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Child Custody Laws – Recovering your child from parental abduction

It is undeniable that every parent would go to the ends of the earth for their child; however some in desperate times take desperate measures which could potentially do more harm than good. Circumstances like this are apparent where parents are not properly advised as to child custody laws, as with the recent case in Lebanon involving Sally Faulkner and the 60 Minutes crew.

The story of Cameron the boy abducted by his mother linked below came frightfully close to being a child abduction case that took extreme measures, but for his father’s change of mind. Cameron’s father considered seeking assistance from a child retrieval agent to snatch his Cameron off the streets, however decided against it stating ‘the main reason [being] it might be dangerous for Cameron.’

Stories like Cameron’s are common and stress the importance for parents to act rationally It is important to familiarise yourself with safer and more appropriate ways to recover your child.

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Child custody laws and parental abduction

Following the latest reports about the child snatch with 60 Minutes and Sally Faulkner in Lebanon, the reality of parental abduction and child custody laws is being brought to the surface for some parents. As more cases of parental abduction come to light in Australia the importance of informing parents, particularly those facing a custody battle, of ways to avoid seeing themselves in the same position is growing.

A recent news report by The Australian (linked below) saw four year old Cameron abducted by his mother and taken to Zimbabwe following their separation. Finally returned home to his father at the age of nine, sadly it only occurred as a result of the death of Cameron’s mother.

Cameron’s father told The Australian how at the time he was stuck in a ‘fog of confusion’ “because you’ve no idea what you’re supposed to do”. The Australian has noted that

‘fewer than the 114 children taken from Australia during custody disputes in the past financial year have returned.’

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Child Custody Laws – Parental Abduction

The Australian Federal Police (AFP) report on this devastating and unfortunately familiar occurrence; noting that ‘two to three children a week [are] brought into Australia or taken out of the country by a parent.’ Moreover, the AFP highlight the disastrous misconception that society often holds that if “if the child is with someone they trust, they are not in danger and should not be considered as missing.” Child abduction by a parent presents many serious concerns, for the child in particular who is subject to emotional trauma, confusion and potential health risks with parents avoiding doctors to prevent being traced.

There are actions you can take to attempt to prevent this occurrence or to act in the unfortunate case that it occurs.  If you find yourself in this position or have reason to fear that your circumstances could potentially eventuate into a situation like this, it is advised that you seek advice on child custody laws  from a family  law lawyer. A family law  lawyer can aid you in either applying for a location or recovery order to attempt to have your child returned to you or to help you get Court orders to prevent your child from travelling overseas.

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The dangers of the self-litigant accused of domestic violence in custody law

This month, the Law Society of NSW Journal discussed a hot topic issue with the aid of the Women’s Legal Services Australia (WLSA): what happens when your abuser has the right to cross-examine you when seeking their child custody rights?

Unlike other jurisdictions, the Family Law Act 1975 that governs family law holds no provision to protect victims or vulnerable persons from direct cross-examination by a perpetrator. Direct cross-examination is having the person alleged to be an abuser of domestic or family violence communicate questions and demand answers directly from you in the witness box.

This is not a fanciful fear; the WSLA conducted a survey in 2015 in respect of the impact of direct cross-examination and family violence. Of the 330 women surveyed, 45% reported that their decision to settle their matter was due to the significant fear of being directly cross-examined by their abuser.

It is extremely important when meeting with a domestic violence lawyer to identify these fears and ensure they have all the information before them when giving you custody advice. Under the Family Law Act, a domestic violence lawyer may be able to best protect your child custody rights by using the safeguards found in the Act. This could mean ensuring that you are given access to the safe room at Court, given a support person at Court or being able to give evidence via audio-visual link up rather than in person at the Court.

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Child Custody Laws – Recovery of Children

Under section 67Q of the Family Law Act 1975 the Court has the means to authorise the recovery of a child who is taken or retained overseas. There are various ways in which a recovery can be commenced. The child custody laws  method is determined by the particular individual circumstance.

Circumstances may include:
  • One parent through agreement with the other parent takes the children on holidays, but then continues to reside in the new location without returning the children, or
  • One parent through agreement with the other parents take the children on holidays but extends the period of leave beyond what was agreed upon, or
  • When a parent does not gain the consent or knowledge of the other parent and removes the children
  • The circumstances can also include a grandparent, step parent, relative or carer that takes the children with or without consent.
What is a Recovery Order?

The court gives regard to section 67V, where the paramount consideration of a Recovery Order is the best interests of the relevant child or children. As such, the court will make an order that it finds proper in the circumstances that go to the best interests of the children. This may mean that the Court authorises a relevant authority, such as the Australian Federal Police, to locate and return a child to their primary caregiver, or individual that is in the child’s best interest.

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Child Custody Laws – Parenting Arrangements

Following the breakup of a relationship where children are involved, the children’s short and long term arrangements need to be organised between the parties. This is often difficult given the high emotional nature of separation. If this does become complicated it is suggested that you seek legal advice on child custody laws and assistance to find a solution that caters to the whole family and most importantly the best interests of the child or children involved.

Parenting arrangements, traditionally referent to as ‘custody’ look at things such as:

  • Who the child should live with
  • What parent is responsible for each aspect of the child’s upbringing
  • At what times will the child spend time with the other parent
  • What situations will require the parents to discuss matters relating to the child
  • How parenting arrangements can be altered

It is our hope to assist you in reaching these agreements with the other parent without the requirement of going to court.  Alternatively, we can also assist you in making informal agreements decided by you and the other parent legally binding. However, if both parties are unable to reach a single arrangement, than the court can make and enforce orders for you.

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Child Custody Laws: Parenting Plans and Parenting Orders

When making parenting orders under the Family Law Act 1975, child custody laws stipulate that the court is required to maintain the best interests of the child/children involved as the paramount concern.  It is advised that when divorce or a de facto relationship breakup occurs, that parents follow specific principles when making parenting plans.

Under the Family Law Act 1975 child custody laws highlight that:

  • both parents are responsible for the care and welfare of their children until the children reach 18, and
  • there is a presumption that arrangements which involve shared responsibilities and cooperation between the parents are in the best interests of the child.

Child Custody Laws: How does the court determine the best interests of the child?

When deciding on the best interests of a child, the court examines two tiers of consideration – primary and additional.

Primary considerations consist of:

  • The benefit to children of having a meaningful relationship with both parents.
  • The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
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Divorce Lawyer Advice on Parenting Arrangements

Divorce Advice – Parenting Arrangements

When seeking marriage breakup advice from a divorce lawyer in terms of parenting arrangements, the primary principle that will be established is shared parental responsibility. This means that until the child/children reach the age of 18 years, each parent has responsibility for the child regardless of any changes in the parents’ relationship (separation or remarrying) unless there is a Court Order specifying such responsibility. Parental responsibility under sections 61B and 61DB of the Family Law Act; consists of all duties, powers, responsibilities and authority that parents have by law.

In instances whereby parents are unable to make a decision about arrangements, the court can make parenting orders. Alternatively, if they have reached an agreement the court can approve and make consent orders.

What can Parenting Orders cover?

  • who the child/children will live with
  • how much time the child/children will spend with each parent and with other people, such as grandparents
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