Recovery orders in WA

You don’t have to be a biological parent to apply for a recovery order. The Court will consider applications from anyone concerned with the child’s care and well-being.

You can apply if you are:

• A person the child lives with, spends time with or communicates with under a parenting order;
• Someone with parental responsibility for the child;
• A grandparent of the child;
• Any individual who plays a significant role in the child’s life, such as a relative or close family friend, even if there is no formal court order.

Yes, if your child has been taken interstate without your agreement, you can apply for a recovery order to have them returned to WA.

To prevent your child from leaving Australia, you can apply for a court order that stops them from being issued a passport or travelling overseas. Both parents must consent to a child’s passport application.

If one parent objects, a court can intervene and either block or approve the travel depending on the circumstances. Applications must be made to the Court for both situations.

Time is critical. If your child has been taken or not returned to you as agreed, you should apply for a recovery order as soon as possible—ideally within days.

No, you don’t need to already have parenting orders in place. However, if you don’t, you’ll need to request an order that the child live with you at the same time as applying for the recovery order.

Different forms are required depending on whether you already have parenting orders, so it’s important to get the paperwork right.

Applying for a recovery order in Western Australia generally involves the following steps:

1. Determine the right court – If there’s no current case in the Family Court of WA, you will usually apply through the Federal Circuit and Family Court. However, if you already have an active matter in the Family Court, your recovery order application should be filed there.

2. Check if parenting orders are in place – You can only apply for a recovery order if parenting orders already exist. If they don’t, you’ll need to apply for both a parenting order and a recovery order at the same time.

3. Prepare a detailed affidavit – This is a sworn statement that outlines important facts, such as your relationship to the child, their usual residence, how and when they were taken or not returned, past court involvement, and why it’s in their best interests to be returned.

4. Set out the orders you’re seeking – Your application should list the specific orders you’re asking the Court to make, including directions for the child’s return and any necessary interim arrangements.

As every family’s situation is unique, the process may differ slightly depending on the details of your case.

Our experienced family lawyers can help you understand the best approach for your circumstances, ensure your documents are properly prepared, and support you through every stage of the application.

The Family Court will only issue a recovery order if it believes doing so is in the best interests of the child. The Court looks at two key factors:

• Protecting the child from harm, abuse, neglect, or family violence;
• Supporting the child’s meaningful relationship with both parents.

The safety and welfare of the child always take priority over all other considerations.

Urgent recovery orders can be issued within 1–5 days. Non-urgent cases may take 2–6 weeks. If the Court believes the situation is urgent, it can hear the case ex parte, meaning only the applicant is present. You must explain why the case is urgent in writing.

Once granted, the recovery order takes effect immediately. It typically directs the Australian Federal Police (AFP) to locate and return the child, with support from state and territory police. You may need to travel to receive the child.

A recovery order remains valid for the period set by the Court or for up to 12 months, whichever is shorter.

The Court is not responsible for retrieving the child itself. If the Court issues a recovery order, you must provide it to the designated authority—usually the Australian Federal Police (AFP).

You’ll need to complete the Recovery Order Information Sheet from the AFP’s Family Law Kit. Once the child is located and returned, you must notify the Court promptly.

If you’re the subject of a recovery order, you have the right to respond in the Family Court or the Federal Circuit Court. Understanding how the Court makes its decisions can help you respond effectively.

Therefore, once a recovery order is made against you, seek legal advice immediately. A lawyer can help you challenge the order by demonstrating reasons such as:

• Risks of harm or family violence if the child returns;
• Existing agreements between you and the other parent;
• Immediate necessity for your relocation.

Importantly, you must not obstruct police enforcing the order—this is a criminal offence under Section 67X of the Family Law Act 1975.