It is not unusual for a party to a family dispute to find themselves in a situation where it is necessary to act quickly in response to an unforeseen event. The Divorce Lawyers at Meredith Lawyers discuss the appropriate actions might be to seek court orders to enforce an existing order or provide injunctive relief. In situations such as this, it is of critical importance to take prompt and direct action
Applying for a Recovery Order
A party can apply for a recovery order if:
- The child lives with, spends time with or communicates with them, and this is set out in a parenting order;
- A party is the person who has parental responsibility in a parenting order for the child; and
- A party is a grandparent of the child, or a person who is concerned with the care, welfare, and development of the child. They do not need to have a parenting order stating this.
A common example is in respect of children’s issues is where a party is being denied access to a child by the actions of another party. In such instances, it may be necessary to seek a ‘recovery order’ by way of an urgent application to the court. This is the case irrespective of whether court proceedings are underway.
Our team of family lawyers at Meredith Lawyers understand that part of the frustration in such circumstances is that despite there being either interim or final parenting orders in place, a new application must be filed with the court seeking enforcement of existing orders and/or that a recovery order be issued.
Almost without exception, it is only when the court directs that a recovery order be issued that the Australian Federal Police (AFP) will intervene in the context of a family dispute to recover a child. It is often the case that the court orders that the other party ‘delivers up’ the child and if they fail to do so the recovery order be issued, after which it is reasonable to expect a relatively quick turnaround.
The party intending to apply for the order should get as much information as possible to help authorities find and return the child.
If there are no current parenting order, an application can be made for such an order, apply at the same time as the recovery order application. On the application form, the applicant must state what orders they are seeking from the court.
The Application must be accompanied with an affidavit in support of the application for recovery orders, which should include details of the following points if they are relevant to the circumstances:
- A short history of the relationship with the person the child is thought to be with.
- A summary of the previous court hearings and any family law orders.
- Details about the child and where they usually live.
- An explanation of when and how the child was taken from the applicant, or not returned to them.
- Where the child might be and why the applicant believes that. The chances of the applicant party, of recovering the child will improve if they have information about where the child is likely to be.
- The steps (if any) that have been taken to find the child.
- Why it is in the best interests of the child to be returned to the applicant, and the likely impact on the child if a recovery order is not made; and
- Anything else relevant to the case, including evidence relating to any complaint that the person with the child might have about the applicant.
Urgent Ex Parte Applications
There may be a need to seek that the orders be made ex parte. The court’s powers are limited in this respect, so it is important to include sufficient information in support of the application, or the court may be reluctant to make the order being sought without first hearing from the other side. Among the issues to address in the supporting affidavit are:
- That the rules relating to dispensing with service have been complied with;
- Whether there have been any previous proceedings between the parties;
- Whether there are any current orders;
- The reason why the other side hasn’t been informed in respect of the application;
- The nature and immediacy of the damage which may result if the order being sought is not made; and
- The grounds for seeking that the order be made on an urgent basis.
Ensuring the Application will be heard on an urgent Basis
The same logic applies when requesting that the court take any kind of urgent action in respect of family disputes, be it hearing a matter on an urgent basis, making an order preventing a party from interfering with assets of the relationship, or preventing a party from travelling with children.
The main task is to bring the issue to the attention of the court and raise a convincing argument that urgent action is warranted and necessary in the circumstances.
If filing at the court registry, a short one-page covering letter which encloses the urgent application and supporting affidavit can be used to highlight to the court staff the urgent nature of the application and is often a good way of securing a priority listing in the court.
In deciding whether to make a recovery order, the foremost consideration is what is in the best interests of the child. The Court may make an order for a person to return the child to the applicant at a specific time and place.
The Court may also make a recovery order, which authorises or directs someone, such as the police, to take any necessary steps to find and return the child to the applicant. If the Court makes this order, it must be given to those persons directed to return the child.
In most cases this is the AFP. The AFP will usually only recover the child if the applicant is nearby and can receive the child, except in exceptional circumstances so the applicant may need to travel to a place to collect the child.
When the child is returned, the applicant must notify the registry staff at the court as soon as possible.
For more information on divorce and separation, please contact our experienced specialist family law team today on 1300 537 306