NSW Domestic Violence - Single Father's Right to See His Daughter?

Discussion in 'Family Law Forum' started by Evanj, 8 September 2017.

  1. Evanj

    Evanj Member

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    This may seem strange but I'm a male who has escaped a toxic relationship full of domestic violence. Over the years I have had a broken nose, black eyes, verbal abuse, etc.

    My partner fell pregnant and I stuck around because I was in love with my daughter from the day she was conceived. She is the absolute light of my life. I adore her.

    My ex is a compulsive liar and suffers from mental illness( I'm not sure if the latter brings the other on). I have stuck by her the whole step of the way through her counselling. But enough became enough. I left the relationship and she does not let me see my daughter. Leaving her was the hardest thing I could do.

    My partner was a narcissist. She put me in a situation where I became dependent on her and would find it hard to ever leave. She controlled everything so if I was to ever leave, I would have nothing such as the situation I am in now.

    I am told when the child is under two the father does not really get favoured much at all. I have zero idea about the process on which I'm meant to be taking nowhere to even begin.

    I love my daughter and just want her back.
     
  2. AllForHer

    AllForHer Well-Known Member

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    Not an uncommon situation, sadly.

    So, how old is the child?

    Are there any AVOs in place?

    How long since you separated?

    How far apart do you live?
     
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  3. Evanj

    Evanj Member

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    We have been separate a couple of weeks. There are no AVO's in place and we live within a 10km radius. Our daughter turns one next week. I doubt I'll be allowed to see her for her birthday.

    If I had it my way, I would be with her every day but I think her mother will do everything in her power to try and hurt me and by this I mean not let me see her.
     
  4. sammy01

    sammy01 Well-Known Member

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    Can I encourage you to post on Mensline. They have a forum like this one... you'll get some good moral support - there is also some phone counselling. Mate you can also go get some counselling for free. Ask your doctor.

    Look it is very difficult when we're talking about a very young child. When dealing with a person with mental health issues, you're also gonna have a hell of a lot of stupid manipulations...

    Other than Mensline, your first port of call should be Relationships Australia. They can organize mediation between you and her. It is free or very cheap depending on your income.
     
  5. Migz

    Migz Well-Known Member

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    Here's how it works;

    1. Contact Relationships Australia in your township or nearest town.

    2.Tell them you would like to carry out Mediation in the hope of working out a "Parenting Plan" with your ex. Hand over all of their details as well.

    3. Carry out mediation and make sure you are issued with a Certificate 60i. Even if mediation fails, get this certificate issued to you.

    4. Even if you were or weren't successful in carrying out mediation...next step is Family Circuit Court to turn the parenting plan into court orders.

    5. Go to the federal circuit court website, download an "Initiating application ( family law ) " fill it in.

    6. Prepare your Affidavit, your Annexures, and your "Notice of Risk". I would advise you see a family lawyer at this point for an hour or two just to get some help. Cost $200 to $600.

    7. Get it signed by a JP.

    8. File it with the Family Circuit Court you can do this online as well it will cost a few hundred dollars. But cheaper than a Barrister.

    9. When the documents are stamped by the Family Circuit Court and you are given your court date. Then print them all out.

    10. You have to "serve" them on your ex. You will have to use an outside firm to do this you cannot do it yourself. Approx $150.

    11. Wait for your court date.

    Hope this helps and keeps the costs down.

    Get ready for a long and drawn out process...and thousands of hours away from your kids, not by your own choice.

    Cheers
     
  6. AllForHer

    AllForHer Well-Known Member

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    All of the above is the correct pathway for getting time with your daughter, but there are some things you should understand to help with your decision making.

    First, there are no rules or rights pertaining to parenting while ever there are no Court orders in place, so you and mum can do whatever you want for now. The way to resolve that problem of there being no rules is to get parenting orders in place as soon as possible. Refer to the post above on how to get that process rolling.

    Second, if you and mum can't cooperate or agree on anything, and you do end up asking the Court to intervene, it will follow the Family Law Act in order to make its decision.

    This is to your benefit for a number of reasons.

    The Family Law Act says children have a right to know, spend time and communicate with both parents on a regular basis insofar as their best interests are met and regardless of whether their parents are married, separated, or any other denomination of a relationship status.

    That's the first thing you need to understand: your daughter has a right to a relationship with you. You don't have any rights, per se, but she does.

    The Family Law Act also says that the children's best interests are paramount in all matters heard by the Court. Section 60CC of the Family Law Act provides the Court with the issues it must consider to determine what's in a child's best interests. The primary considerations are the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from harm caused by abuse, neglect or family violence. There are also about 12 other considerations, but I encourage you to Google section 60CC of the Family Law Act to read through them yourself.

    That's the second thing that goes in your favour. Except if you pose an unacceptable risk of harm to your daughter, then the Court will uphold that it's in her best interests to have a meaningful relationship with you.

    The Family Law Act also asserts that shared parental responsibility is presumed, meaning you and mum have equal say about the major long-term decisions affecting the child's life unless there's an order in place that takes parental responsibility away from one parent and allocates it solely to the other.

    That's a third point of benefit to you: you have equal say until the Court says otherwise.

    In respect of care arrangements for the child, where shared parental responsibility is not rebutted, the Court must first consider if equal time is best for the kids, and failing that, if substantial and significant time is best. Substantial and significant time comprises a combination of weekdays, weekends, holidays and special occasions.

    So, unless you live a decent distance apart, the concept of making a dad into an every other weekend parent is pretty much dead in the water in Australia. However, given your daughter's age, this is where it gets tricky.

    Right now, an equal care arrangement is going to be inappropriate because the child is really too young, but the Court will still want the child to spend time with you, so you'd be most likely looking at an arrangement for substantial and significant time.

    Most psychologists agree that children of tender years should spend time less time more frequently with each parent, rather than longer periods more frequently, since they lack memory and can experience anxiety if separated from a parent for too long. So, you could probably aim for perhaps an overnight or two every couple of days with incremental increases in the child's time with you until it reaches five or more nights a fortnight (plus half holidays and special occasions).

    So, when you attend mediation with your ex, that's what you should propose as suitable care arrangements, because in the absence of risk, that's potentially what the Court will consider to be suitable care arrangements.

    If she agrees, excellent. If she doesn't, which is the more likely outcome, then file an initiating application with the Court.

    The law supports kids to have a relationship with both parents. Remember that, and don't do anything stupid to give her reason to seek an AVO. It complicates things in family law.
     
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  7. Jarrad1984

    Jarrad1984 Active Member

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    Hello,

    Can I get some more info from you, please? I do have avdo against me, charges & I don’t get to see our daughter at all...

    She is refusing to mediate and is causing me a lot of grief. Plus I’m broke after criminal lawyer case
     
  8. Rod

    Rod Well-Known Member

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    First thing is to start you own thread and ask your questions there.

    Knowing which State you are in helps and whether the criminal law matter involved your ex and or daughter.
     
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  9. Jarrad1984

    Jarrad1984 Active Member

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    Ok thanks rod. Nsw, but yes only jumped on this thread as I wanted the opinions of Allforher & migz
     
  10. Migz

    Migz Well-Known Member

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    Jarrad, a couple of questions, how far away do you live from the child? How old is the child? Now for the hard ball stuff, is the child listed on the DVO? Can you elaborate briefly as to what the charges were for? Along with the penalty applied from the magistrates court?

    If your ex is refusing to mediate, even via way of "shuttle" mediation then ask the place doing the mediation for the s60I certificate. Next is refer to what I wrote above. Ask any questions and we shall help where possible.
     
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