If you can afford it you should see a good lawyer as soon as possible as they will do all the necessary things that need to be done for a circumstance like this. And there are some things that need to be done immediately.
If you can’t afford a lawyer (go to a community law centre that has free lawyers and) here is a short list of the things you should do immediately and/or know about.
1) To answer your very important/relevant question; “Can a woman really steal a couple’s child like this and then prevent that child from seeing it’s father”. The answer to that question is (provided you haven’t committed any act of family violence and/or abuse) no she can’t legally do it – not without contravening the family law act, and here’s why . . . .
The Family Law Act (including sections [ 4AB; 3, 2(i) and 2(j) ] and [ 4(1); (c) and (d) ]) appears to define;
• *Family violence; as when a person prevents a family member from making or keeping connections with his/her family/friends and culture – or, unlawfully depriving the family member (or any member of the family member’s family) of his/her liberty.
• Abuse to a child; as causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or serious neglect of the child.
As such it is unclear to me how the mother’s aforementioned actions of taking the child away from you and preventing her from having a relationship with you don’t represent a risk to the child and/or fit the Family Law Act’s definitions for family violence and/or abuse.
This is because (as shown *above) when a person prevents a family member from making or keeping connections with his/her family/friends and culture (and/or, as in your case, father) – or, unlawfully depriving the family member (or any member of the family member’s family) of his/her liberty; the family law act considers it to be family violence.
2) Contact all yours and her friends and relatives and try to locate your daughter. Let them all know your daughter is missing and you seek to make lawful/normal contact with her. Do not speak of the mother in derogatory terms.
3) Use your lawyer to create a restraining injunction that prevents the child from being removed from Australia. If you can’t afford a lawyer talk to me and/or go to one of those free legal service centres and get them to draft up orders that prevents the child from being removed from Australia that you can use in court when requesting orders to made from the judge.
Here is an example of how one of those restraining injunction orders can be written . . . .
Until further order both parties, their servants and/or agents be and are hereby restrained by injunction from taking or sending or attempting to take or send the child [daughter’s name goes here] born [put birth date in here] from the Commonwealth of Australia. This order ceases to have effect 2 years after the date on which it is made. The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders.
This order prevents the mother from taking the child to India, and when you have your first appearance in court (yes you must go to court) you politely request that the honorable judge make such an order to prevent the child from being taken out of Australia. Don’t worry if it seems too much and/or too daunting/complicated as the courts and judges make these kinds of orders (and see women do what your wife has done to you and the child) all the time, day in, day out.
4) Obtain an initiating application and risk notice, fill them out (once again you may need the help of a private/community lawyer) to do this.
Here is the URL for the Federal Circuit Court initiating application.
Here is the URL for the Federal Circuit Court risk notice. The document has recently been revised by the courts.
Within the initiating action you will be given the opportunity to explain the short term (interim) and long terms (final) orders you are seeking. This is your opportunity to tell the court how you see your parenting/care arrangements working out within the context of the time spent with the child by each parent now you have separated. Once again you may need the help of a private/community lawyer to do this, but don’t underestimate its importance, as the court needs to know that – no matter what the dispute is between the parents – they both understand the child has a right to share equal time with both parents; which your wife currently is not doing.
5) Provide an affidavit
Here is the URL for the Federal Circuit Court affidavit.
With your initiating application and risk notice that explains the circumstances of the issue at hand you should also provide an affidavit. Once again you may need the help of a private/community lawyer to do this, but don’t underestimate its importance as the court needs to know that – you have the child’s best interests at heart and that no matter what the dispute is between the parents – you both understand the child has a right to share equal time with both parents.
This (the affidavit) is also your chance to tell the courts that the wife has effectively kidnapped the child and is preventing her from experiencing her natural rights to see her father. When you say this in the affidavit you can also objectively (not subjectively) state that such actions – of preventing the child from experiencing her natural rights to see and/or spend time with her father – appear to be in conflict of the Family Law Act, as sections of the family law act [including 4AB; 3, 2(i) and 2(j) ] and [ 4(1); (c) and (d) ] appear to explicitly define the act of the mother preventing the child from experiencing her natural rights to see her father as family violence.
Do not use the affidavit (or the initiating application or the risk notice) as a means to speak negatively of your wife. Always remain objective.
6) Go to your nearest JP and get all the necessary documents signed and witnessed once they’re completed.
7) File the initiating application, risk notice, and affidavit at your nearest Federal Circuit Court and wait for a court date.
8) This is a short list but I urge you to prepare the affidavit, the initiating application, and also the risk notice with as much haste as you can muster. As, the quicker you do that the quicker you get to file them at your nearest Federal Circuit Court in NSW, and that matters a lot because if she prepares all her similar documents and files them at a Federal Circuit Court in QLD before you then the (application for parenting orders) matter will be run from QLD, you will be the respondent and you may have to travel to QLD for each hearing and/or the trial. Whereas if you complete all your documents quickly and file them all at your NSW Federal Circuit Court then you’re the applicant and she is the one that must travel for hearings and/or the trial.
I think that’s it for now. If you have any other questions please don’t hesitate to ask.
Now please get to work on preparing/filing the initiating action, risk notice, and affidavit.