Is the mother of your children withholding your children from you?
This is a common occurrence in Australia when parents are not on good terms. It’s quite a nasty situation, but is there anything you can do about it?
Well, it depends, really. Suppose the mother has Court orders which grant her sole parental responsibility of your children, and you do not have any visitation or custody rights whatsoever. In that case, they are well within their rights to withhold your child from you.
But what if no such Court orders exist?
The purpose of this article is to discuss the various situations that arise around the theme of a mother withholding a child from a father in Australia.
The Children’s Mother Is Not Complying With Court Orders
It does not matter whether the father or the mother is withholding the child from the father in Australia. In the eyes of the law, both are inexcusable. Suppose there are Court orders that grant the father rights to visit the children, attend events, or even have some degree of custody. In that case, a mother withholding a child from a father in Australia is a severe breach capable of attracting legal consequences.
Fathers typically believe that the Court will have a bias in favour of the mother and that it is hopeless to pursue any matter against the mother in Court because a judge will always side with them. This may have been true a very long time ago, however, it is far from the case in modern times.
Depending on the gravity of the violation – a mother withholding a child from a father in Australia without a reasonable excuse may face sanctions such as monetary fines, a good behaviour bond and even community service.
Reasonable Excuse For Mother Withholding Child From Father Australia?
Despite the existence of Court orders, there are some genuinely acceptable reasons for a mother withholding a child from the father in Australia.
For these circumstances to be acceptable, it must be a ‘reasonable excuse’ for the Court to be satisfied.
Reasonable excuses include:
- If the mother genuinely did not understand the requirements of the Court order; and
- If the mother genuinely believed that they had to withhold the child from the father to protect either themselves, another party or the health and safety of the child.
The Current Orders No Longer Work
Suppose any of the above situations apply to you. In that case, it is recommended that you seek some legal advice on what can be done to modify the orders before you put yourself in a position where you must breach them.
In some other situations, the current Court orders in place no longer reflect the circumstances of both parties and are simply impractical or even impossible to follow. Even this is the case; you should still try and approach the other party and resolve the issues informally before pursuing any legal action where possible.
If you are unable to resolve the matter informally, it is essential to note that the costs of pursuing legal action are both monetarily cost and time-consuming. Accordingly, a mediation session with a neutral third party may be ideal for this situation.
What Action Can You Take If The Mother Is Withholding Your Child From You?
If, despite your best efforts to resolve the matter amicably, the mother is still withholding your child from you. In that case, you should strongly consider filing an application to the Court stating that. The Court will accordingly enforce the orders and penalise the mother for their breach.
An application for a breach of parenting orders may be filed in the following way:
1. First, you must file what is known as a contravention application. This application will also require a supporting affidavit.
2. Secondly, a certificate from a solicitor or registered family dispute resolution practitioner is also required. Alternatively, a certificate from a registered family dispute resolution practitioner is also required. Alternatively, an ‘Affidavit – Non-Filing of Family Dispute Resolution Certificate’ may be used instead.
Importance of Seeking Legal Advice
When discussing topics such as a ‘mother withholding child from father Australia’, it is essential to remember that this may or may not be allowed, depending on the terms of your parenting arrangements, or if it is for a good reason such as to keep the children safe.
If you have any questions about the legalities around a mother withholding a child from a father in Australia or any other family law and parenting arrangement matters, feel free to contact our team of friendly and experienced family lawyers today.
Here at JB Solicitors, we’ll make the process as pain-free as possible. We have fixed-fee pricing for family law, giving you a clear sense of the costs from the start, and we will be sure to help you out every step of the way. With years of experience under our belt, we pride ourselves on making each client’s family law experience as positive as possible.
Contact JB Solicitors today to speak with one of our friendly and experienced family lawyers.
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