COVID-19 implications on Child Custody
In the highly unusual circumstances now faced by Australian parents and carers as a result of COVID-19, there may be situations that arise where strict compliance with current court orders is very difficult, if not, impossible.
It is imperative that parents and carers act in the best interests of their children. This includes ensuring their children’s safety and wellbeing. Caring for and determining the practical day-to-day best interests of a child is primarily the responsibility of parents and carers.
In some instances, parents may have concerns about their children returning to another parents house and believe the children are at risk of exposure to COVID-19.
When an arrangement between the parties during this time cannot be reached and you believe that access to the children is being unreasonably withheld you can apply to the court for a recovery order to have the children returned you.
What is a recovery order?
A recovery order 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.
Who can apply for a recovery order?
You can apply for a recovery order if you are:
- a person who the child lives with, spends time with or communicates with as stated in a parenting order
- a person who has parental responsibility for the child in a parenting order
- grandparent of the child, or
- a person concerned with the care, welfare and development of the child. For example, you may be the person who the child lives or spends time with but there is no parenting order that states this.
How do I apply for a recovery order?
An application for a recovery order should be filed in the Federal Circuit Court. If you have a current parenting case in the Family Court, the application should be filed in that court. If you do not have a current parenting order, you should apply for one at the same time as applying for a recovery order. You must also file an affidavit to support your application.
What happens next?
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 the 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, you will need to complete the Recovery Order Family Law Information Sheet.
The AFP has offices in each capital city and some regional locations. Contact details are available on www.afp.gov.au.
- When the child is returned to you, you must notify the registry staff at the Court as soon as practicable.
What if you don’t know where the child is?
In some situations, you may ask the Court to issue other orders to help locate the child; for example:
- Location order – if you breach a parenting order and you cannot be found, a court may make a location order.
- Commonwealth Information order – requires a Commonwealth Government Department, such as Centrelink, to give the Court information about the child’s location that is contained in or comes into the records of the department.
- Publication order – allows the media to publish details and photographs of the missing child and the person they are believed to be with. However, each case is different and the terms of the publication order can vary. This is usually a last resort and you should seek legal advice first.
