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NSW Family Court - Chances of Getting Sole Parental Care of Newborn?

Discussion in 'Family Law Forum' started by Vee, 23 May 2016.

  1. Vee

    Vee Well-Known Member

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    To be brief-

    Father is accusing Mother of being an unfit parent. Accuses her of having serious undiagnosed mental health issues, being a pathological liar, and being an unfit mother to her two young children (who he isn't the father of).

    Mother left Father's home with her two young children while pregnant (an approved private rental). She left because she was afraid for her and her children's safety. She has concerns he has schizophrenia. Weeks later, she had the baby, didn't tell him. He found out and began harassing her (as well as his family). She asked for time. He served her with family court papers filled with malicious lies and requesting 100% custody of the baby.

    What are his chances? What can the mother do?
     
  2. AllForHer

    AllForHer Well-Known Member

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    Right now, while the baby is breastfeeding? Probably fairly small.

    But if the mother continues to try and oust the father from the child's life for the duration of proceedings? I would say it's very, very possible.

    Kids have a legal right to know, spend time and communicate with both parents on a regular basis, regardless of whether the parents are together or not. Unlike society, the Court doesn't just accept a mother's word that a father is dangerous, and even if it did, it would go out of its way to uphold that child's legal rights to have a relationship with the father by finding other ways to minimise the risk without severing the child's relationship with the father all together.

    If the mother wants to minimise the risk of losing custody, she will try and co-parent with the father and support and encourage the child in having a relationship with the father. At first mention, request the parents attend mediation and a post-separation parenting course, and try and negotiate an agreement whereby the father spends regular time with the child.
     
  3. Vee

    Vee Well-Known Member

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    How do judges view things where one party is saying the other is "unfit" and has mental health issues?
    Would they investigate it before coming to any decision?
     
  4. Vee

    Vee Well-Known Member

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    A DNA test has also been requested.
     
  5. AllForHer

    AllForHer Well-Known Member

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    If a person writes in their affidavit 'I am concerned the mother is suffering an undiagnosed mental illness' and produces no further evidence to indicate what might have caused this concern, the Court isn't going to give it much weight.

    If the affidavit states the above, and provides lengthy examples of incidents which have caused this concern, then it will be given a bit more weight.

    If the affidavit states the above, and provides examples, and includes a police report supporting those examples or a report from DHS or an AVO, then the Court might need to act in order to protect the kids.

    Basically, it comes down to how credible each of the parties are in their allegations.

    Note, however, that evidence in a matter is not tested until the final hearing, so while proceedings are under way and interim orders are being considered, the Court has to exercise caution about taking drastic measures in interim hearings, based on evidence provided by a witness that hasn't been subjected to cross-examination.

    So, in short, the Court will likely make a decision for interim orders that involve the father at least spending time with the child on a regular basis, but at this juncture, it's unlikely the Court will give such weight to the allegation of mental illness of the mother that it would order the infant live with the father. I'm not saying that's off the table completely, I'm just doubtful the Court make that order in the interim.
     

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