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My ex-partner has taken our children without my permission. What can I do?

A resource kit for parents

This kit has been prepared by Legal Aid NSW. Legal Aid NSW is an independent government funded agency which provides legal representation to people who cannot afford a lawyer and who qualify for legal aid.

Legal Aid NSW also provides free advice to the public, a duty solicitor at court and a lawyer assisted family dispute resolution service. Details of Legal Aid NSW services are provided at the end of this kit.

This kit provides some basic advice and assistance to you in a situation where your children have been taken without your consent or you don’t know where they are.

In most cases, if your children have been taken without your consent or you are trying to find out where they are, you will need urgent legal advice before starting legal proceedings.

You can get legal advice at your nearest Legal Aid office or telephone advice from LawAccess NSW. See the contact numbers at the end of this kit.

This kit is intended as a guide to the law and is not a substitute for legal advice. While every effort has been made to ensure the information in this kit is as up- to- date and accurate as possible, the law is complex and constantly changing and you are advised to seek expert advice when faced with specific problems. If you are likely to be involved in court proceedings or legal action you should obtain advice from a lawyer.

Legal Aid NSW disclaims all liability for errors or omissions of any kind whatsoever, or for any loss or damage, in whole or in part, arising from any person relying on any information in this kit.

Court Orders

My ex-partner takes the kids without my permission – what should I do?

If you have a Court Order that the children live with you and the children have not been returned, the first thing you need to do is try to talk to the other parent and see if you can reach any agreement about the return of the children. If you can’t speak to the other parent or they refuse to discuss returning the children you can apply to the Court for a Recovery Order.

A Recovery Order is an order from the Court which allows Federal and State Police to return the children to you.

What if I don’t have any Court Orders about the children?

If you do not have a Court Order that the children live with you, you should still try to speak to the other parent and see if you can reach an agreement. If you cannot reach an agreement then you can apply to the Court for a Recovery Order and at the same time you should apply for Parenting Orders.

Parenting Orders are orders made by a court which would usually address who is responsible for making decisions about the children, where the children will live and when they will spend time with both parents. Parenting Orders can be made by a Judge, Federal Circuit Court or Local Court Magistrate. It is also possible that you and the other parent can agree on what orders will be in place.

My ex-partner has moved and taken the kids and I don’t know where to find them – what should I do then?

If your children are moved without your agreement and you don’t know where they are, you should ask friends and relatives to try to safely locate the other parent. However, sometimes this is not possible for example, in situations where you fear for your own safety, where there is a risk to a child or where friends and relatives either don’t know where the children are or they refuse to give you any information about where your children are. If you cannot make enquiries, or your enquiries lead nowhere, you can apply to the Court for a Location Order.

In a Location Order you can ask an organisation or a person to provide directly to the Court, information about the location of a child.

I am worried that my kids will be taken overseas.

In some cases you will be concerned that the other parent may be taking the children overseas.

If you are worried that the children might be taken out of Australia you should put the children’s names on the Airport Watch List. A Family Law Kit can be obtained from the Federal Police’s Website under the heading national activities and then the Family Law Tab.

You will need to apply to the Court to place the children on the Watch List and send a copy of the application and any Court Orders made to the Federal Police. Placing a child’s name on the Airport Watch List can be done immediately after you have filed an application at court. It is then your responsibility to make sure that you immediately provide the Australian Federal Police with copies of any orders made.

If you are concerned that the children are at risk of being removed from Australia you should seek urgent legal advice by either telephoning LawAccess NSW on 1300 888 529 or contacting Legal Aid NSW or a Community Legal Centre that provides this sort of advice.

Family dispute resolution

Do I need to attend family dispute resolution before I go to court?

It is important that you try to reach a solution with the other parent before you commence court proceedings. If you cannot reach an agreement, you will need to attend family dispute resolution, with a registered practitioner (or mediator).

Family dispute resolution is mediation which is specific to family law matters. The Court will not be able to hear an Application for Parenting Orders unless a certificate from a mediator is filed.

