SA Family Law - What are My Rights to Keep Children Safe?

[ConfusedDad]

Hi.

A quick background...

The mother of our 3 children & I split a few years ago. We did alternating weekends of our children. Both of us have new partners & have married. Since my ex has been with her new partner, she has been slowly cutting my visitation down to nothing now.

The 3rd one decided she couldn't stand to live there anymore as her mum was verbally abusive & unloving. And that her partner was extremely verbally abusive & physically abusive to the kids & my ex. Since then, she has refused me seeing the other 2 children at all & wants nothing to do with the 3rd, as she has said she is too scared to go back there whilst her partner is there.

Recently, we had no other option but visit the kids at their school, where they advised us that one of them had had been hit in arm & thrown into a wall, bruises were seen. They both said they were unhappy there & didn't want to stay there. There drug use in house. My ex's partner had been arrested on numerous charges, etc. in front of them.

Please don't judge me for not taking them then. I was unsure of my legal rights & it killed me to leave them. I went to the police & they advised me to apply for legal help (which I have done) & also that as I am on their school records as biological parent that I can legally remove them from school for safety concerns.

So, we went to school & tried to do this. The school's answer was no as I'm not an emergency contact, even though they noted that I am the biological parent on file & also that they have been filing reports about the kids already to Families SA.

Numerous Police visits & tones of reports to Families SA. I visited Families SA to which their file was brought up & the lady proceeded to mouse wheel scroll through the mass amount of reports.

How can I protect my 2 children whilst I wait out legal solutions?

What are my actual family law rights to keeping them safe?

 

[sammy01]

Do you have any court orders?

My thought is dependent of the kids. If you're confident that they will make a statement to the police you could seek out an AVO to protect them from the abuse. That would get them into your care and stop the ex from being able to approach the kids.

Without any court orders there is nothing stopping you taking the kids and if you're doing it to keep them safe, then you can't get into trouble. Now if there are reports generated by the school, etc. to support your claim then that is a huge strategic win.

Now the school really should make you an emergency contact person if you request it.

So does the older child go to the same school? How far do you live from the kids and their mum?

 

[ConfusedDad]

No custody orders at all.

Can't take kids to the police as mother & school won't let me near them as her partner is the controller in their relationship. Went to Police only the kids can say whats happening. I can't apply for AVO without them.

School refused to make me a contact as mother enroled her. They say they haven't seen bruises, but have reported filthiness many times. Youngest a had visible arm bruise.

Both go to diff schools & live about 25 mins away from both schools & mum

The school said they were unable to release, even though I have safety concerns & no custody orders.

I was gobsmacked that they just willingly let the child go back. Didn't even ask what the child wanted to do, and refused to even let me see them. They are both of age to make own decision the police told me when I was asked their ages.

 

[sammy01]

You can ask the cops to do a welfare check. But that probably won't help much. So can you make an appointment with the principal to discuss?

Do you think the kids want to come live with you? Will you be seeing them in the holidays? How do the kids get home from school? Would they go with you willingly?

You could book in for mediation with Relatinships Australia to organise mediation. I reckon that should be your first phone call.

What advice did Families SA give?

 

[AllForHer]

How old are the kids?

 

[ConfusedDad]

Kids are 10 & 13. Police said they ae old enough to make their own decisions.

The principal is the one who made the decision not to release the kids. They did a welfare check, and they refused entry as they said, "No, kids, home."

The Families SA advice was to keep reporting.

Yes, they have said want to live here. No, I'm not seeing them on holidays - haven't seen them since the beginning of year. Had to find the school they were at.

They get driven to school.

I have contacted Mediation, with no response from the other party. We have tried everything & just getting nowhere legally to protect them.

 

[sammy01]

What sort of money are you on? Don't mean to be blunt, just wondering if legal aid would help...

I'd be having a chat with the principal. Be polite.

If the kids lived with you, would you enrol them in a different school? Ask the principal how to ask about how to enrol them in the school closest to you. How do they get home from school?

My thoughts - Try and get that done asap. See if you can't agree for the principal to let you take the kids on the second last day of the term. Keep them for the holidays and enrol them in a school near you. If the kids make any murmurs about being scared of mum / mum's partner, then ask the cops for an AVO, or if she contacts you and is threatening do the same.

The other option is to apply to court. This could take a long time... If you just take the kids and get an AVO in place then she has to do the work to get court orders, etc, etc...

 

[AllForHer]

So, at the moment, you seem to be taking a 'vigilante' path of dealing with this dispute, instead of the 'legal' path that actually has weight and consequences.

Stop going directly to the kids. You're involving them in a parenting dispute and exposing them to conflict, which never looks good in front of a Court. On top of that, if you simply take the kids because they said they want to live with you and the police said they were old enough to make their own decisions, you'll likely find yourself the respondent in a recovery order application which would probably succeed. Again, not advantageous to you in the long run.

If you genuinely fear for their safety, you can apply for an AVO and have them named as protected parties. I'm not sure why you're under the impression you can't apply for an AVO without them, since such orders are generally available to parties who 'fear for the safety of another' as an inclusion in the definition of family violence.

Beyond that, get legal advice and file an initiating application with the Court for parenting orders. You could even apply for interim orders for a change in residency until Families SA finishes its investigations into the allegations of endangerment.

You're best to cease the campaign with the police, the school and Families SA, and instead focus your attention on getting parenting orders in place so you actually have some legal force behind your actions. At the moment, you're powerless. With orders, you won't be.

 

[ConfusedDad]

Thanks for your help.

We have applied for legal aid, but know we will be paying a gap as I work. Which is fine I am happy to do that.

The principal has stated she will not hand them over, even after concerns have been noted, even though they themselves have reported as well & even though I am noted on files as being biological father.

My intention was to enrol in new school & get AVO once I have them safe, which is becoming increasingly hard to do, without waiting out the Family court.

I just feel I am failing them by being unable to protect them, has never been my intention to stand in way of their relationship with their mother. But their safety comes 1st above anything.

I really appreciate all suggestions & will try all of them.

 

[ConfusedDad]

Only went directly to the kids once & that was after 7 moths of not seeing them, after being told by neighbours in the mother's street that Police are always there....

I don't badger them for info. They told me. Yes, going legal is what I am doing. My fear is what happens to them whilst waiting? Who protects them?

My wife went through Family Court & Magellan Court with her ex. He was a downright bastard. She didn't see her kids for 7 years due to his lies & nasty ways. Even the judge was disgusted but as he refused contact for so long & the fact the court system is so overloaded by the time they figured out what he was doing, he had brainwashed them so much that they hated her & blamed her for anything & everything & there was no relationship left between them. She cried everyday for so long.

The judge was left powerless due to not being able to have contact. The kids had to become almost adults to see what their dad was truly like & now that bond is not there.

I don't want this to happen to my children.. or anyone's children.

I will wait on a lawyer's suggestion before seeking anything else.