NSW Where Does Father Stand on Custody of Children Issue?

[Rosie C]

Mother awarded custody of children of 3-year-old with access by the father but doesn't allow access. The child is 7 when, due to mother's ongoing mental health problems, she sends the child to live with father and stepmother, stating that she can't provide a stable life for the child. There was no change in custodial arrangements due to threats by the mother to remove the child if any legal action is suggested.

Two years on, mother wants the child back but the child, now 9, doesn't want to go as she's settled and doesn't want to return to itinerant lifestyle with 'angry mum' (mum has bipolar). Where does father stand under family law?

 

[AllForHer]

If this were to go to Court, I would see merit in the father's case favouring the current arrangement.

Parenting orders are kind of the default. If the parents agree to deviations from the orders, the Court supports and encourages that.

Technically, she can file for contravention, recovery or parenting orders, but I doubt contravention orders or recovery would be successful since I imagine you have proof of agreement for the child to live with you, and current arrangements have been in place for two years. Thus, she would likely need to file a new application for parenting orders, which means she will need to show the Court why it would be in the child's best interests to reverse the living arrangements again.

Ordinarily, changes to existing orders require the applicant to show that there's been a significant change in circumstances which warrants a change to orders (called the Rice & Asplund principle), but since the child was three when orders were first made and there's since been a change to care arrangements, I doubt the Court would have issue with hearing this case anew.

First step though is mediation. It's mandatory before anything can be done in Court. I would get legal advice though - Legal Aid offers three free consultations for a single family law matter, so give them a call.

 

[sammy01]

Yep, I agree. But some practical considerations. If you're concerned, the mother might pick the kid up from school, for example, you need to have a chat with the kid about how to respond and what to do...

As far as family law goes, it is hard to pick a result but definitely, I'd be willing to bet that you guys will remain primary carer