Child Custody – Recovery Order Case Study

Nicole had been in a relationship with Paul on and off for the last 5 years. The couple had a child together named Molly, who was 2 years old. Paul had fallen victim to drug abuse and mental health issues which affected his functioning, so in the best interests of Molly, Nicole ended their relationship. It was a difficult time for the couple, but they were able to agree upon Paul spending time with Molly on a supervised basis, with Nicole having primary care.

One Sunday afternoon, Nicole arrived at Paul’s with Molly for a barbeque. Paul’s had invited his sisters and mother, who all loved spending time with Molly. At around 8pm, Nicole began to fall ill, and went inside to lie down. Nicole fell asleep, and at around 10pm was awoken by Paul’s mother, offering to drive her home. Paul’s mother told Nicole that as she was ill, Molly could stay the night in her care, and she would return her tomorrow. Nicole agreed as she would have difficulty supervising Nicole in such a state, and had never had an issue with Paul’s mother.

The next day, Nicole called Paul’s mother to arrange the time she would be brining Molly back. She did not answer. Worried about Molly, Nicole called Paul to figure out what the plan for the day was. He did not answer either. Nicole arranged a lift to Paul’s house to pick up Molly, but to her surprise neither Paul, Paul’s mother nor Molly were there. Nicole returned home upset and frustrated, waiting to hear where her daughter was.

At around 10pm that night, Nicole received a text message from Paul reading “Molly is staying with mum and me, it’s not fair you see her more than I do”. Nicole tried to reason with Paul, but he would not tell Nicole where they were staying, or when she would get her back. Over the next 4 days, Nicole tried consistently to arrange to pick Molly up and take her into her care. However, Paul became less and less responsive to her messages and calls, and then blocked her number.

It was at this point that Nicole decided it was necessary to explore her legal options to have Molly returned to her, as she held concerns over the standard of care that would be provided to her, and the effect being separated from her primary carer would have on Molly.

Nicole called us at Sarah Bevan Family Lawyers and arranged an urgent appointment with one of our child custody lawyers. After going through the history, our child custody lawyer advised Nicole that she had grounds to seek a recovery order in the Federal Circuit Court.

For a recovery order to be made, the court would have to be satisfied that such orders were in the best interests of the child. To make this determination, the Family Law Act 1975 s 60CC provides that the court will primarily consider:

a)     The benefit to the child of having a meaningful relationship with both of the child’s parents;

b)     The need to protect the child from physical and psychological harm from being subjected to, or exposed to abuse, neglect or family violence.

Our child custody lawyer promptly prepared a recovery application and in the supporting affidavit set out evidence of Paul’s physical and psychological abuse towards Nicole, his increased use of the drug ice, and his history of serious mental health problems. Our lawyer also highlighted Paul’s unwillingness to allow Nicole to see or speak to Molly, which was depriving her of the benefit of having a meaningful relationship with both parents.

The application for a recovery order was made, and a court date was set for about a week later. Both Nicole and our child custody lawyer continued trying to contact Paul and his mother in the meantime.

On the day of Court, Paul attended as we had arranged for him to be notified of the Court date and documents through social media. Our child custody lawyer argued that Paul’s history of abuse, drug use and serious mental health issues meant that his parental capacity was seriously impaired, and so it would be in Molly’s best interests to be returned to Nicole. Paul informed the Judge that he had cared for Molly properly but he refused to give any information about his drug use. He also made repeated statements about how it was “unfair” to him that Nicole got to spend more time with Molly. The Judge reminded Paul that the Court’s focus is on the best interests of the child, not of the parents. And when Paul referred to his “parental rights” and that he should have “joint custody” the Judge pointed out that under the Family Law Act 1975 the parents do not have rights, only responsibilities, and that it is only the child who has rights.

The Judge made a recovery order was granted to Nicole, which forced Paul to return Molly to Nicole, and if he failed to do so this could be effected through the Federal Police. Thankfully for Molly, Paul (through his mother) arranged for the return of Molly in compliance with the order.

Nicole was extremely pleased with the outcome of the proceedings, and was reunited with Molly, who had missed her very much.

If you need help with a Child Custody Recovery Order please contact our expert Sydney family lawyers today. We have offices conveniently located through out Sydney, Surry Hills, Crows Nest & Parramatta. 

For further information or assistance please contact Sarah Bevan Family Lawyers.

All names and identifying features have been changed for privacy reasons in our case studies. These case studies only have basic detail in them, and you should always bear in mind that every case is unique. These case studies are examples only, and cannot be applied to your circumstances without consideration of all relevant facts.