SA Wanting to see my son an be in his life

[Desperate dad]

Help, i recently broke up with my sons mum she is not letting me see him and will not answer calls.. only thing ive been told is i can see him for a brief time at her mums supervised.. im being treated like a criminal i love my son i would never take him away from his mum i only have his best interests at heart. As it is its been 6days since i last saw him for 20mins and i bet he's wondering where i am.. ive contacted relationships sa and am awaiting there call back.. my son is 15mnths old and i also have another son to someone else and he is 11yrs old never had an issue witb his mum i see him often i even let them move interstate bcos i trust the mother.. i am a good man who love his kids what rights do i have to see my baby boy? I dont want this to take forever im already missing him so much an he is surely missing me aswel. Thanks

 

[Desperate dad]

They want me (ex partner an her mother) to agree to see him when they decide and under supervision from her mum (who hates me) for an hour or so 2 timea a week.. my ex has never let me take my son on my own even tho weve been together the whole time and has never let my family meet my son.. she is controlling an manipulative, all these reasons are why we are no longer together.. this is all breaking my heart as i love n miss my lil guy

 

[AllForHer]

Okay, take some deep breaths. You're very early in this process, and acting rashly now is going to hurt your long-term prospects, so just have a cup of tea and calm.

So, your first step should be to contact Relationships Australia or Legal Aid SA to organise mediation with your ex so you can try and negotiate care arrangements for the child. It might also help to organise a consultation with a Legal Aid lawyer, as they offer free legal advice for family law matters.

Mediation is a mandatory step before you're allowed to file for Court. If mediation fails and you don't reach an agreement, you'll receive a s 60I certificate, which will enable you to file an initiating application for parenting orders through the Federal Circuit Court of Australia.

When asked to make parenting orders, the Court follows the Family Law Act 1975. Some key components are:

• That children have a right to know, spend time and communicate with both parents on a regular basis, insofar as their best interests can be met, and regardless of the nature of the relationship between the parents. The Court's goal is to uphold this right as best it can.
• The child's best interests are paramount. The Court considers the factors provided in s 60CC of the Family Law Act (www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fla1975114/s60cc.html) when deciding what's in a child's best interests.
  
• Shared parental responsibility is the term used to describe the obligations of parents to make major, long-term decisions that affect the child's care, welfare and development. These include education, religious affiliation, living arrangements, change of name, and major medical interventions. Shared parental responsibility is a presumption, meaning you both retain equal parental responsibility for the child unless the Court orders otherwise. The onus is on the other parent to prove that equal shared parental responsibility isn't in the best interests of the child, if they seek an order for sole parental responsibility.
  
• If shared parental responsibility is upheld by the Court (which is almost always), then the Court is obligated to consider an equal time arrangement. If equal time is not deemed to be in the best interests of the child, then it will consider substantial and significant time with the non-resident parent. Substantial and significant time is a combination of weekdays, weekends, holidays and special occasions. Five nights a fortnight is perhaps the most common outcome at Court where shared parental responsibility is upheld, and issues such as distance between households, ability of the parents to communicate, etc. will affect what the Court decides.

As a matter of interest, the commencement of proceedings (including mediation) is often a proverbial 'kick up the bum' for the other parent to start playing fair in their role as parent. Most will get legal advice that provides hard truths about family law and how withholding a child from the other parent can cause irreparable damage to a case, and eventually, they'll start negotiating a bit more fairly than in the beginning, when emotions are still running high and there's a lot of contempt lingering around the break-up. As an estimate, about 95% of parenting matters commenced in Court are settled by consent, rather than at trial.

You can keep your costs down if you're willing to learn a bit about family law and represent yourself. Sites like this one can provide a lot of good guidance, and you can also use Legal Aid from time to time to check that you're doing the right thing.

At a personal level, I really encourage you to review your choice of communication with mum. Too many phone calls or text messages is going to result in an application for an AVO, which can have fairly minimal impact in family law, but is an added complication, nonetheless. So, my advice would be to start putting everything in writing, keep it very civil, and focus only on the child.

For example, you might wait a few days, then text mum and say 'Hi, I would like to see X this weekend, can I please pick him up on Saturday at 10am and I will drop him back to you on Sunday at 5pm? If not, please let me know if there's a time that suits you better.'

If you don't get a response, you might send another text a few days later and state, 'Hi, I didn't hear from you after I messaged the other day, just wondering if X is available to spend the weekend with me from 9am Saturday to 5pm Sunday?'

If she demands supervision, you can say 'I don't see any need for supervision, but I'm happy to do this in the meantime until more appropriate care arrangements are agreed. I'm concerned that your mother supervision will create a tense situation for X, but I'll see if my mother is available to supervise instead.'

These are just examples, but what you want to do is start making a track record for yourself of being reasonable and civil to mum. The Court doesn't like parents who refuse to get along, so it's better if it's her refusing to get along, rather than you.

But first step is to call Relationships Australia or Legal Aid.

 

[Desperate dad]

Thankyou so much! I have my appointment with centre care for mediation on tuesday since i last posted the mother of my child has dissconected her mobile making it virtually impossible to comunicate..