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When a marriage breaks down, hundreds of thoughts run through your mind but one thought that always rises above the rest is about your children.
Many fathers want to the answer to: "can my wife take by children?" In this article, we break down the Rules and the Family Law Act in Australia and what these say about custody and relocation of children.
We also give you tips to avoid parenting issues and if your child is taken how to get them back.
Does My Wife Have the Right to Take Our Children Without My Consent?
No, your wife doesn't have the right to take your children without your consent in Australia, unless there's a parenting order in force, an emergency arises, or another special extraordinary situation.
Under the Family Law Act, if there are no court orders, both parents share the power, responsibility, duty, and authority to make major life decisions related to the child's life, irrespective of whether parents are separated, remarried or married. That means all important decisions like where the child lives and travel, require both partners to consult with one another and make a genuine effort to reach a joint decision that is in the child's best interests.
The unilateral relocation of the child has also been a point of contention in many legal cases like Morgan v Miles (2007). In this case it was held that a parent does not have the right to change the location of the child without the consent of the other parent merely because the child spends majority of the time with that parent. The court will assess the circumstances as a whole to determine what is in the child's best interests, including the opportunity to have a meaningful relationship with both parents. Whilst relocation might ultimately be in the child's best interests, the court explained that it's illogical to make an unauthorised unilateral move and that impairs one parents' ability to spend time with the child.
Parenting Plans
If you are recently separated from your spouse and feel that he/she would like to relocate with your child, then you should engage a lawyers to assist in preparing a legally enforceable a parenting plan. A parenting plan establishes the limits and responsibilities of each parent with respect to their child, ensuring that in case of any sudden relocation, you have the legal avenues to get your child back.
What Should I Do if My Wife Takes My Child Without My Consent?
If your wife has taken your child without your consent, it's natural to feel unsure of what to do. First, understand that the Family Law Act provides appropriate ways to locate and recover your child through urgent court processes.
If your child is taken without your consent, you can make an urgent application with the Federal Circuit and Family Court seeking a Child Recovery Order.
A recovery order can authorise and direct persons, such as the Australian Federal Police, to take appropriate action to find, recover and ensure the safe delivery of your child to your care.
If there are no parenting plan or parenting orders on foot, to apply for a recovery order you must demonstrate legitimate concern for the child's welfare due to the unauthorised removal from your care. Where a child is in imminent danger, the court has the power to expedite the court process and for the matter to be heard on an urgent basis.
You can also apply for a location order along with the recovery order. This location order requires the organisation, agency, or person to provide information about the child's whereabouts.
Can a Mother Take a Child Out of the Country in Australia Without the Father's Permission?
If a parenting order has been made about your child, or someone has applied for a parenting order about your child, it is a criminal offence to remove the child from Australia without the consent of the other parent, or specific orders allowing them to do so.
It may constitute international child abduction under the Hague Convention if a child is taken out of the country without the consent of the other parent. In these circumstances, you should seek legal advice.
To prevent your spouse from taking your child overseas, you can make an application and request that the Australian Federal Police place the child's name on the Family Law Watchlist to prevent the them from leaving the country.
What Is the First Step to Arranging Child Custody After Separation?
The first step in arranging child custody after separation is to prepare a parenting plan based on the living arrangements, decision-making responsibilities, communication, special occasions, and financial issues. It will provide clarity and prevent misunderstandings between the parents when separation is still at its early stage.
What Are the Steps to Write a Parenting Plan for Your Children After Separation?
A Parenting plan is a voluntary agreement in writing that is signed and dated by both the parents. It is made by keeping the best interest of the child in mind, ensuring a healthy co-parenting relationship, and dealing with how short-term and long-term decisions will be managed with respect to your child's upbringing. Here are the most important steps to write a workable parenting plan for your child.
Identify the key details
- Living arrangements: Which parent the child will live with, what will be their primary residence.
- Time Spending: How frequently will the child spend time with each of the parents. For example, this can be alternating week arrangements, or specific weeknights and weekends.
- Major Decision-Making: How the most important decision related to the child will be made and by whom. Eg schooling, medical care, cultural and religious upbringing, etc.
- Communication: How will the child communicate with their parents, how do the parents facilitate this communication, and how will they communicate with one another.
- Arrangements for Occasions and Special Days: How the holidays, festivals, birthdays will be shared.
Avoiding disputes and ensuring focus on the child's best interests
Finalising a parenting plan requires a detailed discussion between the partners about the matters listed above and others unique to your family circumstances. However, with the relationship hitting a rough patch, emotions can easily overshadow the practical, calm conversations needed to finalise a workable parenting plan.
Should a dispute arise, families can try resolving this through an out of court Family Dispute Resolution with a suitably qualified practitioner. This is a form of mediation in which families discuss their disputes in a child- focused environment and are encouraged to negotiate and reach an agreement.
Document the Plan
Once you reach the final arrangement, review it carefully before signing and ensure that it states exactly what you intended or discussed. Once it is signed, it is called a parenting plan. A parenting plan is not legally enforceable but can be used as evidence in court as a previous arrangement in case of disputes.
Making it enforceable
The next step is to make your parenting plan legally enforceable by preparing the application for consent orders and filing the documents with the Federal Circuit and Family Court of Australia. Once the court approves it, it is called a Parenting Order. Both parties must comply with the Order and conventions without reasonable excuses can give rise to significant punitive consequences.
If you want help in writing or formalising a parenting plan that is in the best interest of your child but unsure of what to discuss and how to negotiate with the other parent, then you can contact PCL lawyers. Our expert family lawyers have many years of experience in advising, negotiating and creating parenting plans that prioritise your child's welfare, balances parent's rights and help avoid future disputes.
IMPORTANT: If you want to make the parenting plan legally enforceable but are unsure of any section agreed in the parenting plan, it is advisable to take legal advice from a family lawyer in Australia to ensure you are aware of your legal rights and obligations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
