Speak to a lawyer urgently.
Tell your lawyer what happened and provide any supporting evidence and documents such as text messages with your ex about the arrangement and their refusal to return the kids.
Normally the first step your lawyer will take is to write to your ex. The letter should advise your ex that you have formally retained a lawyer, asks your ex for the immediate return of the kids to your care and specify dates, times and location of the handover. The letter will also seek an immediate response and their failure to respond by the deadline will result in you filing Court proceedings against them.
If your ex responds appropriately, then you can negotiate the return of the kids without the need to go to Court.
However if your ex responds negatively, your lawyer would then need to prepare court documents for an urgent recovery order, which is a fancy way of saying that you are seeking a Court Order for the immediate return of the kids.
The most commonly used wording of the urgent recovery order is as follows:
"The Marshal of the Court, all officers of the Australian Federal Police and all state and territory police officers are requested to find and recover [child/ren & date of birth] and deliver the [child/ren] to the [father/mother/other] and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the [child/ren] may be found."
Some things you should consider addressing in your supporting affidavit:
Background of the matter including:
- date of commencement of cohabitation/marriage
- date of separation on a final basis
- date of divorce
- names, ages and date of births of child/ren of the relationship
Reference to existing court orders or parenting agreements
History of the care arrangements of the child/ren
Details of the failure of your ex returning the child/ren including your requests and their rejection of the return of the child/ren
Explanation of why returning the child/ren to your care is in their best interest (as to satisfy the Court's paramount consideration)
Any other relevant issues.
You should also annex any documents which support the above points such as a copy of the court orders or parenting agreement, text messages or emails between the parties about your ex's failure to return the kids etc.
If your ex refuses to comply, the Australian Federal Police may be involved in the recovery of the kids.
The whole process can be traumatising for both the children and the parties. We strongly recommend that you do not withhold child/ren in breach of any orders or agreement. If you do, the Court will look unfavourably on you as a parent and it may hurt your case. Many parents who withhold child/ren are parents who are frustrated at their minimal and restrictive parenting time.
Before making any unilateral parenting decisions, please speak to your lawyer and discuss its impact on your case. If there is a reasonable explanation such as issues about the child/ren's safety in the care of the other parent, you should raise this with your lawyer who will then file the necessary urgent parenting application to amend the orders. It goes without saying but you will need evidence of your concerns about the child/ren's safety to be included in your supporting affidavit.
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*** Disclaimer:
Information on this website or post does not constitute legal advice and that electronic dialogue with readers does not constitute any form of client engagement unless specifically agreed.
The information is provided on a general basis only. We strongly recommend that you seek your own independent advice from a lawyer about your situation.
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