Can a mother take a child away from the father in New South Wales?

Disputes between partners often lead to bitter divorces. If there are children involved, then custody battles can also ensue. In families with children, fathers sometimes wonder whether the mother can take the child away from the father. This is a fair concern, as around the world, mothers are viewed as the more dominant parent, however, this is an archaic and incorrect perspective. Misinformation surrounding the custody rights of fathers in Australia can lead to unnecessary worry and stress, for both parent and child. However, in Australia, a mother cannot  legally take away a child from the father.

What is the philosophy behind Australia’s Family Law Act 1975 and custody rights?

To properly understand why mothers are not allowed to take away their children from the father, you must understand how Australia approaches its family law. 

In Australia, custody rights, which are outlined under the Family Law Act 1975, are approached with the child in mind – not the mother. Under this Act, the Family Court of Australia must always legislate according to what is best for the child and will not start with the assumption that the mother is due to preference. This sole idea explains why a mother cannot unilaterally take custody of a child.

Generally, unless otherwise proven, the best interest of the child is considered to be when both parents are involved in their lives. However, the involvement of one parent may be denied by the Family Court of Australia if:

• a parent is a danger to the child; or
• a parent neglects their duties.

Was this always Australia’s approach to custody rights?

No, Australia changed it to move parental management away from litigation and closer towards cooperation.

This child-centred approach began on July 1, 2006, when Australia’s Family Law Amendment (Shared Parent Responsibility) came into force. The primary objective of this law is to ensure that courts always have the ‘best interests of the child’ as the paramount consideration. The following changes were made:

• Focus on the child so that they can have meaningful relationships with both parents.
• Encouragement of equal shared responsibility after separation/divorce.

How do you determine who gets custody of a child in Australia?

In Australia, most couples that divorce, often have joint discussions and successfully agree on their child custody arrangements without intervention from the Family Court of Australia. When this occurs, parents often put the child’s interest before everything.

If parents can’t mutually agree to an arrangement after separation, then they can attend family mediation services which will help them to come to a mutually agreed compromise for the child’s care.

The last resort is going to court. A judge in the Family Court of Australia will make a decision based on the best interests of the child.

What happens if a mother tries to take away the child from the father?

So what happens if a mother skips all of the above steps and takes the child away from their father?

If this happens, then it may be considered parental abduction. According to the National Missing Persons Coordination Centre, a parental abduction occurs when one parent takes, detains, or conceals a child from the other parent.

If this occurs and the child is subject to an order made by the Family Court of Australia or the Federal Circuit Court of Australia, then either court may issue a recovery order. A recovery order is defined in section 67Q of the Family Law Act 1975. It requires a child to be returned to:

• the parent of the child,
• the person who has a parenting order that states the child lives with, spends time with or communicates with that person, or
• the person who has parental responsibility for the child.

The parent whose rights have been violated should take this order and either give a copy to the mother who has taken the child or the Australian Federal Police (AFP).

It is an extremely serious case if a mother has taken the child in contradiction to a court order. For this reason, we strongly advise that you secure legal representation as soon as you become aware of the issue.

To protect yourself and your child and to ensure that you secure the best defence and representation possible in this emotionally exhausting time, contact Prominent Lawyers for our family law services.

Anita Pershad

*The contents in this article are solely intended to provide general information in summary and do not constitute legal advice. We recommend seeking the assistance of a legal professional to discuss any matters at hand.