SA Family Law - Parentage of Daughter?

[Fritzmonger]

I don't blame you. I don't like to explain it.

My ex-wife was in an undeclared lesbian relationship which started while she was pregnant with her first child. The father has never been in the picture.

They had another child together in the three years they were together. I was effectively "the other man" who she had an affair with and that relationship ended. The kids had a 7/7 fortnightly routine between houses, I can't remember exactly how it was split, it wasn't week on week off.

About a year after we got together we decided to have a baby, and our relationship went in and out of hell for a bit, she moved back in with her ex for a month until she remembered why she left. Just before she was born I was asked if I was ok with her having access to our daughter because she was a great emotional support to my wife, I agreed believing she meant a role like godmother, maybe spend a night a week there. Instead, I found out about a week after she was born, access meant the same deal as my step kids, including making parental decisions.

I started having counselling for depression 2 weeks later, my wife refused to make changes to the "arrangement" and didn't want to know about my mental health issues and refused to go to counselling. I'm now taking strong antidepressants as a result.

During the first year of her life, I was accused by her ex to be molesting my daughter, her ex quit her job after being reprimanded for verbally abusing my older stepdaughter and myself and my step kids had been told they weren't allowed to call me dad, even though they were desperate for a father figure. I kept asking to stop our daughter going there but told me "she couldn't do that to" her ex, as in causing emotional damage.

We had another child, and she did not have the same arrangement as our older daughter, however I had severe post natal depression as I feared a similar situation.

Our older daughter is now four, the relationship between myself and my ex wife is good if we don't talk about the kids. She has the older 3 three nights a week and the youngest 5, I have my older daughter once a week (and world war 3 had to be averted to get that) and my younger one twice, however I have majority of daytime access with her. Her ex has the older 2 four nights a week and my oldest 3. There are no court orders in place.

My biggest problem right now is her ex's new partner who is a former families sa worker. She told me this morning She had evidence I was an unwitting sperm donor 5 years ago. Last night she also tried to have me arrested for kidnapping my own daughter after I picked her up from vacation care.

The reality is ive spent four years being bullied out of being the father my children need. I've expressed my concerns multiple times to my wife about abuse to the children at the other house, yet she is unwilling to challenge her exs behaviour, even after experiencing it first hand: her ex took my spot on a family holiday we booked before we split and according to my wife, spent the whole week either in her room or yelling at the kids for no reason.

Anyone who read all that, I think I still missed stuff, and I apologise if it's confusing, I get confused by the situation.

I'm seeking a 50/50 type deal for all four kids with just my ex wife so I expect a long and nasty fight

 

[Lennon]

Who is the father of the second child your wife had?

 

[Fritzmonger]

Sperm donor on verbal agreement.

The irony with her is the ex told her afterward she didn't want another child and only agreed because she thought my wife would leave her if she didn't.

This is the same one who seems to only trust me with how she feels

 

[AllForHer]

To save me talking about the ex, the ex's ex, and the ex's ex's new partner, I'm just going to refer to the ex as A, the ex's ex as B and the ex's ex's new partner as C.

I'm also going to refer to the four kids as W, X, Y and Z - W being the oldest from the uninvolved father, X being the second oldest from the agreed donor, Y being your oldest biological child and Z being your youngest biological child.

My understanding of the care arrangement is as follows:

• W and X spend three nights a week with A and four nights a week with B;
• Y spends three nights a week with A, three nights a week with B, and one night a week with you; and
• Z spends five nights a week with A, and two nights a week with you.

Forgive my frankness, here, but you've got four kids to three different fathers, all on different care schedules with up to four different adults, including a father who spends less time with his child than the mother's ex-girlfriend. C's employment history and alleged evidence of you being an 'unwitting sperm donor' (which, by the way, is collusion) is the very least of your problems.

First, the question of parentage for Y is pretty straight forward. In fact, I think you're just spooked by what C has threatened and it's clouding your logical judgement a bit, which is why you're maybe seeking reassurance here.

Consider this your reassurance. Parentage is very serious business and children cannot just pass from legal parent to legal parent with agreement from mum or dad via text message. No matter what you said in person, in e-mail or via SMS, if you didn't put your signature on a piece of paper that assigned B as the legal parent of Y, then B isn't Y's legal parent. You are. Forget all the rubbish about A and B's secret pact to use you as a sperm donor, forget C's threats about having evidence of same - if none of you can go to Births, Deaths and Marriages and get a copy of a certificate that shows B is Y's legal parent, then B is not Y's legal parent. You are.

