In this article, we cover what you should do if you ever find yourself in the daunting situation of the other parent taking child without permission in Australia.
We will also discuss if this behaviour is ever acceptable or legal in Australia.
Generally, it is illegal for a parent to take their child without the permission and knowledge of the other parent. There are a few exceptions here. Let’s cover them first.
Parent taking child without permission in Australia – when is it ok?
When ex partners reach a parenting settlement, it is assumed that both parents will uphold the settlement, both in terms of contributing to the agreement, and not encroaching on the rights of the other parent.
However, in some instances, a parent may take a child without the consent of the other parent or withhold the child. This is only acceptable when:
- The other parent may be exposing the child/children to substance or alcohol abuse
- There is a history or recent occurrence of family violence
- The other parent is unable to care for the child due to severe mental illness or instability
In other words, the other parent cannot ensure the safety of the child or children. If you fear for the safety of your child with the other parents due to the reason above, you can withhold or take your child.
The court will generally be sympathetic to the reasons stated above – however, the onus will be on you to prove to the Court your allegations.
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.
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.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.