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NSW Custody of Children - Can Father Get Kids if There's Neglect?

Discussion in 'Family Law Forum' started by SeanRed, 21 March 2015.

  1. SeanRed

    SeanRed Member

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    I am currently living with my wife of four years ([Moderator redacted]) and we have two young children together ("I" and "E"). I am employed in the Army and my wife is a stay at home mother. Due to the unique requirements of my job, I have had to move away from my two older children (“C” and “B”) with whom are residing in Sydney with their mother ([K]) and her boyfriend (J) in Sydney. I currently live in Brisbane.

    It has been hard for me as a father to hear of my children not being cared for properly over the past six years or so. I have seen a lawyer in the past and the lady stated that I was going to be fighting an uphill battle and would lose a lot of money to not win, due to a lacking of physical evidence.

    My ex has been very smart in the way she has done things by not reporting incidences to the Hospital or her Doctor. An example of this is, My ex and kids were at my ex's cousins two story home, “B” was playing near a window and was pushed out of the window by her cousin's son where if it wasn't for the awning breaking her fall she could have died.

    Background into my Ex and I. I was with her for quite a few years and in that time I got to know her family very well and also the people that they conduct their lives around. They are drug dealers and are well known with the police living their lives with no rules or boundaries.

    [K] is currently living in a garage at her boyfriends mothers house with "J", “C”, “B” and her three younger children as they got kicked out of their last home and are blacklisted from renting houses as they left their last house trashed.

    I am living in a four bedroom home and all I have to do is show proof that I have “C” and “B” in my care and I will receive a larger house at no extra cost.

    Facts relating to my question are
    1. “C” and “B” visited us in Brisbane just after New years eve this year for approximately two weeks.

    2. “C” had a skin condition on her to top of head approximately the size of a golf ball which was scaly to touch and made her hair fall out in that region.

    3. I asked [K] what it was and she said that she took “C” to the Dr about it but the Dr did't know what it was and told her to see a specialist and that she was going to take her to one when the girls went back home. I then informed [K] that I would take “C” to a Dr here to get a second opinion.

    Our Dr then immediately took a sample of the skin tissue for analysis and we got the results back the next day. The result was tinea capitis which is ringworm of the scalp and is easily treatable however highly contagious. I will let you look into possibly why this has happened however most of the causes are due to a lack of hygiene. As soon as we new this we started treatment instantly. About five days before they left to go home.

    4. Within that 5 days we noticed a very small rash on “B”'s head and we informed [K] of this and that the mark was likely the same condition as “C”. [K] acknowledged this, we gave the treatment to [K], [K] then stated that she would apply the cream as directed. Applying the cream correctly should see the condition all but gone within eight weeks.

    5. It has been close to ten weeks now since I left the girls in her care. I have just found out that “C”s condition is no better and “B” now has missing hair on her head approximately the size of a tennis ball. My wife is down in Sydney currently and will be taking the kids to the Dr to get some advice on why the kids skin is the way it is. This is not only a condition that is effecting their skin and hair but also children at school are not nice regarding these matters and could scar the kids mentally as well.

    So my question is:
    In the current situation, If i get a letter from the Dr stating that [K] has medically neglected my kids, Do I have authority to seize custody of my children from her and if not, what do I have to do to get custody because this is very sad for my kids and they should never have been in this position?
     
  2. AllForHer

    AllForHer Well-Known Member

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    Mod, please remove names from this post. :/
     
  3. SeanRed

    SeanRed Member

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    I have been looking at the page and can't work out how to delete the post or edit it
     
  4. lawanswers

    lawanswers Moderator
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  5. AllForHer

    AllForHer Well-Known Member

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    Thank you to the Mod for fixing this one up. :)

    First thing's first, do you currently have orders regarding care arrangements for your two eldest children?
     
  6. SeanRed

    SeanRed Member

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    Thank you for fixing that up.

    No, I don't think there is, not through the courts anyway. There was one through mediation though. When we signed the paperwork we were told it isn't legally binding. That was 6 years ago
     
  7. AllForHer

    AllForHer Well-Known Member

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    Ah, so a parenting plan.

    It's not advisable to depart from a parenting plan unilaterally (e.g. without agreement from the other party), but it is correct that they are not legally binding, so when you say 'Can I retain the children', the answer is yes, but the mother would also be able to pursue a recovery order and it would likely be successful because of the parenting plan.

    Your frustration is well-placed - nobody likes to see their kids health issues overlooked, especially not by the other parent - but I'm afraid the legal advice you received previously may remain correct in that you would be facing an uphill battle to attain residency of the kids on the grounds that you've provided above.

    The court would place weight on the fact that the mother took the children to the doctor to have the ringworm addressed, and while ringworm tends to thrive in unhygienic conditions, it is, as you said, also very contagious, so it's just as likely they got it from one of the kids at school, rather than unhygienic living conditions.

    Basically, what I'm saying is that it takes more than treatable ringworm to convince a court that it's in the children's best interests to be uprooted from their current routine, home and lifestyle and relocated to another state to live with the other parent, after six years of a parenting plan that must have in some way worked throughout its duration.

    I know that's not what you want to hear, but as the previous lawyer said, it would be a terrible waste of money and an immense emotional strain on you and your family to commence proceedings with a low likelihood of success. :(

    There are some options that you might want to pursue, however, including contacting the Department of Human Services if you feel the children are being neglected. You should also bring the mother back to mediation so you can discuss the problems with her directly in an environment that tends to be more controlled because a third party is overseeing it. Even if it's a matter of 'Please start addressing the children's ringworm or I will retain them in my care until it is treated', it might have the influence it needs to get the children's condition treated properly.

    I'm sorry that I can't be more hopeful, but I hope this at least provides some help for you, anyway.
     
  8. SeanRed

    SeanRed Member

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    Thank you for the advice. Just one more thing, if I was to arrange through work to move to Sydney would I get 50/50 custody of they children
     
  9. AllForHer

    AllForHer Well-Known Member

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    Well, as always, orders the court might make can be unpredictable, but there's a pathway they follow under the Family Law Act.

    There is a presumption that both parents have parental responsibility for their children, and as such, parental responsibility cannot be removed from a parent unless ordered by the court. It's very difficult to rebut the presumption, so you have that in your favour.

    If an order for shared parental responsibility is to be made (which, because of the presumption, it almost always is), the court must consider if it's in the children's best interests to order equal care arrangements, e.g. 50/50. Basically, you would need to show that it's in their best interests according to section 60CC of the Family Law Act, to live with each of you in a 50/50 arrangement, and that it's reasonably practicable (no issues of distance, manageable conflict, parents equipped to facilitate arrangements, etc.).

    If the court decides 50/50 isn't in the children's best interests, it will then consider substantial and significant time, which is a mix of weekdays, weekends, holidays and special occasions, including Christmas, birthdays, Easter and Father's Day. Alternate weekends isn't often ordered anymore, it's more common for courts to order one overnight a week, alternate weekends and half holidays, if 50/50 is unsuitable.

    Hope this helps!
     

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