My matter is urgent – do I still have to go to family dispute resolution?

There are exceptions to needing to obtain a certificate. If an exception applies you do not need to attend family dispute resolution before starting court proceedings.

You are not required to attend mediation:

  • where you are applying for consent orders;
  • where you are responding to an application;
  • where the matter is urgent;
  • if the Court is satisfied that there are reasonable grounds to believe that-
    • there has been family violence or child abuse by a party,
    • there is a risk of violence by a party, or
    • there is a risk of child abuse if there were to be a delay;
  • where a party is unable to participate effectively (for example, they are too far from a family dispute resolution provider or because of an incapacity of some kind); or
  • where a person has contravened and shown a serious disregard for a Court Order made in the last 12 months.

When you apply to the Court, you will need to either attach the certificate from the mediator, or provide information to show that one of the exceptions applies
to you.

My ex-partner took the kids from school, I am worried they will hurt them – do I still need to get a certificate?

In cases where one parent has taken the children away from the other parent, it is unlikely you will need to obtain a certificate before asking the Court to make orders for the children to be returned to your care.

You will need to prove that the Court should make a decision about the children urgently. You would need to include in your affidavit the reason why the Court should consider making orders urgently.

Applying for Orders

I want to ask the Court to make a Recovery Order or a Location Order – how do I do that?

You need to file an Initiating Application. In this application you need to ask the Court for the orders that you want. These orders can include specific orders giving permission to police to remove the children from the other parent and return them to you. You will also need to file copies of the birth certificates for your children.

Interim Orders are short term orders which are made until you get a final order.

You can obtain copies of forms from the Family Law Courts’ Website or by ringing the Court on 1300 352 000.

When you attend court to file your documents, the documents will be stamped with a date and time telling you when you have to attend.

Can I apply for an order without telling my ex-partner?

In most circumstances you will need to give a copy of your application and any other document filed in court to the other parent. This is called serving the documents.

See the following section for more information about serving documents and ex parte applications.

I believe that my kids are at risk with the other parent – what can I do?

If you believe that your children are at risk of abuse in the care of the other parent you should get urgent legal advice. It is important that in these cases you bring your concerns to the Court quickly. It is also important that you file an affidavit which contains details of your concerns and that you file a Notice of Child Abuse and Family Violence.

See also the section below about affidavits.

What orders can I apply for?

There are a number of different types of orders you could ask the Court to give you. The type of orders you ask for will depend on your individual case. Some of the types of orders you could consider asking for are set out in the sections about Court Orders, and Sample Court Orders.

What is an affidavit and what do I put in it?

You will need to file an affidavit with your Initiating Application. An affidavit is a written statement by a party or witness. An affidavit must be sworn on oath or affirmed to be true before a person with the appropriate authority – for example a lawyer or Justice of the Peace. Your affidavit needs to cover all the evidence.

In most interim applications a Judge will not hear verbal evidence from you or the other parent. The Judge is likely to read the documents you file, look at any subpoenaed material you submit to them and make a decision.

As a result it is very important that your affidavit material gives enough details about your relationship with the child or children, and about any issue of violence or abuse to allow the Court to make a proper decision. It also needs to give details about the children’s removal and any other information that will help the Court to decide whether or not to make the orders you are asking for.

It is usually best to set out your evidence in date order.

See the section called Your affidavit – for suggestions about what could go in your affidavit and for an example of an affidavit. Also check the fact sheet on preparing an affidavit provided on the Family Law Courts' website under Publications.

Serving Orders

How does the other party get told about my application?

Once your documents have been filed you will need to make sure that the other parent is given a copy of the documents you have filed. This is called serving the documents.

You will need to arrange for this to happen. There is a formal process to follow. The Courts do not do this for you.

You can ask a Sheriff of the Local Court to give the documents to the other parent. The Sheriff will need:

  • The address of the other parent;
  • Details of where they work;
  • Details of any family member or friend that they may live with.

