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)