26 Aug 2014

A recovery order is defined in section 67Q of the Family Law Act 1975. It is an order of the Court that can require a child be returned to a:

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

A recovery order can authorise or direct a person or persons, such as police officers, to take appropriate action to find, recover and deliver a child to one of the people listed above. As well, a recovery order can provide directions about the day-to-day care of a child until the child is returned or delivered. Additionally, a recovery order can also prohibit the person from again removing or taking possession of the child. You can apply for a recovery order if you are one of the following categories of people:

  • a person who has parenting orders from the Family Court in place about the child
  • a grandparent of the child
  • a person who is concerned with the care, welfare or development of the child. This would include
  • a parent who does not have Family Court orders in place.

What happens if I move without getting the other parent or person’s permission?

It depends on the particular circumstances of your case. If you only move a short distance away and it does not affect the other parent spending time with your child, the other parent or person might not do anything about the move. Consider if there are parenting orders that stop you from moving as there may be serious consequences, including an order that the children live with the other party. You should get legal advice on your particular circumstances.

Relocating interstate or overseas

However, if you are planning on moving interstate or overseas or any other move that will affect the way the other parent or person spends time with your child you should either get the other parent to agree or ask the Family Court for an order allowing you to move. If you move without doing the above, the other parent may ask the Family Court for a recovery order to return your child to where they normally live. You do not need there to be parenting orders in place to make an application for a recovery order.

 
How does a Court decide if a parent can relocate with a child?

Family law legislation does not contain any specific provisions in relation to relocation. The Court will consider the best interests of a child as the paramount consideration in each application for relocation. For more information on best interests of a child please see https://www.hhg.com.au/blog/best-interests-of-the-child. The Court will take into account considerations such as:

  • the proposals for the other parent to spend time with the child if the Family Court allows the child to move
  • the existing relationship between the child and the parent they live with
  • whether the parent the child lives with has been the primary carer for some time and is the preferred parent for the child to live with
  • how much time the child currently spends with the parent they do not live with, what their relationship is like and whether the relationship will continue or be maintained if the move is allowed
  • the distance and permanent nature of the move
  • what impact it will have on the child to leave friends, extended family and school etc
  • the wishes of the child
  • the age of the child
  • the cost and ease of the other parent spending time with the child
  • other ways the child can continue to have a relationship with the other parent

This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.

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