in scenarios where no formal custody agreement exists.

It ensures that the child’s welfare is maintained and they are promptly returned to a safe environment.

Director of Melbourne Family Lawyers, Hayder manages the practice and oversees the running of all of the files in the practice. Hayder has an astute eye for case strategy and running particularly complex matters in the family law system.

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