VIC Family Law - Issues of Medical Neglect and Travel with Ex?

[CiuinAnam]

Hi and thanks for reading,

Issue 1: I feel I am dealing with an issue of medical neglect from my ex-husband. It is not life threatening, so I doubt there is a case.

The mixture of routinely exposing our child to foods he's allergic to (dad was historically in agreement/understanding with that diagnosis), recently not participating in treatment ordered by paediatrician and once that I am aware of treating him with antibiotics not prescribed to him. If he doesn't undergo the medical treatment, he will unlikely succeed to k4.

Are these issues possible or recommended to pursue legally under family law?

Issue 2: Ex-husband agreed to allow our son to go overseas with me to see my side of the family. This same trip was made 2 years ago in the same way without conflict. I have his approval in writing, and it is written into our parenting plan how it should play out.

I arranged a consent form to travel (dad allowing him to leave with details of return) and a statutory declaration outlining the itinerary, insurance, phone numbers and tickets. I keep sending the paperwork for this and the above medical plan. It is all returned and no response.

The trip starts on December 7th this year. Should I be going through a lawyer with the time constraint? I don't want to waste time and money for either of us if it's not necessary.

Ex-husband says one thing in mediation then uses his time and effort after to "get" to me. I get it. I had a protection order against him after abuse and stalking. He doesn't know where I live, I have a security system, and I've taken away any opportunity to hurt me. So there is no shock that he has now moved onto our child in ways that will unlikely come back to him.

I've tried to discuss these subjects and get nothing back. There are many more issues, but these are the two that I believe are affecting our child the most. We have mediation again soon (he refused until the last step) but it will likely go as it did last time, lying and stonewalling.

 

[sammy01]

What is in the parenting plan?

So you have sent the travel info. What more do you need to do? He hasn't said no, so go.

As for the other stuff. Pick your battles. And learn to play the stupid game of divorce better. Don't engage in conversations / arguments. If he ain't gonna follow what you / paediatrician / doctor / lawyer / santa tell him to feed the kid then deal it, or waste a whole lot of money on solicitors and get no-where.

Story time - My ex keeps telling me not to give the kids a particular type pain killer medication. I give it to them regardless. My ex is a nutter, sometimes the kids are allergic to this, some times they are not.... I'm not saying you're a nutter. But maybe he is feeding the kid what he wants to and there is nothing you can do about it. Pick your battles...

 

[CiuinAnam]

what is in the parenting plan?

So you have sent the travel info. What more do you need to do? He hasn't said NO.... So go.

As for the other stuff. Pick your battles. And learn to play the stupid game of divorce better. Don't engage in conversations / arguments. If he ain't gonna follow what you / paediatrician / doctor / lawyer / santa tell him to feed the kid then deal it. OR waste a whole lota money on solicitors and get no-where.

Story time - My ex keeps telling me not to give the kids a particular type pain killer medication. I give it to them regardless. My ex is a nutter, sometimes the kids are allergic to this some times they are not.... I'm not saying you're a nutter. But maybe he is feeding the kid what he wants to and there is nothing you can do about it. Pick your battles...

Which is why I'm asking for some perspective. If I was were to fight court battles for no reason I would have started a long time ago. I have been to court for the DV and divorce.

Our child is not sometimes allergic. It is every time, even trace amounts. Daycare has seen it, my family has seen it, my roommate sees it, even my ex mother-in-law has seen it and feeds him as requested by the doctors. He comes home with hives, diarrhea and vomiting and points out the foods that he has at dad's (not by my asking him to do so. I don't discuss dad) when we are at the shop.

If this has never been argued in court then I'm fine with walking away. I understand 2 houses, 2 sets of rules if I have to. I just need to know that that is the only option. Our son is not a pawn.

If I leave the country with our son and without a legal document signed by dad explicitly saying that I can leave with him, his father can at any time have our son forcibly returned. Him not saying no is not enough. We went through this 2 years ago and he knows forced return is an option for him.

I haven't picked my battles yet, I am asking here first. If someone from a legal mind can tell me both avenues aren't arguable, then I will be on my way.

 

[sammy01]

Ok,

So do you have court orders?

Write to him, say this is the travel plans. You could write something about him not needing to respond unless he wants to ask any questions. Easy... Oh and he won't get into court to get you forcibly returned.

No chance, not if it is a family holiday for a few weeks. Different story if you're gonna live overseas. You've told him of the travel plans right? He hasn't said no... Now no-one at the airport is gonna ask for any stat dec's or what ever and the Australian govt isn't gonna send someone to kidnap the kid from you while you're overseas...

As for food - well maybe the kid is gonna have to learn. Or plan B - Go to court and ask magistrate to provide orders so that the kid doesn't see dad because dad won't manage the kids health issues.

 

[AllForHer]

So, legally, the answer is really the same no matter what the issue is: if you can't agree, then you can apply to the Court for parenting orders.

For the medical issue, your first port of call should actually be communicating with dad about the symptom the child presents with and enquiring as to what his view is on where they are coming from.

Lots of parents are suspicious of the other parent, sometimes understandably so, but then they also make the mistake of going on to put an unreasonable amount of weight in the word of their young kids without actually enquiring as to whether it's founded or if the child is just saying what they think that parent wants to hear.

If it comes out that the other parent actually isn't managing the child's allergies and refuses to do so, then you might have grounds for an injunction on both parents from allowing the child to consume whatever ingredients trigger the allergy.

The challenge I think you'll find with that one is actually persuading the Court that such an injunction is necessary. At the moment, you're going by observations of the child's illnesses (hives, vomiting, etc.), and what the child is saying about what he eats when with dad, which is essentially hearsay evidence and not very persuasive.

If dad presents that he isn't feeding the child anything that triggers his allergy, then it'll be his word against yours - also not very persuasive. The Court is just as likely to assume this is an unfounded complaint and that both parents are already doing the right thing, particularly since it's already in agreement that both parents recognise the need to manage the allergies.

Regarding the holiday, I think we need some clarity about what happened two years ago before we can really offer guidance on this one. The Court doesn't often order the return of a child from what is a legitimate holiday abroad where consent and passports have been obtained properly, so there must be some facts missing about why such an order was made....?