WA Time with Dad Interstate - No Family Court Orders in Place?

[sammy01]

you can't abduct your own kids.
The estranged parent here is only estranged because the other parent refuses to let the kids have a meaningful relationship with their dad.
Even with court orders a parent can withold and the courts are full of cases such as this - However, I'm pretty confident that in most of the cases is it is the primary carer refusing to provide acccess, not the non-primary carer witholding.

When there is no established history of a parent witholding I reckon it is dishonest to use the 'what if' excuse.

 

[Tim W]

you can't abduct your own kids.

Sure you can.
In NSW, if you take them from, or detain them away from,
the parent with parental responsbility (be that by order, or just on the facts),
then the offence of abduction is on the table.[/quote]

When there is no established history of a parent witholding I reckon it is dishonest to use the 'what if' excuse.

It's a fair enough concern for the custodial parent. Even if it can eventually be allayed by negotiation.

 

[sammy01]

shared parental responsibility is presumed by law
FAMILY LAW ACT 1975 - SECT 61DA Presumption of equal shared parental responsibility when making parenting orders
The phrase 'custodial parent' doesn't exist.

Most folks manage to organise parenting arrangements without court via a parenting plan.
When one parent refuses access because the have concerns that the other parent wont return the kids, they are witholding. Why can one parent withold kids on the ground that they fear the other parent would do the same?
Oh you're a lawyer, so you wanna make money out of this misery....

 

[Tim W]

shared parental responsibility is presumed by law
FAMILY LAW ACT 1975 - SECT 61DA Presumption of equal shared parental responsibility when making parenting orders

There are no orders in place in the present scenario.
In any event, that presumption doesn't create a right to take or detain the children,
in circumstances that would otherwise found the offence.

The phrase 'custodial parent' doesn't exist.

It is, however, a plain English term readily understood by those not familiar with the more formal lingo.

Most folks manage to organise parenting arrangements without court via a parenting plan.

Except when they don't, or can't, or when the agreement is not kept.

When one parent refuses access because the have concerns that the other parent wont return the kids, they are witholding.

Sometimes, perhaps mostly, they believe they are being a prudent parent.

Why can one parent withold kids on the ground that they fear the other parent would do the same?

Perhaps because one is concerned directly with the well being of the child,
and the other is trying to exercise property rights?

Oh you're a lawyer, so you wanna make money out of this misery....

<ignores>

 

[GlassHalfFull]

Tim W - "it's your responsibility to ensure that they are not abducted by their estranged parent". Sure. But how do you interpret that responsibility in the real world? Because the best way to do that is to never allow your children to see the estranged parent, no matter how likely or unlikely it is that he would even dare attempt to abduct them.

In the real world, you have more than one responsibility to your children. Hundreds really. Preventing abduction is one, but so is allowing your children the ability to have a relationship with both parents, surely? The Family Law Act certainly thinks it's important. So in the absence of any demonstrable evidence that abduction is likely to happen (threats, previous actions etc), why would the former be more salient than the latter? I'm not saying the OP is right or wrong to worry - I don't know her ex - but I do know that many people's fears are unfounded. Fear should not be the driving factor in making sensible decisions about one's children and I'd have thought that a lawyer (family lawyer?) would have the perspective to realise that.

 

[sammy01]

So if I stop my kids from seeing their other parent - um arn't I abducting them? But it is ok when I do it right because I'm doing it to stop the other parent from abducting the kid?

Tim, one 'except', two 'perhaps' and one 'sometimes'. Not really rock solid advice.
Family law 101
Shared parental responsibility is a presumption that exists until a court orders differently.
The child has the right to have a meaningful relationship with both parents.

No if's buts or perhaps....

This is an old thread, so all hypothetical...

 

[Atticus]

Sure you can.
In NSW, if you take them from, or detain them away from,
the parent with parental responsbility (be that by order, or just on the facts),
then the offence of abduction is on the table.

Sadly, in the absence of any orders, if a parent withholds a child from it's other parent then no offence is committed.....

Even in contravention of orders, the term used in the court is withholding, not abduction....It's only accepted as a case of abduction if a person (child in this case) is removed, usually against their will & often forcefully not only away from a parent/s but away from their life as they have known it, as in the cases of international child abduction....

 

[sammy01]

Yep - Abduction can only happen IF a court has rescinded the concept of 'shared parental responsibility'