Applying for recovery orders

A Recovery Order is an order made by the Court for the return of a child to the person who applied for the order.

Who can apply for a recovery order?

You can apply for a recovery order if you are:

• 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.

If you're not sure if you qualify, please seek legal advice.

How do I apply?

The way to apply for recovery orders depends on whether you already have parenting orders in place.

If you already have parenting orders, you need to file:

• an Application in a Case (Form 2)
• supporting documents:
  • an Affidavit
  • a Letter to the Duty Registrar if you are requesting an urgent hearing

After completing the forms, you will need to file the documents and then serve the documents (see information below on situations where serving the documents is not appropriate). You do not need to attend family dispute resolution before seeking a recovery order.

If you don't have parenting orders in place, you need to request recovery orders as part of an application for Parenting Orders. You should get legal advice if requesting a recovery order when there are no parenting orders in place.

Application in a Case (Form 2)

You will need to fill in these parts:

• Box at the top corner – print your Family Court file number. Court staff will help if you do not know the number.
• Part A – tick the type of orders you are seeking.
• Part B - print your name under the heading ‘Applicant 1’ and the name of the other party under the heading ‘Respondent 1’. Fill in the address and telephone number of both parties.
• Part D - write down the orders you want the Court to make.

The orders to request

If you think the other party will obey an order that the children be returned to you, you should print the following words in Part D of the Form 2:

• “The respondent forthwith deliver up the children (include full names and dates of birth of each child) to the applicant”.

If you think the other party will obey the order only if the Police are involved, you should print the following words in Part D of the Form 2:

• “A Recovery Order issue in the usual terms for the delivery up of the children (include full names and dates of birth of each child) to the applicant”.

If you ask for a Recovery Order you must understand that the Police will collect the children and give them to you. This may be very upsetting for the children - think carefully before asking the Court to make such an order.

Affidavit supporting the application

This is the form that tells the Court the facts.

• The affidavit must contain all the facts. The Judicial Officer will not have time to hear more evidence in Court.
• The affidavit must be split into small paragraphs (no more than six lines). Each paragraph must be numbered.
• The affidavit must be typed, not hand written.
• Each paragraph must deal with only one part of the evidence.

See affidavit supporting a recovery order application for details of what you should include in your affidavit.

Urgent applications

If you want the case listed earlier than 28 days from the date of filing, you should write a short letter to the Duty Registrar to help them decide when the case should be listed. You will need to refer to the following matters:

• The reason why you want an early hearing.
• The day on which you would prefer the case to be heard.
• The estimated hearing time (10 minutes is usually sufficient).
• Whether you intend serving the documents on the other party before the hearing.

Please note - this letter will not be used as evidence in your hearing.

Sometimes things are so urgent you might not have time to seek legal advice before acting. In some circumstances you may want to go straight to the Family Court to seek a recovery order.

Legal Aid WA provides a duty lawyer service at the Family Court in Perth that may be able to assist you with an urgent application if you do not have time to seek legal advice elsewhere first. For more information, see Family Court Services (duty lawyer).

Important: If you or your child’s safety is at risk, contact the police on 000. The police can also carry out a welfare check. They usually will not remove a child from a parent’s care without a recovery order unless there is immediate danger to the child.

Filing the application

Your supporting affidavit must be signed before an authorised witness.  Information on who is an authorised witness can be found on the affidavit page.  After signing your affidavit before an authorised witness, make two photocopies of the Form 2 and the affidavit. There is a photocopy machine on the ground floor of the Family Court opposite the registry counter.

Then bring the papers you have prepared into the Family Court registry. We will attend to you as soon as possible. Registry staff have no legal training and cannot provide any legal advice.

Registry staff will take your documents to the Duty Registrar for approval of an early Court hearing, if you have requested one. The Registrar will often be busy, so there may be some delay. When a date has been allocated you will be given back two copies of the Court documents. These will show the date and time of the hearing. One copy is for you and one is for the other party.

Application fees

If you already have parenting orders in place, there are no fees to be paid to the Court.

The standard fee applies if you need to apply for parenting orders.

Serving the documents

You have to serve the application on the other party, but the nature of recovery orders means this isn’t always possible.

Normally the Court will not hear a case unless the other party has been given notice of the hearing and has received a copy of the Court papers.

In very urgent matters the Duty Registrar will allow the case to be listed without the other side being notified. This is called an ex parte hearing. The Judicial Officer who hears the case may still decide to delay the hearing until the other side has been advised.

If you do not know where the other party is living, you may apply for a Location Order. A location order requires a government body to provide any information they have on the location of the other party. You should get legal advice about this before proceeding.

Next steps

Sometimes the case will be listed in Court on the same day that you file your application. Registry staff will tell you where to go. Take a seat in the Court and let the Court Officer know you are present. There may be some delay as the Judicial Officer will be dealing with many other cases.

You can read about the next stage in the process in the using the court section.

Last updated: 4-Jan-2023

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