My ex has taken the children – what can I do?


What can you do if your ex-partner has taken your children or kept them for a longer period of time than you agreed? The options available to you depend upon your individual circumstances.

If you have Court Orders
If you have Court Orders that the children live with you and your ex-partner has not returned the children at the ordered time, you should contact the other parent and see if you can reach an agreement about the return of the children.

If you cannot speak to your ex-partner because you don’t have their contact details, they are not answering your calls or because they have gone overseas, or they are simply refusing to return the children to you, you can apply to the Court for a Recovery Order.

A Recovery Order permits the Federal and/or State Police to return the children to you.

I don’t have Court Orders – what can I do?
 If you don’t have Orders because you have just separated, have not agreed upon Orders, have a Parenting Plan instead, or your Court matters are still pending, it is still always best that you try and speak to and reach an agreement with the other parent. If you cannot communicate with your ex-partner or they refuse to negotiate an agreement with you, you can also apply to the Court for a Recovery Order and at the same time you should apply for Parenting Orders for your family moving forward.

My ex-partner has moved away with our children – where are they?
If your partner has moved your children without your approval (even if you have Court Orders that provide for the children to live with your partner and spend time with you), you should attempt to contact your ex-partner, your children or family and friends to try and locate where the children are.

Sometimes it is not always possible to locate your children because your ex-partner isn’t cooperating, you cannot get into contact, no one knows where they are, or because you fear for your own safety and do not want to contact your ex-partner. In such circumstances, you can apply to the Court for a Location Order which will ask an organisation or your ex-partner to provide information to the Court about the location of your children.

If the children have previously been living with you or you have Orders that they live with you, you can also then seek a Recovery Order for the children to be returned to you.

Do I have to go to mediation before Court?
 Normally, before parents go to Court they will need a certificate from a family dispute resolution practitioner stating that they have engaged or at least one party tried to engage in mediation. However, if your children are removed from your care or you do not know where they are, it is more than likely you will not need to obtain a certificate because (depending on your circumstances) your matter will be likely considered to fall into one of the following categories:

  • Your matter is urgent; or
  • You can satisfy the Court that there are reasonable grounds to believe that there has been family violence, child abuse or a risk of either occurring if there was to be a delay; or
  • Your ex-partner has contravened and shown a serious disregard for your Court Orders (if they were made within the last 12 months).

Takeaway tips

  1. Always try and talk to your ex-partner before involving solicitors;
  2. If you cannot communicate with your ex-partner, contact other people like family, friends or your children (if they have their own phones or email address); and
  3. If you cannot reach an agreement, immediately contact a solicitor to assist you in applying for a Recovery Order and/or a Location Order; and
  4. If your children have been retained by your ex-partner it is unlikely that you will have to go to mediation before filing in Court.

If you are experiencing difficulties in your separation you might like to give our experienced family law team at Southern Waters Legal a call on 9523 5535.

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