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Recovery Orders

The other parent has threatened to not hand the child over in order for the child to spend time with my spouse. There are court orders in place, but the other parent has been disregarding them since they were signed. The other parent has now moved, and the manner in which this was done was in direct conflict with how the orders were written, ie notice, new orders etc. The other parent did move a bit closer, but not close enough to do 50/50 as per the recommendation of the family report writer.

There is a 60I certificate available. My spouse had been trying to get the other parent into mediation for over a year, and the first joint mediation occurred the night before the other parent moved. So in essence, approximately 12 hours notice was given of the move. Then the other parent withheld the child for 5 weeks. The other parent has on two other occasions, withheld the child.

Given that there does not appear to be a "Application for Recovery Orders" form available (or I am looking in the wrong place), do we need to complete an Initiating application?

And in your opinions, should we, maybe, apply for a change of lives with for the child?

Thank you in advance.
I would have thought that you would need to lodge a contravention application, as recovery orders are usually used for to recover a child that the non primary carer has absconded with.

Somebody correct me if I am wrong.
From the Family Law Courts Website: Who can apply?
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
  • person who has parental responsibility for the child in a parenting order
  • grandparent of the child, or
  • 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.
So it can be either the lives with or the spends time with parent.

What I did find out though from the hotline: If we want to apply just for the recovery, then we fill out an Application in a case (because there are already orders) and an Affadavit, but if we want to change orders, then we fill out in Initiating Application and an Affadivit.

Then again, we could go down this route. If you don't actually want the other party punished (eg. fined or imprisoned) for the breach but rather want a speedy remedy to ensure the resumption of the arrangements set out in an earlier order, you may be able to file an Application in a Case rather than an Application - Contravention. You should seek legal advice before filing an Application - Contravention.

So still at a loss as to what to do.
Boots said
The other parent has threatened to not hand the child over in order for the child to spend time with my spouse.
So to be clear nothing has happened at this stage…
Boots said
There are court orders in place, but the other parent has been disregarding them since they were signed.
How long ago were the orders made? Are they fairly recent? Has there been time to settle these orders in? What action have you taken in regards to the fact you advise us that the "other parent has been disregarding them".
Boots said
The other parent has now moved, and the manner in which this was done was in direct conflict with how the orders were written, ie notice, new orders etc.
When did they move , is that allowed under the orders and how far away? Do you have Shared Parental Responsibility orders?
Boots said
The other parent did move a bit closer, but not close enough to do 50/50 as per the recommendation of the family report writer.
So let me get this straight. The other parent moved away some distance and then moved again and came back a little closer? We would not be interested in anything the family report writer has said as you subsequently obtained court orders so all that is of interest is the court orders and what is being complied with now. Nothing else is of interest in this matter , in relation to the compliance or otherwise of orders made…
Boots said
There is a 60I certificate available.
What has that got to do with "The other parent has threatened to not hand the child over in order for the child to spend time with my spouse." and "There are court orders in place, but the other parent has been disregarding them since they were signed."
Boots said
My spouse had been trying to get the other parent into mediation for over a year, and the first joint mediation occurred the night before the other parent moved. So in essence, approximately 12 hours notice was given of the move.
But don't you have court orders?
Boots said
Then the other parent withheld the child for 5 weeks. The other parent has on two other occasions, withheld the child.
Then the appropriate action would have been to file a contravention proceeding. If the orders are not being complied with file a contravention. The only thing to be aware of is consider "there could be reasonable excuse factors"… and there could be cost orders against you if your are not reasonabley successful in and persuading the Registrar, Magistrate (Judge).
Boots said
Given that there does not appear to be a "Application for Recovery Orders" form available (or I am looking in the wrong place), do we need to complete an Initiating application?
Based on the open remark a contravention application is required.
Boots said
And in your opinions, should we, maybe, apply for a change of lives with for the child?
On what basis are you suggesting such a proposal. If you are going down that road you should take further advice as the material here is flimsy at best.


Executive Secretary - Shared Parenting Council of Australia
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No, nothing has happened at this stage. The other parent did withhold contact when they moved closer. And has withheld contact previously, although there were no orders at the time.

The orders were made in October 2010. Spouse has previously advised the other parent that they are contravening the orders, and the orders are pretty explicit, so no real room for misconception. Other parent has ignored the emails (not acknowldeged them). The other parent has previously stated that if spouse does not return child, then they will apply for recovery orders. So other parent is aware of the system. And it would appear, that on each occassion before holiday time, the other parent has attempted to come up with an excuse as to why they will not send the child to spouse. Spouse has never withheld the child, only the other parent has.

The other parent moved "closer" six months ago, and spouse has been trying to negotiate new orders ever since. There was a clause in orders stating that annual mediation was to take place, and also that both parents were to discuss child living with spouse as per the recommendation of the family report writer. There was also a clause in the orders that stated that if either parent wished to move more than 100km from current location then new orders were to be agreed to and signed before the move.

Due to the above (clause about mediation), spouse has a 60I certificate. This apparently is needed even if lodging a contravention.

There are also educational and medical issues involved. The other parent is stating that in their opinion the child has ASD, and has been taking child to specialist after specialist. But no specialist is saying that at the moment. School has never indicated that they thought there was a problem.

Spouse has been playing the nice person game for far too long, and the other parent, has been playing the game to reduce contact for over 6 years now.
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