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Can a Father Take a Child Away from the Mother in Australia?

Can a Father Take a Child Away From the Mother in Australia | Justice Family Lawyers

In Australia, both fathers and mothers have equal rights regarding child custody and care, so when it comes to the question, “Can a father take a child away from the mother in Australia?” The first thing that needs to be clarified is if court orders are in place.

If no court orders are in place, the default position is that the child should stay with the child’s primary carer and follow the current parenting arrangements.

A child’s primary carer is the person responsible for the day-to-day care of the child. This may include providing for the child’s physical needs, such as feeding, bathing, and dressing, as well as the child’s emotional and psychological needs.

If a father seeks to take a child away from the mother, he may need to initiate legal proceedings in the family court with the help of a child custody lawyer.

A father may initiate proceedings by filing an application for time with the children.

What Makes A Mother Unfit In The Eyes Of The Court?

Can a father take a child away from the mother in Australia, and what makes a mother unfit in the eyes of the court?

A father cannot simply take a child away from the mother without legal cause or consent. If parents are separated or divorced, custody and visitation arrangements should be agreed upon in a parenting plan or established by a court order.

If a father takes a child away from the mother without consent and violates a court order, it can be considered parental kidnapping, a serious offence.

However, there are situations where a father could gain full custody or significantly more visitation rights, such as in cases where the mother is found unfit or unable to care for the child.

Here are some grounds to remove the child from the mother:

Factors that can contribute to this ruling:

  • Neglect: If the mother consistently fails to provide for the child’s basic needs, such as food, clothing, and hygiene, this could be grounds for being deemed unfit.
  • Abuse: Physical, emotional, or sexual abuse toward the child is a significant factor in determining fitness.
  • Substance Abuse: If the mother has a serious drug or alcohol problem that risks the child’s safety, the court may consider her unfit.
  • Mental Health Issues: Severe mental health problems that hinder the mother’s ability to care for the child can also be considered.
  • Failure to Follow Court Orders: If the mother repeatedly fails to follow court orders related to the child’s care and custody, this may impact the court’s perception of her fitness.

Read more, can a mother lose custody for not having a job?

Steps to Establish or Modify Child Custody Arrangements Before Taking a Child Away From the Mother

Can a father take a child away from the mother in Australia? What steps can be taken first to establish or modify a child custody arrangement before taking the child away from the mother?

If you are a father seeking to establish or modify child custody arrangements, there are several steps you will need to follow before you take a child away from the mother.

These steps may vary depending on the specific circumstances of your case.

Here are some general steps to consider when starting custody proceedings in court as a father:

  1. Gather relevant information and documents. This may include prior court orders or agreements related to custody, and any evidence of any harm or abuse your child may have suffered.
  2. Try and negotiate a parenting arrangement with the mother. This includes attending mediation with a mediator.
  3. Seek legal advice. Working with a lawyer who is experienced in family law and can help you understand your rights and options is essential. Your lawyer can also help you prepare and present your case to the court.
  4. If negotiations are unsuccessful, you must prepare the appropriate court forms. Your lawyer can help you determine the proper arrangements to file and assist you in completing them.
  5. Serve the other parent with the court documents. You must provide the other parent with copies of the court documents you have filed. This can typically be done by having a third party serve the documents to the other party.
  6. Attend court hearings. You must attend any court hearings or conferences related to your case. This may include mediation sessions, pretrial conferences, and the actual trial. Your lawyer can represent you in court and advocate on your behalf.

It is important to remember that the court’s primary consideration when deciding child custody is the child’s best interests.

The court will consider a range of factors, including the child’s relationship with each parent, the child’s needs, and the child’s wishes (if the child is old enough to express them) when making its decision.

Working with your lawyer to present a solid case to the court and keep your child’s best interests at the forefront of your mind throughout the process is essential.

The court will consider a range of factors, including the child’s relationship with each parent, the child’s needs, and the child’s wishes (if the child is old enough to express them) when making its decision.

parent taking child without permission

Parent Taking Child Without Permission – What You Can Do

What do you do if you are an able and capable parent contributing your fair share to the parenting agreement and the other parent decides to take your child your permission?

There are both non-legal and legal options for you to consider. Let’s unpack them.

Non legal options

If the other parent of your child is guilty of taking your child without permission or withholding your child, and neither one of you has a history of domestic violence, then most likely, it is due to your relationship being tense.

You can always try to resolve this problem civilly with the other parent of your child by:

  • Attempting to talk to them directly
  • Send an intermediary to resolve the matter (could be a family member or friend)
  • Resolve the problem with the help of your lawyer, and possibly their lawyer as well

If you exhaust these options, then it may be that you’ll need to resort to the courts. We talk about that in the next section.

 

Legal options

One of the legal options available to you to recover your child from their other parent, or to ensure they are complying with the parenting orders put in place is to file for a recovery order

It is important to note that if you are not currently in the midst of parenting orders, your recovery order needs to be filed in a parenting orders application. 

