“My Former Partner Has Not Returned My Child. What Can I Do?”

Charissa Duffy writes about the contentious issue when a parenting agreement is not honoured.

TGB’s Charissa Duffy writes about the contentious issue when a parenting agreement is not honoured. 


Going through the process of separating is stressful, challenging and often emotionally-charged for all involved, particularly when there is a child to consider.

It is most important to ensure that children have stability, routine and the support they need to flourish and grow, from both parents if possible. Care arrangements often require some ‘trial and error’ as both parents adjust to post-separation life and find a consistent schedule that works for them.

Unfortunately, it is all too common to see the emotions and/or financial interests of one (or both) of the parents overshadow their focus on establishing a practical, workable routine of care for their child with the other parent.  The reasons for this can be many and varied and may be motivated potentially by an attempt to gain financial advantage in property settlement, avoidance of child support obligations or simply an attempt to hurt the other parent. In these circumstances, irrespective of whether or not formal arrangements are in place, a parent may fail to return the child to the other parent as scheduled.

For the parent who is expecting their child to be returned to them, the prospect that their child has been withheld by the other parent is confronting and upsetting.

If you find yourself in this situation, do not panic but seek support from family and friends. Immediately attempt to contact your former partner to establish whether he or she is prepared to negotiate an agreement for the child to be returned.  It is also important to contact your local Police who are able to attend your former partner’s home and check on your child.  If you are concerned that your child is at risk in your former partner’s care, you must notify the Police of your concerns.

If you cannot reach an agreement about the return of your child, or are unable to contact the other parent, the next step is to urgently apply to the Court for a Recovery Order. This means that the Court grants Federal and State Police the power to collect your child from the other parent and return them to you.

It is important to obtain legal assistance when preparing an application for a Recovery Order so there is no added delay caused by errors or omissions in the application.

When you make an appointment to see a family lawyer to discuss an application for a Recovery Order, it is helpful to have with you: 

– Full details of the commencement of your relationship or marriage and when separation occurred

– Dates of birth of your children

– Full details of the circumstances around your child not being returned

– Any issues of concern (eg risk of violence, drug/alcohol use etc.)

– Any evidence of arrangements made since separation relating to care of the children i.e. parenting plans, orders or text messages/emails between yourself and your former partner.

If you have not been able to contact the other parent, the application for a Recovery Order may need to be accompanied by a Location Order.  A Location Order enables the Court to be provided with information about the parent’s whereabouts so the Recovery Order can be enforced.

If you have concerns that the other parent may attempt to remove your child from Australia, you must seek urgent Orders from the Court that your child’s name be placed on the Airport Watchlist with the Australian Federal Police, which means that all Commonwealth entry and exit points will be notified to prevent your child from being taken out of Australia.

At Tindall Gask Bentley we have the largest family law team in South Australia and an office in Western Australia, and would be pleased to help you with any family law matter arising from your separation including children and property matters.

Contact your local TGB office or register online.