NSW Family Law - Absent Father Now Wants Access to Son?

[purplemonkey]

Hi all,

I am after some help. I am booked in to see a solicitor next week to get some advice.

I have an 11-year-old son. We have never lived with his father. We had split up and then I found out I was pregnant. Long story short, he wanted an abortion, I said no. When my son was born, he saw him. I thought it was important for my son to get to know him so I used to take him to his father's house every weekend for 7- 8 years so he could see him. He came to my house probably 5 times in 8 years. When at his house he never really played with him just sat on computer playing games or music. I got sick of this and said no more.

Over the past 3 years, he has asked to see my son. I have never said no but have instead said that he can come to my house or we can meet at a park or McDonalds or something. He refused. Instead, he wanted to take him out without me. I wasn't comfortable with the idea. So he did not see him in 2.5 years except for one time last year he came to watch him play a game of soccer.

I also maintained a relationship with my son's grandparents, taking him to visit them, send photos, etc.

He is now wanting to see him and take him for visits overnight, etc. Due to incidents when my son was younger, he does not want to see his father and says that he does not like him. The father said if I don't cooperate, he will take me to mediation and then family court.

He is not listed on the birth certificate and he has never paid one cent in child support.

Where do I stand legally under Family Law? Does he have a right to come and demand to see him even though he has done nothing over the past 11 years? Is my son old enough to say that he wants nothing to do with him?

I am all for making a parenting plan and letting him see my son, but I know he will be difficult and push for family court order.

Any help is greatly appreciated.

 

[AllForHer]

If you're co-operative about making care arrangements for the father to spend time with the child, then there's no reason the parenting plan you agree to can't be made into consent orders, anyway.

My observation from a legal standpoint is that you've described the father as an absent father, but that's not exactly true if the father saw the child frequently for the first eight years of his life, and I note as well that it was you, not him, who said no more.

You haven't mentioned anything about the incidents that would cause the child to refuse time with his father, and I would opine that forcing all time between the father and child to be supervised by you would impose a strain, be it discrete or not, on the child's capacity to have a meaningful relationship with the father. I don't believe the court has ever ruled on a case whereby one parent was ordered to supervise a child's time with the other parent.

Further, facilitating the child's time with the father if and only if he meets your conditions is essentially the same as you saying no, especially if the father is eager to have a relationship with the child without it being governed by your presence. Present mothers don't make good fathers, they just make it harder for them to become good fathers.

Since you haven't really given any reasons to support a case for a supervised time other than you being uncomfortable with the idea, I would strongly suggest getting comfortable with the idea in order to avoid court proceedings. If you insist on supervising his time with the child, then he will undoubtedly get a better deal from the court, where it's more likely that unsupervised time will be ordered.

Remember: Children have a legal right under section 60B of the Family Law Act 1975 the have a relationship with both parents, regardless of the status of the relationship between said parents. You, as a parent, don't actually have any rights to your children, and the court will work to uphold your child's rights insofar as the children's best interests can be met. It's generally held that it's in a child's best interests to have a relationship with both parents, and the court doesn't take well to parents who intervene on a child's rights without a valid reason for doing so.

As such, my suggestion is to be prepared to give the child unsupervised time with his father.

 

[purplemonkey]

Thank you for your reply.

I stopped taking my son to his father's house as the father never made an effort. Surely after 8 years of me going there every Saturday and then saying enough is enough because the father wouldn't make an effort would not look badly upon me. His father only saw him because I took him there.

There were several incidents, 2 involving violence against my son that has caused my son not to want to see his father. My son when 5 years old opened his fathers bird cage and the bird got out and flew away. His father went off at him, telling him that he killed his bird saying other birds will peck the bird to death and when telling my son this he was "pecking" him on the head. He also told my son that he will come to his house whilst he is asleep and let his budgie go. My son was scared and had a hard time over this.

Another incident involving his father buying him a remote controlled helicopter when he was 3 (It was designed for a 14-year-old). My son had the control and the helicopter flew into his father's face. His father kicked him to the ground to stop him.

My son also made him a father's day present at school. I informed him of this and he said he could not come and get it. He never came to his first day of school, never came to the hospital when he had his tonsils outs. He has never paid for anything or provided anything for my son.

I am all for him having a relationship with him but I have been the one that has done everything for him his whole life.

I am just at a loss as to what to do.

 

[AllForHer]

Okay, this:

"There were several incidents, 2 involving violence against my son that has caused my son not to want to see his father. My son when 5 years old opened his fathers bird cage and the bird got out and flew away. His father went off at him, telling him that he killed his bird saying other birds will peck the bird to death and when telling my son this he was "pecking" him on the head. He also told my son that he will come to his house whilst he is asleep and let his budgie go. My son was scared and had a hard time over this."

...this is not domestic violence. This is a father upset at the loss of his family pet and trying to show his child how much it hurts him when his son is careless. It's called a parenting style, a disciplinary tactic, and while you may not agree with his actions, it doesn't make it domestic violence. On top of that, it happened six years ago. Your son - and this is a cognitive fact in human development - would have no living memory of the incident actually happening, he would only have the memories that other people have told him.

This...

"Another incident involving his father buying him a remote controlled helicopter when he was 3 (It was designed for a 14-year-old). My son had the control and the helicopter flew into his father's face. His father kicked him to the ground to stop him."

...this is also not domestic violence. This is a once-off incident, in which it sounds like the father acted defensively to stop the child's actions because they were hurting someone. Another matter of difference in parenting styles.

If these are the most serious incidents in memory, both of which happened at least six years ago, you're not going to have a case to claim domestic violence and have supervised time ordered. If the father has made efforts to spend time with his son, minor complaints about him not going to his school and hospital and not collecting a father's day present are going to be trivial in the eyes of the Court. What it will be interested in is why you haven't given the father more opportunity to father his son without your input.

I don't mean to be blunt, but I have seen cases like this hundreds of times, and I am telling you that the Court won't support your cause, so don't waste your $15,000 on a lawyer in the hopes that I am wrong. It's extremely likely that unsupervised time will be ordered, and on a regular basis, so your time and energy would be better spent coming to terms with that prospect, rather than forcing him to take you to court. Your criticisms of the father are not evidence of an unfit parent, they're evidence of a slightly acrimonious co-parenting relationship, and it really doesn't sound so bad that it can't be repaired, provided you let go of your criticisms and accept that you can't control the father's decisions as a parent.