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Daughter to live with father after mother abducted her

NB This case was dealt with in the Federal Magistrates Court (not the Family Court, as reported below by Overington).

The case is Baier & Wagner [2009] FMCAfam 683 (3 July 2009)

FAMILY LAW Parenting mother unilaterally relocating to Melbourne with child now aged nineteen months father seeking an interim order for the return of the child to Darwin mother the child's primary carer mother saying that she will not return to Darwin if the child is ordered to return.

Click here to download a copy of the judgement

Daughter to live with father after mother abducted her and moved interstate

The Australian
9 July 2009

Mother must give daughter to father
By Caroline Overington

The Family Court has ordered a Melbourne mother to hand her 19-month-old daughter over to the child's father, after she left Darwin with the child without his permission.

The mother, who has always been the primary carer of the child, has been ordered to hand over the child "outside the front gate" of the grandmother's house in Melbourne today or face the consequences, which include a possible jail term.

Federal magistrate Janet Terry said shared-parenting laws introduced by the Howard government in 2006 required her to apply a presumption that it was in the best interests of the child that her parents had equal shared parental responsibility for her.

"This is a very sad case," Ms Terry said. "I am faced with the choice of making an order that a 19-month-old girl be separated from her mother in order to ensure that she has the opportunity to develop a relationship with her father."

She said the principles of the new Family Law Act "make it clear that children have a right to know and be cared for by both their parents".

Ms Terry said the mother had acted "high-handedly" in removing the child from Darwin without the father's permission, and had refused to return to Darwin while a final settlement was worked out by the courts.

That being the case, the child should be returned to Darwin "at a time nominated by the father by text message sent to the mother".

The mother will not see her daughter again until August, when a five-day visitation is scheduled.

The father plans to take the child back to Darwin, where she was born, pending the final custody hearing.

The mother is originally from Melbourne but moved to Darwin in 2006 to take up a teaching job.

She met the child's father shortly after she arrived. They lived together for about a year, and had a child in 2007. When the relationship ended in May, the woman returned to Melbourne, taking her daughter with her. The mother told the court she wanted to stay in Melbourne with the child until the final custody hearing.

She said she would not return to Darwin pending a full court hearing because she had no support, no friends or family in Darwin.

Ms Terry said the couple "did not have an easy relationship.

"On May 9, without the father's knowledge or consent, the mother flew to Melbourne with (the child). The father was distressed when he discovered what had happened.

"He informed the mother that if she did not return to Darwin, he would apply for an order (to have the child returned.)"

He wrote by email, saying: "I do not think you fully comprehend what this feels like. It hurts me to have her taken away."

The father told the court he'd vacate the marital home in Darwin so the mother could live there with the child while a settlement was worked out.

The court ruling acknowledges that the "mother has always been (the child's) primary carer.

"A separation from the mother will be hard in the short term. However, children are sometimes forced to adjust to changes of this nature, for example if a parent dies.

"I am concerned that unless the importance of the child's relationship with her father is made clear to the mother, the stage will be set for a long history of difficulties spending time with the father."

The mother will appeal.

The shared-parenting laws are being reviewed by the Australian Institute of Family Studies. The federal government is awaiting its report before deciding whether the law needs to be changed.

Mother defiant on custody after falling foul of parenting laws

The Australian
10 July 2009

Mother defiant on custody after falling foul of parenting laws
By Caroline Overington

A Melbourne mother defied a Family Court order to hand her toddler daughter to the child's father to live with him in Darwin.

The woman, who cannot be named, had been instructed to hand over the girl after the court heard she had taken the child from Darwin, where the child was born, without the father's permission and against his will, and moved back to her home city.

She said yesterday that she "simply couldn't" hand over the child, as ordered by the court.

The case is the latest in a series of decisions that suggest shared parenting laws, introduced by the Howard government in 2006, have made it difficult for women to relocate with their children after separation; and that women who interfere with a child's relationship with the father risk losing custody.

The law requires Family Court judges and federal magistrates hearing Family Court matters to apply the presumption that a child's best interests are served by having a relationship with both parents after separation.

Mothers are expected to encourage a relationship between children and their fathers, except in cases of violence.

Supporters say the law is working precisely as it should.

Critics say it is forcing breastfed babies into shared-care arrangements and ties women to their ex-partners, and their jobs, in areas where they never intended to live long-term.

The Shared Parenting Council of Australia said the court acted correctly because the mother had effectively "abducted" the child by "unilaterally moving her to Melbourne".

The court accepted that the mother had always been the primary carer of the child.

She took eight months' maternity leave when the girl was born, and now works two days a week. She and the father separated when the child was 15 months old.

Federal magistrate Janet Terry said the mother had acted "high-handedly" in leaving without the father's permission.

He was described in court documents as a devoted father. He offered to move out of the family home so the mother could live there with their daughter, while a full-time care plan was worked out. He told the court he was happy for the child to live with the mother in Darwin, provided he had regular access, and a meaningful role in her life.

The court heard the mother would not return to Darwin.

The mother said she was expecting the father to turn up at her home with the Australian Federal Police. But she said she had fled the house and was trying to organise an appeal.


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