Recovery Orders in Australian Family Law

20 April 2025 in Family and Divorce Law | 6 min read | skip to FAQs

The possibility of your child being taken by a former partner is a rare but very real prospect that parents may face. However, this risk has been recognised by the courts, which have implemented solutions for this problem should it arise, predominantly a child recovery order. This article examines the law in relation to recovery orders. For information on location orders in Australian family law, please see our article on location orders.

What is a Recovery Order?

In Family Law proceedings, a Recovery Order is  made pursuant to section 67Q of the Family Law Act 1975 (the Act), which can require a person to return a child to their parent (or another person with parental responsibility for the child). Section 67Q allows the court to expand upon this general requirement to make orders that authorise stopping and searching vehicles, entering and searching premises, directing another person or persons to assist in recovering the child, as well as authorising the arrest of a person if they attempt to remove the child again in a similar matter.

Therefore, recovery orders are very useful and powerful tools of the court for enabling the return of your child if taken by a former partner.

Who can Apply for a Recovery Order?

Under section 67T of the Act, the following individuals may apply for a recovery order if:

1. A person the child lives with pursuant to a parenting order;
2. A person the child spend times with pursuant to a parenting order;
3. A person with whom the child communicates pursuant to a parenting order;
4. A person exercising parental responsibility for the child pursuant to a parenting order;
5. A child’s grandparent; or
6. Any other person concerned with the child’s care, development, or welfare.

The Application Process for a Recovery Order

Applications for recovery orders need to be filed in the Federal Circuit and Family Court of Australia (FCAFCOA). How to proceed at this point depends on whether there is a current parenting order in place. If there are no parenting orders, an Initiating Application (Family Law) needs to be filed. A parenting order should be applied for, alongside the recovery order.

However, if there are currently proceedings ongoing relating to the matter, then an Application in a Proceeding should be filed.

Regardless of which form is filed, it must be clearly stated exactly what orders you are requiring the FCAFCOA to make, as well as information about your child. Additionally, an affidavit in support of your application will need to be filed, detailing the following:

1. The history of your relationship between yourself and whoever you presume your child is with;
2. Any previous proceedings and orders relating to this matter;
3. Information about your child and their current living arrangements;
4. Details about how your child was either taken or not delivered to you;
5. Where you believe your child is located and why you believe this is the case;
6. Any steps already taken to find your child;
7. Why it would be in your child’s best interests to be returned to you;
8. What impact your child will face in the absence of a recovery order; and
9. Any other relevant factors.

The above is not an exhaustive list and may need to be expanded upon depending on the circumstances of your case.

The Concept of the Child’s Best Interests

Under section 60CA of the Act, the child’s best interests must be the paramount consideration of a court making a parenting order (which includes child recovery orders). The factors for determining a child’s best interests are set out in section 60CC:

1. The child’s safety as well as the safety of those who would care for them;
2. Any views the child has expressed;
3. The child’s developmental, psychological, emotional, and cultural needs;
4. How well the person proposed to have parental responsibility can meet those needs;
5. The benefit to the child of having a relationship with their parents;
6. Whether there is a history of family violence (if applicable); and
7. The child’s right to enjoy Aboriginal or Torres Strait Islander culture (if they are indigenous).

Generally, the court will recognise that a child’s best interests would be met by maintaining a stable family life, and so will authorise a recovery order seeking to restore that stability. For more information on the concept of the best interest of the child in Family Law, please see our article on this topic.

Executing a Recovery Order

A recovery order has immediate effect from the moment it is granted. Unless otherwise specified, it will be in force for 12 months. The Australian Federal Police (AFP) are normally the authority responsible for executing the order. In order to ensure the best prospects for the successful execution of the order, briefing the AFP with as much information on the matter as possible is crucial.

International Custody Issues

If you believe that your child has been or is about to be taken abroad, the first step is reporting the matter to the police, including the AFP to place your child on the Family Law Watchlist. If your child is placed on this watchlist, this will increase the likelihood of preventing their removal from Australia if they are yet to leave the country.

Depending on which country you believe your child has been taken to, the Australian Central Authority, part of the Commonwealth Department of Social Services, may be able to provide substantial assistance.

Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, a treaty to which signatory countries can assist each other in facilitating the lawful return of children to their parents across borders. New Zealand, the United Kingdom, member states of the European Union, China, India, Canada and the USA are all signatories, alongside several others (a total of 91 countries are members of the Convention).

Australia also has separate treaties with two other countries not party to the Convention: Egypt and Lebanon, which effectively fulfil the same purpose of the Hague Convention.

However, for other countries, the process for recovery is considerably more difficult and the Australian Central Authority would only be able to provide limited assistance, which would necessitate direct contact with the courts of non-member countries.

In such circumstances, it is essential to seek urgent legal advice. An experienced family lawyer can prepare an application for a child recovery order to be executed in the relevant country. Please see our article on how Brander Smith McKnight Lawyer Sydney successfully defended a child recovery order filed in England, pursuant to the Hague Convention.

How can BSM Sydney Lawyers assist you?

Recovering a child is something no parent should have to undertake. However, the reality is that this does occur and legal steps often need to be taken to recover the child. The family lawyers at Brander Smith McKnight are highly experienced and empathetic to the difficulties associated with the process. Our lawyers regularly deal with the FCAFCOA. BSM Sydney lawyers will strongly represent you, advocating and negotiating for you and your child. We will support you, relieving some of the stress involved in the legal process by drafting and filing a recovery order. BSM Family Lawyers Sydney offer a free-20 minute consultation.

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BSM Lawyer Sydney has offices conveniently located in Sydney CBD, Sutherland, Parramatta, Shellharbour and Wollongong.