NSW Father Wants Custody of Children - How to Protect Child?

[Eken]

Brief history... I became 'accidentally' pregnant to a friend/flatmate...we were never in a 'relationship'. We lived together for about 9 months. Throughout this time there were incidences of violence/abuse (physical, sexual, emotional, financial). There were several violent outbursts from him where he would destroy property. One such time he completely destroyed the property we were in, he physically assaulted me, locked us both in my room not allowing me to leave. I did manage to get out and went to the police but was too scared to even have them come to the property.

I was 'stuck' not knowing who to go to for help, thus alienating myself from EVERYONE. Intimidation, fear and threats continue to this day. I only once applied for an AVO after he 'allegedly' assaulted me when I was 25 weeks pregnant out of fear (he threatened that if I went ahead the unborn child would be taken from me) and begging from his mother I did not go ahead (I was at the court and everything, but too scared to proceed).

The child is now 9 years old.

After child's birth, through fear, being stuck, I remained 'friends' with him. I'd stupidly been conned into taking out a car loan under my name for him, to break the friendship would've meant my being liable for payments which I could not afford...I had no one else, didn't want to be alone, I was being threatened.

At around 3 years of age, his paternity was proven via a DNA testing. Again, through fear and threats of child being taken from me, I allowed him to see child. I would drive to his mothers house, I would be there during these times although they were few.

Again, through fear and intimidation, I allowed him to have child overnight on a few occasions. These I stopped for fear I'd not get child back or that child was not being cared for properly.

He moved interstate which provided a welcome break but he would demand to see child when he returned. Again, I allowed this...only a few times. First few times his mother drove then he turned up without mother, driving. He is an epileptic (he will deny this) and self medicates (he will deny this). I know he would not have disclosed this information when applying for a drivers licence which he had 'lost' for reasons I do not know....for all the time I lived with him, he didn't have a licence yet drove, using stolen number plates (which I reported to police who did nothing as they had to catch him actually driving to do anything).

Anyway, I specifically asked that he not drive due to his epilepsy, I was concerned for the safety of my child which is and always has been my main concern in regards to him. He agreed, had someone else drive on pick up but on drop off, he was driving. From this point on I told him that he was no longer allowed to see child as he'd willingly endangered them in my eyes.

That was almost 5 years ago. There has been almost no contact from him, a few text messages.

He now has a girlfriend, and is suddenly interested in access to child. This seems to be a pattern, only interested in being a 'father' when there is a new girlfriend I assume. He has now gone to Family Relationships Australia. He is demanding custody of children, he says he's guaranteed joint custody. His girlfriend has contacted my workplace pretending to be a lawyer demanding from staff to speak to me in regards to a legal matter, she has also texted me in regards to this also.

Again, due to threats, I have never applied for child support. He has never paid any, never offered, never made any contribution of any sort in regards to parenting. Over the years I have made calls to them to initiate collection and have started online applications, but through fear and what he threatens me with I never go ahead.

I feel now that I am going to be forced to hand over my child to a stranger/s should this go to court as I am now being forced to go through mediation with him.

I have told my child that he wants to see them, and asked how they feel about this.

My child has indicated they do not want to see him and do not consider him as their father. Child has indicated they're afraid they'll never come back if they have to go.

Again, I'm very afraid at what the future may hold in this matter, that my child will be forced to go with people they do not know, that in allowing this to happen I am breaking their trust in caring and protecting them from harm.

I'm tired of being threatened by this person, it's a long and ridiculous story and I feel so ashamed for having allowed myself to become trapped by such a person, I am especially ashamed that I have brought a child into the world who will undoubtedly suffer.

I understand that Family Law and Courts state that biological parents are required to shared responsibility for a child until they're 18....where do I stand on this matter and what are my child's rights in regards to this matter? My child is my priority and in the end I have to deal with what he's put me through on my own but my child's safety, happiness and protection are ultimate in this situation.

He is not named on the birth certificate and this I wish to not take place.

 

[AllForHer]

What I'm about to write is not going to be what you want to hear, and I apologise for that in advance, but I think there are a lot of parents who enter the family law system with an unrealistic expectation about how the system works and what the court is concerned with.

The first thing I'm going to address is your question about 'What are my child's rights in this matter'.

In family law, it is only your child who has any legal rights, not you or the father, and this is entrenched in legislation under s 60B of the Family Law Act 1975. Specifically, your child's legal right is to know, spend time and communicate with both parents on a regular basis, regardless of the status of the relationship between his/her parents. The court is only interested in two things: upholding your child's legal rights, and ensuring their best interests are met. It is not concerned with the relationship between you and the father unless the child has been directly affected by it.

The next point I want to make is that both you and the father have equal shared parental responsibility for the child's care, welfare and development. This is a presumption under the Family Law Act 1975, which means it is what it is and it cannot be changed except by order of the court. Neither you, nor the father, have any legal grounds to determine unilaterally whether the child should or shouldn't be 'allowed' to spend time and have a relationship with the other parent. You both have an equal say about the child's care arrangements, regardless of who is the primary carer.

To put this in perspective, you've talked a couple of times about 'allowing' the child to spend time with her dad and how you only did so because you were scared, but the court won't sympathise with your fear of the other parent. It will interpret that as you putting your own feelings and needs ahead of the child's and unilaterally overruling the child's rights and refusing to recognise the importance of the child being emotionally supported in exercising those rights.

