Parenting matters after divorce can get messy, and some parents end up wanting to take their child away from their ex-spouse. To do this, a parent must obtain a recovery order. But what if the parent who filed for a recovery order did it without reason or out of spite? This is the time when the other parent will ask themselves, "How to stop a recovery order?"
A recovery order, as the term states, recovers someone or something. In our case, a recovery order recovers a child from a parent or legal guardian. Why? A family court will only approve this if the concerned parent believes that:
- The child is in immediate danger
- Their child is being taken away from them without consent
- The other parent isn't following the parenting order agreed upon
If there is a parenting order in place, and one parent does not return a child under such orders, then a recovery order application may be lodged with the Court. Afterwards, the court will work with the Australian Federal Police so they can also help with the recovery case.
However, not all recovery cases are successful, and some parents who seek such orders can be shut down. They may have had false allegations, or it was a false alarm because of an emergency.
How Does a Recovery Order Work?
Before we discuss how to stop a recovery order, it would be helpful to understand the multiple forms a recovery order may take.
According to Section 67Q of the Family Law Act 1975, recovery orders are court-ordered and require a child to be returned:
- To a child's parent or guardian;
- To someone the child lives, communicates or spends time with in accordance with a parenting order; and
- To anyone who has parental responsibility (custody) of the child.
What actions does a Recovery Order authorise?
- Prohibiting the child from being removed from the care of a person above again;
- Instructing and permitting the relevant authorities to locate and return the child to a person shown above; and
- Outlining how a child should be cared for before their return.
The Application Process of a Recovery Order
If you want to know how to stop a recovery order, you must know how the application process works. By now, you must know that your ex-spouse or a legal guardian applied for the recovery order. However, grandparents or any person concerned about a child's welfare can also apply for the order.
Here's what the applicants need to submit in order to apply for a recovery order:
- A history of the applicant and the person believed to have the child
- Any previous court hearings or family law orders
- Where the child's location is or where they typically live
- How was the child taken away from the applicant
- The applicant's efforts to locate the child
- Why it's in the child's best interests to return to the applicant
- What may happen if the court does not approve the recovery order
- Any additional information
How To Respond To a Recovery Order
It's not easy to receive an order to return your child to your ex-spouse. You know to yourself that you are following the parenting order, and you care deeply for your child. Most people don't want to be in this position. So, if this is the case, and they want to know how to stop a recovery order, they should file a response with either the Family Court or the Federal Circuit Court.
Cases like this are urgent and courts might even fast-track the court date, since there are children involved. As such, the Court may hear the case without the need for your presence in Court.
Suppose a recovery order made against you is referred to the AFP, you mustn't do anything to inhibit the police from executing its terms. Doing so will result in a breach of Section 67X of the Family Law Act. Remain patient, and find out what you can do for the moment, such as seeking legal advice as soon as possible.
What Can You Do?
There are only a handful of things you can do if you want to know how to stop a recovery order. Look at the requirements to file the order. Do you believe that your ex-spouse's claims are true? Are you a risk to your child? Did you take your child without their consent? If all of these claims are false, then you candemonstrate the following:
- There is an urgent requirement for you to move to your new location.
- You and the other parent/guardian had previously agreed on you moving to another location, among other things, in your parenting arrangement; and
- There are risks of family violence or harm involved with the other parent and not you.
What If I'm Not Sure Where My Children Are?
Let us now stray away for a bit with the topic of how to stop a recovery order and discuss another circumstance in family law matters. For example, you filed for a recovery order thinking your ex-spouse took your child without your consent. In an extreme turn of events, you find out that your child wasn't with your ex-spouse either.
This is an alarming case and while it's okay to panic and feel distraught, this won't get you anywhere. Do your best to stay calm because you have several legal options at your disposal.
Before taking on any legal options, you must try and reach your former partner or whoever has taken your child without your permission and try and resolve the matter informally for the quickest resolution. If this does not work, you can try and contact mutual friends or their relatives and try and have them speak on your behalf.
Still no leads? Then you can try the legal route of getting a location order. This order essentially requires a person or organisation to provide information about a child's whereabouts. The forms for the application process can be found here.
In case your missing child was taken outside of Australia without your knowledge or consent, you can reach out to the Commonwealth Attorney General's Department here. They can help with international child abduction cases and work with the Hague Convention.
Read: Family Law Amendment & Hague Convention | JB Solicitors
Locate Your Child With Our Help
When you want to stop a recovery order, it is essential to note that every situation is different. It could be simple understanding or something that can escalate to a heated legal battle. Regardless, a missing child will always cause panic and disputes.
If you are in a situation where you are asking yourself how to stop a recovery order, then you should seek legal assistance as soon as possible. Here at JB Solicitors, we'll make the process as pain-free as possible. We have fixed-fee pricing for family law, giving you a clear sense of the costs from the start, and we will be sure to help you out every step of the way.
With years of experience under our belt, our lawyers pride ourselves on making each client's family law experience as positive as possible.
Contact JB Solicitors today to speak with one of our friendly and experienced family lawyers.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
