My Ex has withheld our children from my care… what can I do?

Home News My Ex has withheld our children from my care… what can I do?

15 December 2021, By Niki Schomberg of Hartley Family Law    

Unfortunately, this is a question we are commonly asked over the Christmas period when tensions in separated families can often run high.

While it may be your first thought to call the police, they generally won’t intervene unless the Court has issued a Recovery Order pursuant to the Family Law Act. The Police may, however, on your request, conduct a welfare check if you know where your children are.

A Recovery Order can direct officers of the Australian Federal Police and State and Territory Police forces to find and recover your children and deliver them to you.

You can apply for a Recovery Order if your children normally live with you and the other parent is refusing to return them or if you have Parenting Orders and the other parent is preventing the children from seeing you pursuant to those orders.

You can also apply to the Court to request that the application be dealt with ex parte (that is, without notice to the other party), however, the Court will only allow this in limited circumstances (for example, the withholding parent is threatening to harm the children, or it is deemed that the children’s safety is at risk).

The Court considers recovery applications urgent and will usually list them within one to three business days (depending on the circumstances of the case).

If you need to file a Recovery Application, it is important to obtain legal advice to ensure you have the appropriate evidence before the Court, such that the Court is in a position to make the order urgently.  

Once a recovery order is made, you must provide the order to the Marshal or police. You must also pay any cost of recovering the children, for example, if this involves them travelling by plane interstate.

If you need any assistance with a recovery application, please do not hesitate to contact one of our experienced family lawyers.