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24 December 2019

What can I do if my ex doesn’t return the children to me?

Unfortunately, this is a question we commonly get asked in the lead up to Christmas and shortly afterwards.

Unfortunately, this is a question we commonly get asked in the lead up to Christmas and shortly afterwards.

While it may be your first thought to call the police, they will only accept and act upon a recovery order issued in accordance with the Family Law Act. You may ask the police to conduct a welfare check if you know where your children are.

A recovery order can direct the Court Marshal, officers of the Australian Federal Police, or officers of state or territory police to locate and deliver your children to you.

If your former partner refuses to return the children to you despite a previous agreement between you or court order, you will generally need to file an application for a recovery order in the Federal Circuit and Family Court as soon as possible. If the court considers your application urgent, it may be listed before a senior judicial registrar or judge within a few business days.

You will need to serve your application on your former partner, unless the court allows your application to be determined in their absence. This would only occur in exceptional circumstances, for instance, your former partner threatening to harm the children.

When determining whether to make a recovery order, the court’s paramount consideration is the best interests of the children. The court may make an order that your former partner return the children to you at a specified date and time, failing which, a recovery order issue.

It is important that your application and supporting affidavit are well prepared so the court has the evidence needed to make a recovery order in your favour.

If a recovery order is made, you must provide a copy of the order to the Marshal or police, who will find, recover and deliver the children to you.

Where costs are incurred to recover your children, you will be responsible for meeting those costs. If the children are recovered in a different State or some distance from you, generally you will need to travel to collect them.

If you don’t know where your children are, you may also ask the court to make orders for:

  • a location order to require a person to give the court information about your children’s location
  • a Commonwealth information order to compel Commonwealth government departments, such as Centrelink, to provide information about your children’s location where that information is contained in records of the department
  • a publication order to allow the media to publish details and photographs of your missing children and your former partner.

If you find yourself in the highly stressful and unenviable situation of having your former partner refuse to return the children to your care, please contact our family law team to discuss applying for a recovery order.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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Justine Woods
Craig Turvey
Special Counsel

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