What do I do if my ex-partner won’t return our child to me?

If your children have been retained, you should contact us straight away.

It is not uncommon for parenting arrangements to go through ups and downs. For instance, one (1) parent might choose to retain the child/ren when they’re not supposed to. This can be an extremely stressful time.

If your children have been retained, you should contact us straight away. In many cases it can be as simple as negotiating directly with your ex-partner or their lawyer. If for whatever reason we are unable to negotiate for the return of the children, it may become necessary to make an application for the children to be returned to your care. This is called a Recovery Application and requires you to file an affidavit which sets out the evidence you rely on in support of your application.

We can also make an application for your case to be heard urgently. Ordinarily the Family Law Act requires that parties attempt mediation prior to initiating Court proceedings, however if your matter is urgent, the Court is able to waive this requirement.

To help us file your recovery application as quickly as possible, we recommend that you spend some time prior to your Smart Start appointment preparing a summary of your parenting matter.

In particular you should focus on:

  • The parenting arrangements for your children to date,
  • Details of any previous Court proceedings,
  • The circumstances under which your children were retained,
  • Information about where you think the children are, and
  • If you are concerned that your children are at risk of harm, the details of the asserted risk.

If you’re not sure where your children are, we can seek that the Court make Orders to assist in locating your children.

What if I was the one who kept the kids?

Sometimes parents choose to retain their children for good reason. There is no presumption under the Family Law Act that children should continue to live with the parent they have historically lived with.

If you cannot reach an agreement about where your children should live, the Court will need to make a decision which is in their best interests.

If you have decided to keep the children, you should file an application straight away seeking that the children live with you. However, if you have been served with an application seeking that the children be returned to your ex-partner you will need to respond to the application and attend the Court hearing.

Our Family Lawyers are able to assist with drafting your documents and representing you at Court.

Specialist Family Lawyers for Sydney and Newcastle

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The information in this article is not legal advice and is intended to provide commentary and general information only. It should not be relied upon or used as a definitive or complete statement of the relevant law. You should obtain formal legal advice specific to your particular circumstance. Liability limited by a scheme approved under Professional Standards Legislation.

Principal Solicitor
Accredited Specialist (Family Law)