In the recovery order that is submitted with parenting orders, you may need to include an affidavit that covers:

  • A list detailing previous family orders and court hearings
  • Details relating to when and how your child was taken from your without permission
  • Your efforts in retrieving your child
  • An outline of why it is in the best interest that the child is returned to you

Once filed, the Court will appoint a hearing date. If the Court stipulates a recovery order, the order will need to be served to the other parent of your children.

This will most likely be done by the police – they will likely also handle the logistics of returning your child to you. Once your child is returned to you, you must notify the Court.

When your child is returned with you, you may consider revisiting the parenting orders assigned by the Court earlier. Read our guide on changing family court orders to learn more.

In the unfortunate event of a child not being found after a recovery order is made, the Court can make a location order, stipulating that the person who has the child reveal their whereabouts. Other orders that the Court may enforce to locate a child that may have been abducted by one of the parents include a Commonwealth information order and/or publication order. 

If you’ve found yourself in this deeply distressing situation and need support, don’t hesitate to get in touch with our legal practitioners for a confidential consultation.

Father Sought Custody of Child at Justice Family Lawyers

In a challenging case at Justice Family Lawyers, a concerned father sought our help. Under the mother’s custody, his child was under neglect due to a heroin addiction. The father was distressed, knowing his child wasn’t receiving the care needed for a healthy life.

Our expert lawyers launched a comprehensive custody case, presenting substantial evidence about the mother’s condition and its effect on her parenting. We successfully illustrated the father’s capability to provide the child with a safe, nurturing environment.

Following our robust representation, the court awarded the father full custody. Today, his child lives a happy, secure life under his caring supervision, thanks to the diligence of Justice Family Lawyers.

Can a Father Take a Child Away From the Mother in Australia?

Are you a father concerned about your child’s welfare under the mother’s custody? At Justice Family Lawyers, we specialise in complex custody disputes.

Our team will strive to ensure your child’s best interests are met. Contact us today to navigate this challenging journey towards securing your child’s well-being.

5 thoughts on “Can a Father Take a Child Away from the Mother in Australia?”

  1. I truly appreciate the informative content on this page. Child custody issues can be incredibly sensitive and complex, and it’s reassuring to see a resource that provides valuable insights and guidance for fathers facing these challenges. The information here is well-organized and practical, offering support to those who need it most. Kudos to Justice Family Lawyers for addressing such an important issue with empathy and expertise.

  2. After reporting to child protection about Kids especially girls being baby sit by different males, can father keep the kids from mother even there’s no court order?

    1. The involvement of child protection services does not automatically grant the father the right to keep the kids from the mother. If there are concerns about the children’s safety, in the care of either parent it is important to address them through the appropriate legal channels where possible. It is advisable to seek immediate legal advice from an experienced family lawyer regarding the situation.

  3. Hi there single dad here
    I have a ex partner and we have a beautiful 8 month old baby
    Have been split up and she has
    Dictated my visit 10hrs a week
    Been very resentful
    She has moved around In 4 homes going In to her 5th home the last 6 months
    She is diagnosed with bipolar
    Been to rehab
    Been diagnosed with post navel depressing
    And also been medicated for all of them but not taken any
    She is very aggressive towards me
    Very poor communication
    She also smokes cannabis
    I’ve been emotional abused
    I’ve tried to keep the peace and I’m doing everything for the sake of my daughter
    She is making thing very bad
    I’ve tried to do mediation
    I’ve asked beg and pledded for peace
    Very Toixc and being a Man we don’t stand a chance in court
    And only of recently I had a ex partner for 15 years ago reach out me saying my ex has contacted her trying to get character reference on me
    My ex also said she want me out of the picture and she will do anything it takes
    And just recently I had call from the police ,
    It’s now out of controll
    Do I just walk away as much as I love my daughter , but I can not be around this ex and last thing I would do is put my daughter threw all this as well

    I feel she is doing everything to get me to react I’ve stayed in no contact
    Only when it comes to yes for pick up times and drop of times
    But she is getting abusive when I pick up and drop daughter of
    And she constantly changing the arrangements

    There is no court order in place
    I come from a good family and I’m a a good man and I feel I’m a meal ticket for my ex , and she knows what I earn

    So if there is no court order and I decide to say I’m the primary career of my daughter and I remove her from the environment she is In
    As I believe I’m fit and proper

    What would I be facing ?
    No court order
    Would the police just do welfare check?
    Should I apply for full custody to the courts and lodge form than take the child ?
    Before I get judge
    My child is a very happy baby in my care and when the ex was living under my roof
    I did bathing
    Changing nappies
    Feeding
    Up there the night
    I have routein and structure and my environment is better for my daughter
    Stable home
    I also can be able to stay at home for the next 5 years and not have to work

    1. Without a court order, both parents typically have equal legal rights to their child. Taking your child without legal proceedings or an agreement can therefore lead to legal complications and might not be viewed favourably by the court. If you believe your child’s welfare is at risk, you can apply for sole custody. The court’s primary concern is always the child’s best interests, including their safety, stability, and overall well-being.
      Given the complexity of your situation, it’s strongly recommended that you consult with an experienced family lawyer. They can guide you on the best course of action, considering the welfare of your child and your rights as a father.

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