kittiecat

Hello,
I read this site non-stop when I was planning our move to Melbourne and waiting for the visa to finally arrive. The information I gained from here was invaluable.
Sadly I returned to Scotland with my 2 children whilst their father chose to make Melbourne his home.
My question is, whilst I know that my ex-partner (we were not married) has NO parental responsibility for my nearly 7yr old son born here in Scotland (myself & ex are british) I am unclear as to whether or not he has parental responsibility for our 2yr old daughter.
She was born in Melbourne with us on a permanent residency visa.
Is anyone able to offer advice on whether Australian law applies to her or if it will be the law of the land where she now lives and has done so for most of her life.
I have been thinking of contacting a solicitor in Melbourne so if anyone knows of one who deals with this international aspects I would be grateful, I have no idea where to start looking for this answer, the internet is not providing any clear answers and neither of the solicitors I am using in Scotland re other matters of the seperation will deal with this question.

Thank you

Deancm_MKII

Australia has no jurisdiction in Scotland.

James516

Sounds like a Hague convention case to me - your 2yo was ordinarily resident in Australia before you removed her (as indeed was your 7yo). I suggest you talk to a good family solicitor in Melbourne, and also one in Scotland.

Did your ex consent to you taking the kids back to Scotland? If not, you may be in real trouble.

JAJ

A lot may also depend on when you left Melbourne. Recently? Or 2 years ago?

kittiecat

Hi James thank you for your answer. My ex returned to Scotland with us and then left again to return to the oz, so the kids returned to the uk with both of us. I want to know if he has parental responsibility as I now with my children am looking at moving abroad in Europe and despite him appearing to have dropped off the face of the earth in I believe Melbourne I need to know if my daughter is subject to Australian or Scottish law. Under Scottish law I am free to move my son.

kittiecat

Hi Jaj, we left June 2009 when she was 5 months old. From what I have read and understand she is subject to Scottish law, but its all so confusing as all the terms are different and I cant find examples of cross border cases. Think I am going to have to try pot luck and pick then called a solicitor in oz to find the answer. I am just trying to prepare myself for yet another long legal battle with my ex-partner, why he could just not communicate to tie up all the aspects of the relationship is beyond me!

kittiecat

Hi Deancm, thank you for your answer. I think she is only subject to Scottish law but was alittle confused with her being born in oz on our perm. visa.

Deancm_MKII

She is subject to Scottish law because she is in Scotland. You are subject to the laws of the land that you are currently in. Your daughter's nationality or where she is born has nothing to do with it.

Australian laws are not recognised in Scotland and vice versa.

kittiecat

Thank you for the answer, this is what I understood it to be but was slightly unsure, it was a bit beyond my understanding. He does have parental responsibility for my 2yr old, she was born after the new legislation came out in Scotland for unmarried fathers.

Guess its off to court then to ask his permission to move her out of the uk - very strange since he has vanished into thin air in Australia and he is not here to object to her moving abroad. Fingers crossed he can be located with his passport/ tax/ medicare/ centrelink numbers that I have for him.

JAJ

So what exactly are you trying to do? Move to Australia? Go somewhere else?

If you have lost contact you should be seeking legal advice - you may not need to contact him and it might be a bad idea to do so.

kar-kier

If he is on the child's birth certificate, then you still have to have his permission to take the child out the country!

I had this with my ex. We moved here 2 years ago, and even though my eldest had not had ANY contact with his father in over 5 years, because his name was on the birth certificate, he had to give his permission for me to bring him to Australia - we were not married, and lived in Scotland!

If you cannot find him/ get hold of him, you should be able to get a court of put this forward! In saying all that, you can move freely in the EU (i think) therefore you would not need his permission for either one!

JAJ

Not unless the child was born after the relevant cut-off date of 1 December 2003 (England and Wales), or the equivalent dates in Scotland and Northern Ireland.

Or if parental responsibility was awarded by a court, or agreement.

kar-kier

My son was born in 1998, and Australian immigration demanded that he sign certain forms and a copy of his passport.

laven

To immigrate to Australia with children you do need your ex' permission. Its in checklist.

FayRoberts

The father has parental responsibility, WITH or WITHOUT being on the birth certificate. I have been in "red Tape Land" over this and have first hand experience. My ex is not only NOT on the birth certificates of my children... he is now DEAD. However, the Australian government has undertaken to find him, and denied me passports to take them on holiday without the father's consent! As far as LAWS go - you are under Scottish Law and no Australian Law will matter. again, you question needs to clarify what exactly you are wanting to know. He DOES have parental responsibility in the eyes of Australia, that is for certain, so applying for an Australian Passport will be denied without his consent.