NSW Child Custody - Child Abduction/Recovery Orders


In the absence of a court order, both parents of a child have parental responsibility. This means that both parents have all the duties, powers, responsibilities and authority, which by law, parents have relating to their children.

In situations where one parent retains a child, without the agreement of the other, and there are no court orders in place, the police cannot intervene unless authorised by the Court to recover the child from the other parent. In most cases such as this, the parent seeking to recover the child would need to file both an application for parenting orders and recovery orders. In circumstances where a parent has retained a child contrary to court orders, then only a recovery order may be necessary.

The meaning of ‘Recovery Order’ is found under section 67Q of the Family Law Act 1975. It is an order made by the Court to do any the following:

Require the return of the child to: 

*a parent of the child; 

*a person whom the child is to live with under a parenting order;

*a person whom the child is to spend time under a parenting order;

*a person with whom the child is to communicate with under a parenting order;

*a person who has parental responsibility for the child 

They may also:

*authorise a person or persons to stop and search any vehicle, vessel or aircraft, and enter and search any premises to recover a child;

*authorise or direct a person to deliver a child to any one of the above persons mentioned above;

*give directions about the day to day care of child until it is returned or delivered to another person;

*prohibit a person from again removing or taking possession of a child;

*authorise the arrest of a person who again removes or takes possession of a child.

A person can apply for a recovery order of a child if they are a parent of the child, a person who has a parenting order that states that the child lives with, spends time or communicates with or a person who has parental responsibility.

The Court itself is not a child recovery agency. If an order is made by the Court authorising a person to recover a child, in most situations, this will be the Australian Federal Police. In circumstances where the location of the child is unknown, you may also ask the Court to issue other orders to locate the child. 

They may include orders that government departments, such as Centrelink, are required to provide information regarding the location of the child or publication orders that the media can distribute images of the child and ask for public assistance in locating the child.

WHERE TO NEXT?

Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?

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