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QLD Wife Threatening to Move Overseas - Custody of Children?

Discussion in 'Family Law Forum' started by hardworkingdad, 23 August 2015.

  1. hardworkingdad

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    My wife of 6 years and I recently had a child together and he is 4 wks old. She is originally from the Philippines, but has permanent residency here in Australia. She has been threatening to leave me for over 2 yrs but now says she wants to leave and take our child back to the Philippines and deny me all custody.

    Is this legal under family law? And do I have have any rights or chances of obtaining sole custody in such a situation?
     
  2. beanie

    beanie Well-Known Member

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    Hi hardworking dad,

    Sorry to learn about your situation.
    In my best knowledge, your wife has every right to do whatever with herself, she can move back to her country tomorrow and the court/police would not care.

    However, where the child goes is an entirely different story. Given the child is born in Australia of an Australian citizen and if the child is an Australian citizen (can you please confirm if you are a citizen as your child- remember citizenship in Australia is not always a birth right), where the child lives is dependent on the decision of both parents, and in the case when the parents have split up (divorced, seperated or simply broken up) then it is the decision of the family court.

    How the family court decides on custody is wholly merit based- best interest of the children. If you want full custody, it is very extreme and you'd have to prove that the mother is utterly unfit e.g. she's a drug addict. Say if the court gives you 50-50%, or even say, you 2 days a week, she gets 5 days, both of you are required by law to stick to the parenting order or can be penalised for opposing a court order. The child cannot go interstate, let alone overseas even for a holiday without permission of both parents. If one parent unreasonably oppose, the other can take he/her to court.

    Worst case is, she takes the child without permission back to Philippines, it will be considered criminal kidnapping. AFP may try and extradite her or have her arrested the moment she returns to Australia soil. I have known of a parent who took the kids to a country with no extradition treaty. I didn't know that couple well but the one left behind was devastated.

    Hope I hadn't alarm you. Best thing for you to do is try and negotiate calmly with her. Going to court is last resort and costly and don't expect that it can be sort out in weeks or even months. If you had to go down that path, talk to a family lawyer asap.

    Good luck and stay calm. Don't forget to rejoice the fact that you are a daddy!!!
     
  3. Tim W

    Tim W Lawyer

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    Most of the time, both parents have to consent to a passport for a child.
    You want to keep your child in Australia - don't co-sign the application form.
    This may be helpful: Passports - Parental Consent
     
    AllForHer likes this.
  4. AllForHer

    AllForHer Well-Known Member

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    Agree with the above - don't sign the passport application. That is your best method of ensuring the child cannot leave the country.
     
  5. hardworkingdad

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    Thanks everyone for the replies. Yes I have read that it will require both parents signature for his passport application, and yes I am an Australian citizen born and bred.
    My biggest fear is that special circumstances can allow a passport to be given without my approval and the fact that the birth mother will be residing overseas could well be that special circumstances if she applied for it. So while it can't happen in the immediate future, it may well happen if she decided to start the ball rolling and I will lose any shared custody if she does reside overseas. I hope it doesn't come to that. And yes, she is a great mother so I can't apply for sole custody by saying otherwise.
     
  6. Mollis

    Mollis Active Member

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    Hi....

    Do not take any chances at all. I hid the children's passports when my wife threatened to just take the children and leave the country. Unfortunately a year later she had lulled me into a false sense of security and made an elaborate ruse that saw me provide them to her only for her to abduct them and leave the country.

    I was lucky as the country she took them to was a signatory to the Hague Convention but it still took me five months of sheer hell to have them returned and I would not wish that pain on anyone.

    If she was to somehow fake a signature and get the passports (it does happen) she could be gone whilst you're left wondering what happened. Contact the Australian Federal Police and look into having your child added to the Federal Watch List which would make it near impossible for her to leave the country with the child.

    I was staggered by the number of parental abduction cases that take place each in year in Australia. Don't take any chances

    Good luck....
     

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