Specifically, though, you did ask about parentage and mentioned you weren't on the birth certificate. This is fairly easily rectified. Under section 69P of the Family Law Act, a child born of a woman who is married is presumed to be the child of the husband, so if you and A were married at the time of Y's birth, then you are protected by that presumption. If A wanted to rebut parentage, she'd need to prove that you're not the child's father, and saying 'B and I made an agreement to raise my husband's child without him' isn't going to cut it.

Now, I'm not sure what the process is in SA for getting your name on the birth certificate on grounds of presumption and without A's consent, but a quick call to Births, Deaths and Marriages should put you on the right path.

So, since we've established that you're still Y's father and no petty nonsense from A, B and C combined is going to change that, let's talk about parenting orders.

While ever you don't have parenting orders in place, there are no rules for care arrangements around the kids, which is why you should aim to get parenting orders from the Court as quickly as possible.

Now, I imagine you're wondering what role B and C will play if you end up going to Court about care arrangements for the kids. The legislation allows a non-parent party to file for parenting orders, but they must first satisfy the Court that they are a person concerned with the care, welfare or development of the children in question, which is basically a way of saying they need to show that the children have a relationship of such significance with them that it's in the children's best interests to have parenting orders made to facilitate that relationship. Parents don't have to meet this threshold, but third parties do, and B, in not being a parent, is a third party.

Given the amount of time that B has been allowed to spend with the kids, she may well succeed in meeting that threshold, but she's then going to need to persuade the Court that it's in the children's best interests to spend more time with her, their mother's ex-girlfriend, than with you, their biological father. If you didn't have any relationship with the kids, then she might succeed, but if you're still seeing both kids at least once a week, then you're an involved parent, and the Court is going to place priority on the children's right to a meaningful relationship with you over the ex-girlfriend.

But before this matter can even get to Court, you and A need to attempt family dispute resolution to try and negotiate a care arrangement between you. Once you have the s 60I certificate which is granted after mediation, you can file an initiating application with the Federal Circuit Court for parenting orders. Relationships Australia and Legal Aid should be able to help you with the mediation component of the thing.

I'm sure I don't need to say this, but get legal advice before you file any applications with the Court, and don't let C intimidate you. Parents can't kidnap their own kids, so that alone tells me she's kind of an idiot.

 

[sammy01]

Go to court... Now...

This is a debacle... Magistrate will say so too.

Forget threats from some twit who works for a welfare agency.. They do think they have power bestowed upon them by God, but they don't

Go to court... Book mediation with the ex-wife and insist on your time with kids increasing. Be blunt, tell her that if she doesn't agree this thing will go to court and in court things will get messy.... And you would prefer avoiding that scenario. You want consent orders...

It probably won't work.... But once you've given that a good go, get back to this site and learn how to self represent... Depending on how confident you feel you can self rep all the way through this crazy system if not, then you can get 3/4 of the way through on your own and pay a solicitor for the last 1/4.

 

[Fritzmonger]

Thanks for the support. FDR is already underway with first mediation session due in a month, but my ex has indicated she would stonewall me on changing custody arrangements. I did plan on self representing for the most part and using a solicitor for advice and paperwork.

Unfortunately we weren't married until after she was born, but any DNA testing would end in my favour if ordered.

I've got an appointment tomorrow with a lawyer where I'll ask if I have a case for an avo after all the harassment I've had this week.

 

[Blessing]

This is quite a mess but I don't see how she can be completely excluded from the children's lives. She's more than just their mother's ex, from what you stated she was involved and contributed significantly to raising the older 3 children, from since they were born.

 

[sammy01]

Yep she can't be alienated.... But neither can he... The ex's ex has nothing to do with him and can't dictate terms of his relationship with his own kids.

 

[Fritzmonger]

Update post mediation

I picked up one more night with my biological kids, and an extra day with my oldest. I'm at a point where I'm happy with the balance we have with our youngest, however the extra night I gained with my oldest came at the expense of my ex wife and not the third party.

My ex was not willing to discuss arrangements with my step kids without her ex present, so no movement there. Her ex was invited to a second mediation session, basically so things could be discussed, which was refused so I'm waiting on the mediation certificate then waiting for legal aid approval.