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Please help - could ex-DH take DD to Australia?

(12 Posts)
DaySleeper Wed 10-Jun-09 18:33:43

I would really appreciate some advice if there are any family lawyers around. I started another thread here and am thinking about leaving DH.

We have been married 4 years and have DD, 7.5 months. We are Australian but have lived here 8 years. DD was born here and has Australian and UK passports (as do DH and I).

I am terrified that if I leave DH I would not get custody of DD. I just don't know how these things are worked out. I am the primary caregiver. I work full time now (we have a nanny) but I do everything for DD when I'm not at work. I am financially independent and have a very stable job, earning 4-5 times what DH does. I think he may have some psychological issues as per other thread. How do courts decide custody?

I'm also very worried DH would try to take DD to Australia, either illicitly or using the courts- saying she should be in Australia because that's her "home country" and all our family are there. Is that possible/likely? I don't want to leave the UK. We are settled here and I am part owner of a business here. DH hates living here and his job is not looking good so it wouldn't surprise me if he wanted to go back to Australia.

Any advice would be hugely appreciated. Thank you.

controlfreakythecontrolfreak Wed 10-Jun-09 18:58:32

in short terms....

you and dh both have parental responsibility for dd, decision making power in respect of her... if you split up you will need to agree about where dd lives (who has "residence" and what "contact" she has with the other parent (shared residence is also a possibility). if you cant agree then a court will have to decide these issues on the application of one / both of you. if dh wants to take dd to live in australia he will need either your agreement or the court's permission to remove her permanently from the uk...

in reaching all those decisions the court will take your dd's welfare as its paramount consideration.

i would suggest you get some legal advice from a specialist family solicitor BEFORE you act.

as a general principle residence is likely to be granted to the primary caregiver, especially for such a young baby. That sounds like you. i think dh would have great difficulty showing why it would be in dd's interests to move to the other side of the world and never see her mum...

good luck.

CarGirl Wed 10-Jun-09 19:02:38

If your dd has a passport make sure you keep hold of it at all times, if she doesn't then get one and then keep hold of it at all times. That way he couldn't abscond with her as you can't get duplicate passports.

controlfreakythecontrolfreak Wed 10-Jun-09 19:05:41

i didnt think op was suggesting dh would abduct dd? if that is a real concern she can apply to the court for a prohibited steps order preventing dd's removal from the country / from her care (but would need evidence as to why this was necessary)

CarGirl Wed 10-Jun-09 19:07:21

"illicitly" was the word she used that made me think hanging onto the passport for the time being would be a good thing. He does sound a bit unpredictable from her other thread.

DaySleeper Wed 10-Jun-09 19:51:08

thanks very much CarGirl and controlfreaky. That's exactly what I needed. Re the "illicitly", I just wanted to know what the position would be if he took matters into his own hands. I suppose you never know how someone will react if a marriage ends. It's very good advice to see a specialist solicitor before doing anything. I'm a long way from leaving, it's just that recent events have focused my mind on some fairly major issues and I'm not sure how those are going to pan out for us.

Just one more question- I should have said that DH and I got married in Australia. Does that make any difference in terms of where divorce proceedings could be started? Would it have to be in Australia

thanks v much

CarGirl Wed 10-Jun-09 20:16:24

No idea, I'm sure if you google around you will find the info "divorce of an Australian marriage" or such like.

controlfreakythecontrolfreak Wed 10-Jun-09 20:54:30

if you are both habitually resident here (and in defined other circs too) the english courts will have divorce jurisdiction (the test is set out in a European treaty called Brussells II).

DaySleeper Wed 10-Jun-09 23:42:24

thanks again for this

babybarrister Sat 13-Jun-09 21:48:04

I would not worry too much about any absconding as UK and OZ both signed up to Hague Convention on Abduction on children and Oz very, very proactive in returning kids ....
agree with above advice - you can find specialist family solicitor through Resolution website [Resolution is new name for solicitors family lawyers association]

mumoverseas Sun 14-Jun-09 20:10:11

as usual, I agree with baby barrister

DaySleeper Wed 17-Jun-09 23:06:44

oops sorry I haven't checked this thread for a few days, thank you babybarrister and mumoverseas. I've now been to see a family solicitor and she was very reassuring on all of this. I feel much calmer about this aspect of things now. Plus I've hidden DD's passport

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