In regards to putting your own needs first, I also want to point out that you haven't voiced any actual concern about the child's safety when with her father. You've voiced concern she won't be returned to you, and that's not being properly cared for, but that's really it, and both of those are about your feelings and needs, not the child's.

Telling the father he can't drive when the child is in your care falls roughly into the same category, and the court won't agree that you were acting in the child's best interests when you severed contact for five years because the father was driving. Deciding that of your own accord is basically saying to the court that you think you're the superior parent, that you know better than him about what's best for the child, but the court will be asking how true that could be when it seems you are unable to recognise the emotional damage you may cause your child by refusing to let her see her father.

To drive home the point I'm trying to make about supporting the child's relationship with her father, I note that it was only under threat from the father that you facilitated the child spending with her father at all. Does that mean that had he simply gone away and not made threats, you wouldn't have facilitated that time at all?

I understand this is harsh, and it's likely to cause some distress, but I truly want you to have a realistic idea about what the court is concerned with. Family court is harsh, and the judges are not sympathetic people - they won't assume the father is a bad father simply because he treated you poorly. While it is of course deeply saddening that you have been involved in a domestic violence situation, you have said those acts were against you, not your daughter, and as such, the court will be unlikely to give them weight of the magnitude you may think suitable.

To attain orders whereby the father spends no time with the child, you will need to show that it's not in the child's best interests to do so, which will require significant volumes of proof that he poses an unacceptable risk of harm to the child. It's an extremely, extremely rare order to have made by the court, and takes a very, very long time to attain.

My suggestion is to get legal advice, though, and attend family dispute resolution. You don't have to, of course, but it will not please the court and you will likely be ordered to attend family dispute resolution anyway. If you or the father decide to pursue parenting orders through the court following family dispute resolution, the court would make only make orders it deems to be in the best interests of the child, and the considerations the court uses are outlined in s 60CC of the Family Law Act 1975. The primary consideration is the benefit to the child of having a relationship with both parents, and the need to protect the child from harm (which rarely means exiling a parent from a child's life, but instead usually means something like supervised care arrangements, drug tests, etc.). There are also many secondary considerations, so I suggest having a read of S 60CC to get an idea of what the court would use to determine what care arrangements would be best for your daughter.

Again, sorry if this isn't what you want to hear. Court is not fun, so it's best to go in knowing what to expect, or to avoid it all together.

 

[Eken]

Thanks and I completely accept your response, I've read it as part of other responses given. I have no problem with my child knowing who their father is and having a relationship with them. Again, I feel this was missed, but my priority is my child, that they're loved, happy, supported, respected, protected and so on. Mediation will take place as part of FDR, it is here that we will have to come to some agreement in regards to a parenting plan. What I would like to be directed to are examples of parenting plans which involve children who have had little contact from a parent (you've quickly assumed that I've shut the other parent out which is not the case)....My child being 9....how are their best interests determined and are they permitted any say in arrangements? I want the best outcome for my child, I don't want this to be traumatic or confusing for them. My priority is to participate in creating a parenting plan that is in their best interests and that they feel safe.

 

[AllForHer]

The way the court often sees it is that if you're not actively encouraging the child to have a relationship with the other parent, you're passively discouraging it, and that's indicated by saying things like "I am open to the child knowing her dad" and "I haven't shut the father out" while at the same time severing contact for five years and risking emotional damage to the child because in your personal opinion, the father shouldn't be allowed to drive.

Remember that actions speak louder than words. Simply saying you're "okay with the child knowing who her father is" isn't enough, and it sounds like the father has tried to be involved in the child's life and you've obstructed him from doing so. More concerning is that you don't seem to see it this way or recognise that you're in any way responsible for your child not currently having a relationship with her dad. For example, you've insinuated that your daughter has developed an opinion completely of her own accord that she doesn't want to see her dad. She was four when she last saw him, so how else could she have developed that opinion? I'm sure I don't need to highlight that any 'opinion' a four-year-old has is the direct reflection of an opinion that a close adult has - also a form of passive discouragement.

I'm sorry if this makes you angry or if you still disagree, but I'm telling it like it is in the regular view of the court, and I would be more than happy to point you to cases where what I'm telling you is reflected in the judge's decision. Social support from friends, family and single parent groups might have told you that you're doing the right thing, but the family law system doesn't sympathise with parents who use their own opinions to determine whether a child should have a relationship with the other parent. I'm not saying the court would order one way or another because that can't be predicted, but I am telling you the father has a case if you don't reconsider your position.

A good parenting plan - where the parents recognise each other as equally important to the child - is 50/50. However, in circumstances where that's not the case and where the child has suffered because of that, the court will often order a gradual increase of time between parent and child to rebuild the relationship. For example, it may be two nights on alternate weekends and an evening meal each week, increasing gradually to three nights on alternate weekends and one overnight each week, as well as half school holidays. Special occasions should be included regardless, such as Father's Day, Mother's Day, birthdays, Easter and Christmas.

I also suggest including as part of your parenting plan a requirement that both parties attend a post-separation parenting course to help you and the father learn to communicate better for the child's sake.