A photo of the person to be served sometimes helps the Sheriff. You will have to pay for serving the documents through the Sheriff.

Alternatively you can ask a family member over the age of 18 to serve the documents. If they do so they will need to file an Affidavit of Service. This document will include details of the time, place and date that the documents were served. The Affidavit of Service will need to be sworn before a Justice of the Peace or lawyer. You can obtain these documents and more information about service of documents from the Family Law Courts’ website.

What if I am having trouble serving my application?

If you are having trouble serving the documents, or the matter is very urgent, sometimes the Court can make orders without the other party being served. This is called an Ex parte Application. There are strict rules about this and the Court does not often make orders without the other party being served.

If you want the case to go ahead without following the rules about service, you will need to tell the Court about:

  • any proposals you have about how the document could be brought to the attention of the other party, if it is not formally served. For example you might suggest serving the documents on someone else who may know where your children are;
  • what steps you have taken to serve the document, or bring it to the notice of the person being served. The Court will decide whether you have taken all the steps that could be expected in the circumstances;
  • whether the person to be served could become aware of your application by an advertisement, or another form of communication.

The Court will also consider:

  • the likely cost of service; and
  • the nature of the case, for example its urgency.

Ex parte Orders are Court Orders made in the absence of the other party and can include:

  • orders substituting service on another person who may know where the other parent or children are, such as a grandparent or sibling, or a government agency such as the Child Support Agency;
  • orders for the immediate return of children, in cases where there is abuse;
  • an order for the disclosure of information of the whereabouts of the other parent and children;
  • an order requesting that the Australian Federal Police assist in finding the children and returning the children to you.

Going to court

What happens when I go to court?

You must go to court at the time and date written on your documents. If possible you should get legal advice before attending. Alternatively you may be able to get some help from the duty lawyer who is at court on the day.

When you go to court you should:

  • Be prepared to answer any questions asked by the Judge – The Judge will ask questions to establish what has happened in your case;
  • Have a summary of your case prepared to help you answer any questions – Judges find a chronology or timetable of events useful;
  • Be calm and polite;
  • Have a pen and paper with you so that you can write down any orders that the Court makes;
  • Have your documents with you – preferably in a folder in order. This will help you when the Judge is asking you questions.

If you have concerns for your safety, let security know as you enter the building.

If the other party is present at court they may have documents for you. You will need to read them carefully and if you have a chance, prepare short notes on your answers to what they say.

On the first court date, the Court may make the orders that you are seeking, especially any urgent orders, such as Recovery Orders, Location Orders or Airport Watch List Orders. The Court might not make a final decision about any general parenting matters on the first day, and instead may make Interim Orders.

The Court could also make one of the following orders:

  • An order for the children to be returned to you – this may also include an order for the children to “live with” you and may include orders for the children to “spend time” with the other parent;
  • An order for an adjournment – if an adjournment is given the Court will ask you to provide more information about the situation and will give you clear directions on what they will require from you on the next occasion;
  • An order for the appointment of an Independent Children’s Lawyer – If this order is made you will need to send a copy of all your documents to Legal Aid NSW who will appoint a lawyer to represent your children’s best interests. Sometimes this means that your case will be adjourned and another date will be given for the Court to make a decision in your case;
  • An order for you to attend compulsory family dispute resolution – if you have requested that you be exempt from having to attend family dispute resolution, the Court may still decide that this is the appropriate course for you to take;
  • An order for the children to spend equal time with both parents;
  • An order for the children to remain with the other party and an order for the children to spend time with you;
  • An order for the children to live with you and an order for the children to spend time with the other party.

If the matter is to continue onto another day, the Court may give you hearing dates, give directions about the process to be followed, and directions about what has to be done before the next court date.

If you do not understand what the Court has asked you to do, it is very important that you seek legal advice.

What If I need an interpreter?

If you need an interpreter to be at court with you, you need to make sure that you ask the Court in advance to organise one for your first court date. There will be no cost for this service.

