WA Family Law Rights to See Children?

[zar]

Hi I am in Perth and my partner has left me and taken our 11 month old daughter away from me. Since then the mother has no contact with me and the grandma has taken everything over. The grandma only allows me tosee our daughter once a week for an hour at her house on her time and terms. I am not allowed to take our daughter out of the grandmas house let alone have her overnight, so I have to see our daughter with the grandma, standing over me. What rights do I have under family law? Is this allowed?

Thanks

 

[Tracy B]

Hi Zar,

Under family law, the parents have no rights per se. It is only the child that has rights. The law recognises that children are better off with close relationships to both parents. Hence, the law will try and allow a parent to see their child whenever possible unless it is in the child's best interests not to do so, or to do so with conditions imposed.

Do you have a custody agreement with the mother? If not, it is best to reach agreement on one privately. If you and the mother cannot do this, you can apply to court for a custody order.

The Family Law Courts website has a lot of information to assist you, including:

• "Children and separation"
• Family Relationships link

If the mother has taken your child to another state or country, you can apply for a recovery order.

 

[zar]

Thankyou, no there are no court orders in place yet, and no violence orders or restraints or anything of the like has gone on. I looked after our daughter for the first 8 months of her life and was her pprimary carer for that time, which is making it hard for her also to not being seeing me as well as me

 

[AllForHer]

If there are no current orders in place, you are within your right to take the child into your care, and the grandmother has no legal avenue to stop you as she has no parental responsibility for the child.

I don't ordinarily raise this as a point because I am a firm advocate for amicable outcomes, rather than ones that risk conflict, but if you were the primary carer for the child for eight months during her infancy, and she is now only 11 months old, then it's very likely that her primary emotional attachment is to you, not the mother. If you are now only seeing her for one hour, supervised, each week, then I would argue the child's best interests are not being met because she has been unilaterally separated from what may potentially be her primary attachment figure.

So, with the above considered, please know that this is a federal matter, and the state police have no powers to intervene if you were to remove the child from the grandmother's property without her consent. You don't need her consent - she doesn't have parental responsibility for the child, which means she has no say in care arrangements whatsoever. While ever there are no orders in place, you have as much power as the mother to have the child live with you and stipulate supervised time to the grandmother.

Fathers tend to be backbenched and forced into believing they're the 'secondary, less-important parent' because they didn't carry the child in their womb, but this is not the case at all. The court recognises the benefit to children of having a meaningful relationship with both of the child's parents as a primary consideration in what meets their best interests.

Just a thought.

 

[zar]

Hi all for her, thank you so much for your information but the truth is I havent done anything wrong here and would like to continue trying to fight the right fight, without causing anymore trauma to our daughter than she has already experienced. I would love to message you privately and tell you more of the information that the mother and grandmother have done to me including fraud

 

[Victoria S]

That's great that you're going to go forward by really taking into account the Family Law principles - its important that you do.

There's no private messaging, but if you decide you're going to invest in getting legal advice from a lawyer, then you can go to the LawAnswers Get Connected with the Right Lawyer for You service.

 

[zar]

Thank you for your reply,i gather that this is at a great expense though? After everything that has been committed on me I have been left with no resources to pay And have currently been aapproved for legal aid which is very difficult to get an appointment through. i may just have to continue to sell my possessions as i have done thus far to try and get advice and paperwork

 

[Strongarms38]

Hi Zar.

Sorry to hear about your situation. Interested in some extra details? You said you've been approved for legal aide? That's very rare especially for a man. Sad but true I'm afraid. Ordinarily if you have been approved for legal aide there's a selection of lawyers who operate within legal aide guidelines. This would normally be a junior representative of a law firm. In this situation the more senior lawyer will not be a part of your case and not offer any assistance to the junior lawyer. Legal aide only goes so far. To get an initial appointment with them in WA is normally quite easy and done relatively quickly. However their advice isn't legally binding which is important to consider. Orders are exclusively the courts to implement. So orders must be legally binding from the family court. As always you'll need to attend mediation. If this doesn't go well which isn't uncommon you can obtain a certificate allowing court proceedings to begin. You should note that your child will probably well into her 2nd year of life before this gets resolved. Nothing in WA family matters happens swiftly. Although technically correct you can indeed remove your child from the grandmother. Just like a nanny they aren't a parent and your rights are above hers. You should call the police before attempting to do such a thing as there's a very strong chance that either way if you take this path the police will become involved in one form of the other. Technically unless there's a reason due to public issue being apparent. Eg. You attempt to take child and any nastiness occurs the police will then have to be involved as it becomes a domestic despuit. If you do indeed have legal aide then use it and get a lawyer happening. Best of luck. The process sucks and as much as it's supposed to be a fair system the reality is that's very unlikely.