What to do if your ex takes your kids or fails to return them

By July 20, 2021Blog

If your ex (or someone else known to you) has taken your kids, or hasn’t returned them as arranged, your best course of action is to apply to the courts for a recovery order.

While your first instinct may be to take matters into your own hands and forcibly take them back, this is unlikely to be in your (or their) best interests. Unfortunately, unless there is an immediate threat to their safety or a recovery order in place, you can’t expect the police to collect them either.

Applying for a recovery order

A recovery order is a court order that provides authority for someone such as the police to take all appropriate action to recover your children and return them to you.

If you have a parenting agreement or order in place, you can make an urgent application for a recovery order straight away. But, if you don’t have a parenting agreement or order in place you will need to apply for both a parenting order and recovery order.

Your application needs to include an affidavit (written statement) that presents the facts to the court. This should include:

  • An overview of the relationship you have with the children and the relationship your ex has with the children.
  • Details of where the children usually live and how you share (or don’t share) parenting responsibilities with your ex.
  • A list of any previous court hearings and orders.
  • Details of how the children were taken from you, or not returned as arranged.
  • Why it is in the children’s best interests to be returned to you.

The application also needs to detail what orders you are seeking. Given the complex legal nature, you should get an experienced family lawyer to help you prepare your urgent application and affidavit, as well as represent you in court.

What happens once you apply for a recovery order?

Your lawyer will make an urgent application for your matter to be heard. Depending on the level or urgency, it typically takes between one and six weeks for the matter to be heard.

In deciding whether or not to grant the recovery order, the court will consider a variety of different factors, prioritising the best interests of the child. Generally speaking, the courts:

  • do not look favourably on one parent making a unilateral decision about where the children are to live, taking the children or refusing to return them.
  • expect parents to consult one another and make a genuine effort to come to a joint decision about significant issue affecting the children (like where they live) where there is shared parental responsibility.
  • believe that it is in the best interests of the child to have a meaningful relationship with both parents, provided it is safe to do so.

Once the court hears the matter, they will decide whether or not to grant the recovery order. Once granted the recovery order takes immediate effect and remains in place for 12 months.

Case in point | Dalby & Glaister [2021] FCCA 1301 (25 May 2021)

This recent case, involving divorced parents who lived in different states, illustrates how the courts typically approach an application for a recovery order.

The children lived with their mother who took the children to Queensland to visit their father. She returned to Melbourne, while the kids stayed to spend time with their father, who had agreed to return them to Melbourne shortly after.

However, the father changed his mind and told the mother that he would not be returning the kids as agreed. The mother applied to the courts for an urgent recovery order.

The Department of Families, Fairness and Housing determined that the children were not at risk of harm in the home of either parent. The father alleged that the mother was being coercive and argued that his lesser involvement in the children’s life was the product of her personality and coercive and demanding nature.

The judge determined that the fathers claims could not be proved with the information available at the time and put in place an order for the children to be returned to their mother.

In this case, as there was no risk to the children the most significant factor was the fact that the children had always lived with their mother and that the father had made a unilateral decision to change this.

 

We’re here to help

The team at Lakey Family Law has significant experience in this area.  As with most family law matters, every situation is unique. If your children have been taken from you or not returned, we can help you understand how the law applies to your specific circumstances and assist with applying for a recovery order.