Recovery orders

A parent may act inconsistently with family court orders and unilaterally remove their children from, or fail to deliver, or refuse to return their children to the care of the other parent. Where there has been a history of family violence this may be done in an attempt to ensure their own safety and their children’s safety and to escape the coercive and controlling behaviours of the abusive parent.

Alternatively, removing the children may be a form of family violence and be done in an attempt to exert, or extend, control over or “punish” the other parent.

Division 8, subdivision C of the Family Law Act (FLA) gives the Federal Circuit and Family Court of Australia and Division 8, subdivision 3 of the Family Court Act (FCA) gives the Family Court of Western Australia (collectively herein referred to as the “family law courts”) the power to make orders for the location and recovery of children within Australia. If children are believed to have been taken outside Australia parties may need to consider whether it is possible to bring an application pursuant to the Hague Convention on the Civil Aspects of International Child Abduction.

Where allegations of domestic or family violence or child abuse are made, family law courts considering applications for recovery orders must ensure the best interests of the child are always the paramount consideration (section 60CA FLA, section 66A FCA). A primary consideration in determining a child’s best interests is the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence (which is given greater weight than the benefit to the child of a meaningful relationship with both parents) (section 60CC FLA; section 66C FCA). The Family Courts are also required to consider the risk of family violence (section 60CG FLA, section 66G FCA).

Where a child has been taken or moved within Australia from a person with parental responsibility, a recovery order may be sought, usually on an urgent basis: Atkinson v Atkinson [2017] FamCAFC 266 (13 December 2017). Recovery orders may also authorise stop and search, entry powers and the use of force to recover the child (section 67Q FLA; section 149 FCA). Pursuant to section 67U FLA; section 153 FCA the family law courts may make such recovery order as the court deems proper.

Family violence is commonly reported by parties to recovery proceedings and is often a critical factor underpinning judicial decisions. The contested and private nature of such allegations often complicates interim recovery hearings where evidence remains untested. For example, Wilson J upheld the mother’s appeal against the father’s recovery order in Pollard and Nordberg [2019] FamCA 365 (7 June 2019) on the basis of family violence allegations against him, despite no expert report being admitted.

If I dismiss the mother’s appeal, the recovery order will operate in such a way that the children are physically, and if necessary, forcibly, returned by police to the father in Victoria. If the allegations of family violence are proved at trial, that means I will order the children to be returned to a violent environment. It must not be overlooked that the mother has alleged that the father has been violent to the children, independently of the allegations of his violent behaviour towards the mother. I refuse to make an interim order returning the children to the father in circumstances where the father may at trial be found to have engaged in family violence. In my judgment this court must act protectively towards the children and remove them from any risk associated with family violence. To do so is consistent with the imperative recorded in s 60CC(2A). [155]

Australian research suggests a connection between family violence and involvement in recovery applications. A 2022 study found that family violence and safety concerns were common drivers behind non-compliance with parenting orders, including unilaterally removing children. A 2015 study of separated parents found that 20 per cent of mothers held safety concerns as a result of ongoing contact, with 63 per cent of those reporting previous attempts to limit the child’s contact with the other parent as a result of such concerns. However, in other cases, parents who previously experienced family violence may seek to escape their ex-partner, even where the perpetrator’s contact with the children (and child contact handovers) can be made safe.

Research also indicates that threats of enforcement litigation or non-compliance with parenting orders, such as threats of abduction, can form part of a pattern of control.