Recovery orders are usually made for a child to be returned to their primary carer, or the parent with whom a parenting order states the child lives with or the parent who has parental responsibility for the child.
In Renald & Renald (No.2) [2017] FamCAFC 133 (14 July 2017) on appeal, Thackray J set aside a Magistrates’ Court refusal to make a recovery order for the Mother. In this case the Father withheld the children after the Mother agreed to him having the children outside Interim Orders, saying the children did not wish to return to the Mother. Thackray J said that an order requiring the child to be returned “may send a message to the legal profession and their clients that the Court is willing to enforce its orders, and that parents should not take matters into their own hands where there is no evidence of risk”.
On one hand, parents should not be taking matters into their own hands, particularly swaying away Court Orders, including unilaterally withholding a child or removing a child from his/her primary carer where no evidence of risk is present. Aside from the fact that there is a potential breach of the Orders, you may run the risk of a recovery application with an order for costs made against you.
On the other hand, before rushing off and making an application for recovery order, it is always sensible to see if the situation can be resolved between the parents outside Court. It might be worthwhile sending a text to the other parent withholding the child setting a deadline, for example – “you are currently in breach of the Orders, unless you return the child back by 10:00am tomorrow, I will have to take legal actions in Court”. The Court would want to see that you have taken steps to find the child and made several attempts to negotiate with the other parent for the child’s return before taking appropriate action to involve outside authorities such as the Australian Federal Police to find, recover and deliver the child to you. It is also important that you collect as much information as possible about where the child is likely to be to increase your chances of recovering the child. Therefore your Affidavit material is absolutely crucial in this circumstance.
If all else fails and the child is still not returned to you, consider seeking legal advice from our friendly and experienced family lawyers who can assist you promptly through this emotional and difficult situation.