NSW Custody of Children - Mother Looked After Kids When I was Sick Now Won't Return

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jacinta warhurst

New Member
19 March 2015
My mother was temporary looking after my kids while I was in hospital. Now I'm out, I want them back, but she won't let me she won't even let me go to her place to see them and she even rung Centrelink and pretended to be me to get my family payment. She has no consent orders or anything so do I have the right to get them from school and keep them?

Sarah J

Well-Known Member
16 July 2014
Melbourne, Victoria
Hi Jacinta,

I am not an expert in family law. However, if your mother (is she the child's grandmother?) refuses to return your children, you can apply to the Family Court for a recovery order. This is an application for a court order to have the children returned to to their parents or primary carer.

In considering your application, the court will ask what is in the best interests of the children? While it is desirable for the children to have a close relationship with their grandparents (under the Family Law Act), the court recognises (and presumes) that the primary interest is having close relations with the parents.

Other matters the court considers:

The Court will primarily look at:

  • the benefit to the child of having a meaningful relationship with both parents
  • the need to protect the child from harm
The Court will also look at:

  • the views of the child (the importance given to the child’s views will depend on their age, maturity and level of understanding)
  • the child’s relationship with parents and others, including grandparents and other relatives
  • each parent’s willingness and ability to facilitate and encourage a close and continuing relationship between the child and the other parent
  • the effect of any change to the current situation on the child
  • the practical difficulties and expense involved in ‘spending time with’ and ‘communicating with’ a parent
  • the capacity of each parent and others to provide for the child’s needs (as a grandparent this may include your health, age and financial circumstances)
  • the maturity, sex, lifestyle and background (including culture and traditions) of the child and parents
  • if the child is Aboriginal or Torres Strait Islander, the child’s right to enjoy Aboriginal or Torres Strait Islander culture
  • each parent’s attitude to the child and to parenting
  • any family violence involving the child or a member of the child’s family
  • any family violence order that might exist
  • the desirability of making the order that is least likely to lead to further court proceedings
  • any other circumstance the Court thinks relevant." (taken from Legal Aid NSW)


Well-Known Member
23 July 2014
I agree with the above, and add that only the parents, not the grandparents, have parental responsibility for a child. This means the only people able to make decisions about who the children live with are you and the father.

As there are no orders in place, you are well within your right to collect the children from school and take them back into your care. You don't need the grandmother's consent to do this.


Well-Known Member
13 February 2015
Gold Coast
I know that unless you already have sealed court order in place a recovery order can't be ordered by the court. If you are doing the right thing and looking after them properly then go get them back. It is not your mothers right to withhold your children from you. If it is taken to the court by was of initiating application then it will be more difficult to get the children back in your care the longer they are out of your care and waiting for a court date will be enough time for kids to be established and harder to remove them from your mother.