Blog post by Mary Basta and Sarah Nicholls
The 60 Minutes crew recently hit the news headlines after being accused of involvement in an operation to recover children from a street in Beirut in an attempt to have them reunited with their mother. It was a widely publicised debacle. Generally, the longer a child remains with the other party, the more difficult it is to successfully obtain a recovery order.
If you are faced with a situation where your child has been wrongfully taken, it is essential that you take appropriate action immediately and seek urgent legal advice.
What is a recovery order?
A recovery order is an order made by a court requiring the return of a child to a:
- parent of the child;
- person who has a parenting order that states the child lives with, spends time with or communicates with that person; or
- person who has parental responsibility for the child.
Who can apply for a recovery order?
A recover order may be applied for by:
- a person with whom the child is to live, spend time with or communicate with under a parenting order;
- a person who has parental responsibility for the child;
- a grandparent of the child; or
- any other person concerned with the care, welfare or development of the child.
How do I apply for a recovery order?
The application process for a recovery order will depend on whether or not you have proceedings currently before the court. In any event, an application to the court is required together with a supporting Affidavit which sets out the background to the matter, details of how the child was taken or not returned to you, steps you have taken to recover the child and why it is in the child’s best interest that they return to you.
What does the court consider when making a recovery order?
A court must regard the best interests of the child as the paramount consideration in deciding whether to make a recovery order. The court is required to give greater weight to the consideration of the need to protect the child from harm.
If the court decides to make a recovery order, the order will authorise or direct another person or persons to find, recover and deliver the child. A copy of the orders must be provided to that person. In most cases, this is the Australian Federal Police.
International child abduction
If your child has been taken overseas without your consent, the Hague Convention may apply.
The Hague Convention is an agreement in force between Australia and a number of other countries. It provides a framework for seeking the return of abducted children to their home country.
It is essential to seek urgent legal advice in the event that you suspect your child is at risk of being removed from the country.
Contact Culshaw Miller Lawyers for more information.