NSW Family Law - Can I Take the Kids with Me?

[TheJohnSmith1]

As an foreign national living in Australia, my understanding of the family law system is somewhat lacking, so I am hoping someone can assist.

My Australian partner has long struggled with an addiction to drugs which she kept back from me for the majority of our relationship - being she would use when I go to work. I have already lost one job because I had to continually go home as she was unable to care for our kids as she was high.

Recently, despite getting help she has slipped back into old habits which is gravely concerning for my kids given that she is responsible for them whilst I am out earning a living.

I want to relieve myself from this situation, but I cannot lose my kids. Having never worked in her life and addicted to drugs, I cannot have my kids brought up in that environment, it just isn't safe.

If I leave, can I take the kids with me given that she is not a fit mother? Would the courts grant an order for me to be able to take my kids back 'home'? At least there I can guarantee a roof over their heads in a safe environment around family that can support me.

Thanks in advance.

 

[AllForHer]

This is kind of a tricky situation.

In Australia, if you don't have any court orders in place, there are really no rules about what you can and can't do, meaning there's no legislation that provides a default position on parenting. So, when you ask if you can take the kids, the shortest answer is yes.

In response to that, the mother can file for parenting orders to get a court order in place that actually does put down some rules about who can do what, but until that happens, you're both free to act as you see fit.

Technically, relocating them overseas is the same deal, but it's a little more complex once the Court gets involved. If you simply leave with the kids, you might end up with Hague proceedings against you, which makes international abduction a crime, or if you actually pursue an order to allow the relocation first, the Court might decide that international relocation away from their mother isn't in their best interests.

Before anything can really be done at Court, you are required to attempt a family dispute resolution conference to try and negotiate an outcome between you without involving the Court. If you can't reach agreement, then you or she can file an initiating application with the Court for parenting orders.

If you do end up at Court, the Court will make orders that it determines to be in the best interests of the children. In most cases, it's deemed to be in the best interests of children to retain a meaningful relationship with both parents - as in, not just a token phone call relationship, but one in which the children benefit from the involvement of both parents in their daily lives.

If your kids are young, it's unlikely the Court will allow an international relocation because it's going to make it impossible for them to maintain a meaningful relationship with their mother back in Australia. The mother's drug use simply isn't enough to demonstrate that she should be ousted entirely from their lives, and to the contrary, the Court would be more inclined to take a proactive approach to addressing that particular challenge so the children can still spend time with her but without the risk.

For example, it might order the mother's time with the children be supervised, or it might order an injunction on drug consumption before and while the children are in her care, or it might make her time with them conditional upon her returning clean random drug screenings.

For now, though, I would suggest talking to a doctor about how you can help the mother, rather than potentially escalate the problems she's experiencing by removing the kids unilaterally from her care and taking them overseas.

 

[sammy01]

How old are the kids?