After court

If you have been successful in obtaining a Recovery Order you will need to liaise with the Australian Federal Police and you will need to speak to the Family Law Team. It is useful to have a photo ready and be ready to provide as much detail as you can about the possible whereabouts of the other party and the children.

If the children are found interstate it is not the responsibility of the Australian Federal Police to return the children to you. You will need to make your own travel arrangements to collect the children and return with them. Sometimes the Salvation Army or other charities might be able to help.

Help from Legal Aid NSW

How can Legal Aid NSW help me?

Legal Aid NSW is a government-funded agency which provides legal representation to those who cannot afford a private lawyer. There is usually a small contribution required with all grants of legal aid.

Legal Aid NSW can provide a lawyer who works at Legal Aid. Alternatively, legal aid can be granted to cover the costs of a private lawyer. Legal Aid NSW has panels of private lawyers throughout NSW who do legal aid work.

To be eligible for legal aid, you must meet a means test (income and assets) and a merit test.

You will also need to satisfy Legal Aid NSW that you have exhausted all other ways of solving the dispute.

Legal Aid NSW provides a duty solicitor at Parramatta, Sydney and Newcastle Courts/Registries. Call your nearest Legal Aid office to find out if there is a duty solicitor service provided. You may be able to see a duty solicitor who can provide you with assistance on how to proceed with an application.

Alternatively legal advice is available at Legal Aid NSW offices across the State.

If you need urgent telephone advice LawAccess NSW provides information, referral or advice on 1300 888 529.

Sample Court Orders

Below is a list of some of the types of Court Orders you can ask for and some suggested wording.

You are called the applicant and the other party is called the respondent.

1. Ex parte Order

This is an order asking for the court hearing to go ahead without the other party being given any notice of your application.

That the applicant be granted leave to proceed ex parte for the purpose of a Location and Recovery Order.

2. Short Notice

This is an order for your proceedings to be put into the court list, to start on the earliest possible date.

That the application be listed on short notice.

3. Interim “live with” Order

An Interim Order is an “in between order” that you get while waiting for a final order.

That pending further Order the child [names] shall live with the [mother or father].

4. General Recovery Order

That the respondent shall forthwith return the child to the applicant.

5. Australian Federal Police Recovery Order
  1. That a Recovery Order issue for the child or children, [add names] pursuant to section 67Q of the Family Law Act 1975.
    • stop and search any vehicle, vessel or aircraft and search the premises or place for the purpose of finding the child;
    • recover the child;
    • deliver the child to the applicant;
    • arrest, without warrant, the respondent in the event that the respondent again removes or takes possession of the child.
  2. That the Marshall, the Deputy Marshall, all officers of the Australian Federal Police and all officers of the State and Territory Police be authorised and directed with such assistance as they require and if necessary by force to:
6. Injunction from removing the child

An injunction is a type of Court Order which directs the other parent to either do something or not do something.

That the respondent be prohibited from removing or taking possession of the child or children [names].

7. Location Order

You ask for this type of order if you do not know the whereabouts of your ex partner and children.

That pursuant to s67N(2) of the Family Law Act that the Chief Executive Officer of Centrelink furnish forthwith to the Family Court of Australia at [state where court is situated] information about the location of the child [names] or the mother/father [names] that is contained or comes into the records of Centrelink.

That pursuant to section 67P(1)(d) of the Family Law Act leave be granted to disclose the information provided to the Registrar of the Family Court of Australia at [state where the court is situated] and that the Court arrange for a process server to effect service of the documents on the respondent and that the applicant pay the costs associated with such service.

8. Restraint from Removal from Australia and Airport Watch List Order.

The Australian Federal Police prefer the following wording for these orders. (See the Family Law Kit at the AFP Website under the heading national activities and then the Family Law Tab).

1. Each of {parties' name and date of birth} and their servants and agents be and is/are restrained from removing or attempting to remove or causing or permitting the removal of [children's names and date s of birth] from the Commonwealth of Australia.

