A mother cannot legally withhold a child from the father if there are court orders in place governing spending time, unless the child’s safety is at immediate risk. The legality of such actions is complicated by the existence of conflicting international orders or legitimate concerns regarding family violence.
Conflicting international orders
Where an Australian order is in force but a registered overseas order has a different effect, section 286 provides a process to resolve the conflict. A party may apply to the court to either discharge the Australian order or cancel the registration of the overseas order. The court will typically act if the child’s welfare would be adversely affected or if circumstances have changed since the overseas order was made.
Removing a child from Australia
Under section 190, it may be lawful to take or send a child outside Australia if the person believes the conduct is necessary to prevent family violence. For this to be a valid defence, the conduct must be reasonable in the circumstances as the person perceives them. However, the person asserting this must bear the evidential burden in court.
State and Territory protections
State and Territory laws can be used to prevent a child from leaving Australia or being retained outside the country under section 65ZD. These laws operate independently of the Family Law Act to ensure children are not removed from the jurisdiction. This allows for swift action to stop a child from being withheld through international relocation.
The jurisdictional conflict
The most difficult practical issue arises when a parent relies on an overseas order to justify withholding a child in Australia. While section 286 allows the court to resolve these contradictions, there is often a dangerous gap in time between the child being withheld and the court making a final determination on which order prevails.
Questions to consider
- Are there any existing overseas orders that conflict with current Australian parenting arrangements?
- Is the child being withheld based on a perceived necessity to prevent family violence?
- Have any steps been taken under State or Territory laws to prevent the child from being taken outside Australia?
This information is general in nature and does not constitute legal
advice. For advice specific to your situation, contact JB Solicitors.