On this page: This page outlines what happens when a parent has run off or is retaining the children without your consent.

The other parent has run off or is retaining the children without my concent

Speak to a lawyer immediately. Your options will depend on an evaluation of all the circumstances.

If you have parenting order that children live with you, or the children normally live with you, and the other party has taken or is withholding them without agreement, you can apply to the Court for a recovery order. If the children are at immediate risk, the Court will hear your matter without delay.

A recovery order allows State and Federal police to locate the children. They will have wide entry and enforcement powers to do this. If the children have a passport, ask the Court for an Airport Watchlist Order. This will prevent the children from leaving Australia.

If the children are not at immediate risk, and you don’t know where they are, you can ask the Court for a location order which allows government departments to examine their databases and provide information to the Court registry.

If the children have not been returned from overseas, speak to a lawyer immediately. Australia has an agreement with many other countries about the return of children removed without agreement. The Australian government will, with the help of your lawyer, apply to have the children returned to Australia.

Before agreeing to the children travelling overseas, check the list of countries that have signed to Hague Convention on the Commonwealth Attorney-General website. 

          Click here to view the countries that are signatories to the Hague Convention

If the proposed country is not listed, the Australian government will have no power to seek the return of your children.

To determine eligibility VALS will:

  • enquire as to the Aboriginality of the client;
  • enquire as to perceived or actual conflict of interest;
  • enquire as to compliance with the Means Test;
  • consider the merit of the client’s matter.

Aboriginality
The first time someone uses VALS they must provide proof of their Aboriginality using the Confirmation of Aboriginality Form. This form must be signed and sealed by the Officer Bearers of a recognised Aboriginal and Torres Strait Islander organisation.

Conflict
VALS must not decline to provide assistance to an eligible person, group or body on the grounds that the other party to the matter is an Aboriginal and/or Torres Strait Islander person. In circumstances where the relationship between the parties to a case would result in a conflict of interest, that conflict must be managed in accordance with the Victorian Legal Practice requirements and Policy Direction 9 – “Managing Conflicts of Interest” – of the Attorney-General’s Department Policy Directions for the Delivery of Legal Aid Services to Indigenous Australians (2008).

VALS will not act if a conflict of interest exists. A conflict of interest may be an ‘actual’ conflict of interest or a ‘perceived’ conflict of interest. A conflict of interest can involve:

  • Clients who have different interests, such as VALS may have advised or acted for person “A” (old client) who has an interest that conflicts with person “B” (intended new client).
  • Clients and VALS, such as a VALS staff member or Board Member has an interest that conflicts with an intended new client. Conflicts involving client-provider relationships are:
    •  An owner, director, manager, employee, contractor or agent of VALS and/or;
    • An employee of the Department; and/or
    • A close relative (spouse, de facto, parent, sibling or child) of any of the above.

VALS provides assistance on a first in best dressed basis (i.e. provide direct assistance to the party who approaches VALS first). VALS will refer the other party to another legal service provider or “brief out” the client to a private lawyer (subject to the client meeting the requirements for brief outs). Where appropriate, VALS may act for one client and provide assistance by brief out to the other.

Means Test
Where a person seeks casework assistance, VALS must ensure that applicants satisfy the Means Testing provisions of the Policy Directions.

VALS must ensure that all applicants for legal casework assistance satisfy one or more of the following requirements:

  • Under 18 years of age;
  • Main source of income comes from Community Development Employment Projects; (CDEP) participant wages or Centrelink (or equivalent) benefits; or
  • Gross household income is under $52,000 per annum.

Note: Household income includes the income of your partner, spouse, relative including an adult child who you live with.

The Means Test will be administered in two parts:

Part A: Requires the completion of a small number of questions relating to the applicant’s personal circumstances and income level.

Part B: Is required where applicants do not satisfy the criteria in Part A. It requires more detail about the applicant’s income, assets, employment status and number of dependents.

Merit Test
Discretion will be used to determine if a particular case has merit.