2. [children's names and date s of birth] be and are hereby restrained from leaving the Commonwealth of Australia.

3. It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said child or children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child or children’s names on the Watch List:

1. [children's names and date s of birth]
2. [children's names and date s of birth]
3. [children's names and date s of birth]

4. Upon expiration of the period referred to in Order 3 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child or children’s names from the Watch List.

9. Dispense with section 60I certificate

The section 60I certificate is the certificate that a family dispute resolution practitioner issues for the Court.

That the requirement for a section 60I certificate be dispensed with.

10. Publication Order

Publication Orders allow the media to report details and publish photographs that may help locate a missing child. Publication Orders usually cease when a child is recovered. You can apply for a Publication Order if you are applying for, or have applied for, a Recovery Order. The Court will usually have an agreed wording of the information which can be released about the child and will usually include a physical description, a description of the person the child was last seen with and details of where they were last seen.

“That pursuant to section 121 of the Family Law Act the applicant is permitted to publish and broadcast the names of the children [names] and [dates of birth]”.

Your affidavit

You will need to include in your affidavit details about the following:

Personal history
  • Personal history, including dates of birth of the children, date of marriage or date of commencement of relationship and date of separation.
Court Orders including Parenting and Family Violence Orders
  • Details of any other orders, including orders from a Local, Federal Circuit Court or Family Court and any Apprehended Violence Orders and Children’s Court orders.
Care of the children before separation
  • Arrangements for the children before separation, including information on who looked after the children, who bathed and fed the children, who supervised the children, who took the children for their medical appointments, who helped them with their school work and who took the children to their activities such as sport, music, dancing.
Family violence during the relationship
  • Details of family violence – list any incidents in date order; make sure that you provide details including the dates and what happened and whether you saw a doctor, police officer or DoCS worker as a result of the violence.
Arrangements for the children since separation
  • Time spent between the children and the other parent following separation.
  • How those arrangements were made.
  • Whether there have been any previous difficulties with those arrangements.
  • Current arrangements for the children; include where you live, where the children sleep, schools that the children attend and practical issues.
  • Arrangements for Child Support or other financial support for the children.
Events surrounding the child or children being taken by the other parent
  • Events that took place when the children were taken away by the other parent.
Risks to the children
  • Risks to the children of being with the other parent. Include any details of risk of child abuse, violence, drug use or excessive drinking.
Proposal for “spending time”
  • How you want the other parent to see and spend time with the children once the children are returned to you. It is important to include times and days that you want the Court to consider. If your children are young and have sleeping and feeding routines please consider this. If your children have activities that you want them to continue you will need to consider how this will affect the orders you want.
In a Location Application
  • You will need to include details of the last time you saw the children and what enquiries you have made to find the children and the other parent.
Exemption from attending a family dispute resolution conference before starting legal proceedings
  • If you have not attended a family dispute resolution conference, you will have to explain in your affidavit the reasons why your case comes within one of the exemptions. It will then be up to the Court to decide whether the exemption should be granted.
I am not sure how to write an affidavit, what should I say in it?

An example of the type of affidavit you file is set out below. This sample affidavit contains information to support a “Watchlist” Application.

I, [name] of [address]in the State of New South Wales, [occupation] say on oath/affirm as follows:

  1. I am the applicant.
  2. I am the [mother/father] of [child’s name], born [date of birth], now aged [age] and [SPECIFY ANY OTHER CHILDREN].
  3. I make this affidavit in support of my application to place the children on the Airport Watch List.

    Personal history

  4. I was born on [date], I am currently [x] years of age.
  5. The respondent was born on [x]and is currently [x] years of age.
  6. The respondent and I met in [LOCATION: Specify if outside Australia] in or about [date].
  7. We commenced a relationship in or about [date].
  8. The respondent and I married on [X/X/XX].
  9. The respondent and I separated on a final basis on [X/X/XX].
  10. There are [X] children of the relationship namely [X] born [X/X/XX] and [X]born [X/X/XX].

