Location Orders And Recovery Orders

A location order or recovery order may be required when one parent prevents the other parent from having contact with a child. Where the location of a child is not known, a location order may be needed. Where a parent removes a child from the other parent and fails to return the child, a recovery order may be needed. These orders are governed by section 67 of the Family Law Act 1975.

Location order

Under section 67J a location order is an order which requires:

• a person to provide the court with information the person as or learns about a child’s location;
• a government agency (such as the Australian Federal Police or Centrelink) to provide the court with information about a child’s location that is the agency’s records.

Applying for a location order

An application for a location order should be filed in the Federal Circuit and Family Court of Australia if there is a current parenting case in that court.

An application for a location order must be made on an ex parte basis, meaning the other party is not required in court when the order is made. A copy of the application must be served on the other party prior to the hearing. A location order can be sought by:

• a person with whom the child lives, spends time, or communicates under a parenting order;
• a person who has parental responsibility for a child under a parenting order;
• a grandparent of the child;
• any other person concerned with the care, welfare or development of the child.

A supporting affidavit must accompany the application. It must outline:

• the personal history of the parties;
• details of previous family law proceedings;
• details about the child and their living arrangements;
• where the child might be and the reason for this belief;
• steps that have been taken to find the child;
• why it is in the child’s best interests to be returned;
• the likely impact on the child if a location order is not made;
• why the applicant believes the other party will have the required information.

A child’s best interests must be the paramount consideration in making a location order.

The order stays in force for 12 months, or longer if the court considers it appropriate. A person to whom the order applies must provide the information sought as soon as practicable and must comply, regardless of any other law which may apply. This type of order is appropriate when a party believes the child is still in Australia.

Recovery order

Under section 67Q, a recovery order is an order which requires the return of a child to:

• a parent of the child;
• a person with whom the child lives, spends time, or communicates under a parenting order;
• a person who has parental responsibility for a child.

A recovery order can be sought by:

• a person with whom the child lives, spends time, or communicates under a parenting order;
• a person who has parental responsibility for a child under a parenting order;
• a grandparent of the child;
• any other person concerned with the care, welfare or development of the child.

The court may make an order that the child be returned at a specified time and place, either by the other party or by a third party. It can also order an entity, such as the Australian Federal Police, to recover and return the child to the applicant.

In some cases, the order might authorise police to take appropriate action, such as to stop and search vehicles, or enter premises, to recover a child.

The court can also make directions for the child’s care pending the child’s return, prohibit further removal of the child, and authorise the arrest of the person who took the child.

Applying for a recovery order

An application for a recovery order should be filed in the Federal Circuit and Family Court of Australia if there is a current parenting case in that court.

A supporting affidavit must accompany the application. It must outline:

• the personal history of the parties;
• a list of previous court hearings and family law orders;
• details about the child and where they usually live;
• how and when the child was taken or not delivered;
• where the child might be and the rason for this belief;
• steps that have been taken to find the child;
• why it is in the child’s best interests to be returned;
• the likely impact on the child if a recovery order is not made;
• any other factors relevant to the case.

A Notice of Risk is also required by the applicant. It details any risk of harm to the child while the child is in the other party’s care.

Publication order

This order allows the media to publish details and photos of the missing child and the person with whom they are believed to be. The terms of the order can vary with each case. This order is usually issued as a last resort.

For advice or representation in any legal matter, please contact Armstrong Legal.