NOTE: When a parenting order is made, each person affected by the order must comply with it. For information on the process, should the order be breached, see Compliance and enforcement.
If your child (or children) normally lives with you and their other parent (or another person) has your child and is refusing to return them to you; or you have parenting orders, and the other party is preventing your child from living with your or spending time with you in accordance with those orders, you may be able to apply for a recovery order.
If you do not know where your child is, you can also apply for orders to help you to find them (called a Commonwealth information order or location order) when you apply for recovery orders.
What is a recovery order?
A recovery order is an order of the Court which can require a child to be returned to:
- a parent of the child
- a person who has a parenting order which states the child is to live with, spend time with, or communicate with, that person, or
- a person who has parental responsibility for the child.
See section 67Q of the Family Law Act 1975.
Who can apply for a recovery order?
You can apply for a recovery order if you are:
- a person whom the child lives with, spends time with, or communicates with, according to a parenting order
- a person who has parental responsibility for the child according to a parenting order
- a grandparent of the child, or
- a person concerned with the care, welfare, and development, of the child. For example, you may be the person with whom the child lives or spends time with, even though there is no parenting order that states this.
How do I apply for a recovery order?
Before you apply for a recovery order, you should read the fact sheet Recovery orders. You should also refer to the Australian Federal Police Family Law Kit.
There are different processes for applying for a recovery order, depending on whether or not you have a current parenting order or a parenting case pending in the Court.
If you have already started proceedings asking the Court to make parenting orders, and you want to apply for a recovery order, you need to file:
- an Application in a proceeding, and
- an Affidavit – Family law and child support setting out the facts in support of the application for a recovery order.
For more information about eFiling and a step-by-step guide see How do I eFile?
If there are no current proceedings and you want to apply for a recovery order, you need to include your application for a recovery order in an application for parenting orders.
For information about filing requirements and a step-by-step guide to applying for parenting orders see How do I apply for parenting orders?
What happens next?
First court date
The Court will list the application for a first court date.
How is a recovery order implemented?
The Court is not a child recovery agency. If the Court makes an order authorising or directing another person or persons to find, recover, and deliver, a child, you must give a copy of the order to that person or persons. In most instances, this will be the Australian Federal Police (AFP).
If the Court makes an order for the recovery of a child, the applicant will need to complete the Recovery Order Information Sheet found AFP Family Law Kit.
When the child is returned to you, you must notify the Court as soon as practicable.
What if the child still isn’t found?
In some situations, you may ask the Court to issue a location order, Commonwealth information order, and/or publication order.
What is a location order?
A location order is an order of the Court which requires a person to provide to the Court, information they have, or which they obtain, about a child (see section 67J(1) of the Family Law Act 1975).
What is a Commonwealth information order?
A Commonwealth information order is a type of location order which requires the Secretary of a Commonwealth (Federal) Government department, or an authority of a Commonwealth instrumentality, to provide to the Court information in its records about the location of a child (see sections 67J(1)(b) and 67J(2) of the Family Law Act 1975).
An application for a Commonwealth information order usually needs to be served on the person to whom the proposed order is to be directed (in other words, the person who will need to act on it, such as the Secretary of the relevant department) at least seven days before the Court hearing (see section 67N(3) of the Family Law Act 1975 and regulation 12CB of the Family Law Regulations 1984).
A Commonwealth information order stays in force for 12 months.
How do I apply for a location order (including a Commonwealth information order)?
There are different processes for applying for a location order, depending on whether or not you have a current parenting order or a parenting case pending in the Court.
If there are parenting orders in place, or you have already started proceedings asking the Court to make parenting orders, and you want to apply for a recovery order, you need to file:
- an Application in a proceeding, and
- an Affidavit – Family law and child support setting out the facts in support of the application for a location order.
If there are no parenting orders in place and you want to apply for a location order, you need to include your application for a recovery order in an application for parenting orders.
What is a publication order?
Very strict rules apply to publishing information about family law proceedings. Sections 114Q and 114R of the Family Law Act 1975 make it an offence to publish details of proceedings or images that may identify parties and/or witnesses involved in the proceedings, with only very limited exceptions. Penalties of up to one year imprisonment can apply.
A publication order is an order of the Court which partially lifts publishing restrictions in a particular family law case, to allow media outlets to publicise certain details of a case, to help to find a missing child. A publication order will set out the information which may be published.
A publication order is usually made only as a last resort, after other attempts to locate a child have been undertaken, such as a location order. To apply for a publication order, you need to file:
- an Application in a proceeding, and
- an Affidavit – Family law and child support setting out the facts in support of the application for a publication order.
My child has been taken overseas without my permission
If your child has been taken from their home country without your permission, and without the authorisation of a court, you may be able to get assistance under the Hague Convention on the Civil Aspects of International Child Abduction. See Relocation and travel for more information.
Legal advice
You are not required to be represented by a lawyer, or to seek legal advice, before entering into consent orders or applying to the Court, or if you have been served with an application. However, family law is complex, and getting legal advice will help you to better understand your rights and responsibilities.