    Arrangement for the children

  11. Since the date of separation the children have lived with [who/where]
  12. The children have spent time with [me/the respondent] regularly [SET OUT DETAILS].
  13. There are no Parenting Orders in place. [or specify details of orders made].
  14. The respondent and I have not entered into a parenting plan. [or specify details of parenting plan].

    Passports

  15. The children are [SPECIFY – including any joint citizenship] citizens.
  16. The children have been issued with [SPECIFY ISSUING COUNTRY] passports which remain current and valid. Those passports are currently in the possession of the respondent.

    Risk of Removal

  17. I am concerned that the respondent may seek to remove the children from Australia.
  18. In particular, I believe there is a risk that the respondent may seek to take the children to [COUNTRY]. [SET OUT BASIS FOR BELIEF – eg whereabouts of respondent’s family, means of support both in Australia and overseas, respondent’s income and any financial support available in the other country, respondent’s other connections to that country, and respondent’s citizenship and any other restrictions on ability to stay in Australia etc].
  19. On Thursday the [date] the respondent said to me words to the effect “ I am taking the children to XX and you will never see them again”. [include full details of any threats made to remove children].
  20. I believe it would be detrimental to the children’s well being to be removed from Australia.
  21. I ask this Honourable Court grant me the orders as set out in my application preventing [children’s names] removal from Australia and placing their names on the Airport Watch List.

Useful contacts

Legal help

Note: Unless otherwise stated phone numbers have the NSW prefix 02.

  • LawAccess NSW
    1300 888 529
    A telephone service which provides legal information, referral and in some cases legal advice.
  • Legal Aid Family Dispute Resolution Service
    9219 5118 or 9219 5119
  • Legal Aid NSW Child Support Service
    1800 451 784 or 9633 9916
  • Law Society of NSW Community Referral Service
    9926 0300 or call LawAccess on 1300 888 529
  • Combined Community Legal Centres
    9212 7333 to find a legal centre near you, or look in the white pages under “Legal Centres”. You can also search for a centre in your area.
  • Wirringa Baiya Aboriginal Women’s Legal Centre
    9569 3847 or 1800 686 587
  • Women’s Legal Service NSW
    9749 5533 or 1800 801 501
    TTY for deaf and hearing impaired women
    1800 674 333
    Advice times: 9.30am-12.30pm and 1.30pm-4.30pm every day except Wednesdays.
  • Indigenous Women’s Legal Service contact line
    1800 639 784. 10:00am - 12.30pm and 1.30pm - 4.00pm every day except Wednesdays.
Help with domestic violence
  • Domestic Violence Advocacy Service
    8745 6999 and toll free 1800 810 784
  • DoCS Domestic Violence Line
    1800 656 463 - 24 hours 7 days
Courts

The Family Law Courts share their registry and telephone information services. Throughout this document the Family Court of Australia and the Federal Circuit Court of Australia are referred to collectively as “the Court”.

Mediation and counselling services
Other contacts
  • Airport Watch List
    (02) 9286 4000 - 24 hours 7 days
    Co-ordination Centre Family Law - 6126 7999
  • Centrelink
    1800 050 004
  • Child Support Agency
    131 272
  • DoCS Helpline
    132 111
  • Federal Police
    6223 3000
  • NSW Registry of Births Deaths and Marriages
    1300 655 236
  • Translating and Interpreting Service (TIS)
    131 450. If you need an interpreter call TIS
    and ask to be put through to LawAccess on 1300 888 529.

Legal Aid NSW Offices

The current list of Legal Aid Offices can be found in the Contact us section of this website.

 

This publication is intended as a general guide to the law. It should not be relied on as legal advice and it is recommended that you talk to a lawyer about your particular situation.

At the time of printing, the information shown is correct but may be subject to change.

If you need more help, contact LawAccess NSW on 1300 888 529.

A print copy of this brochure may be ordered online.

Last updated June 2013