10 Comments Family & de facto law, financial agreements, consent orders
She can certainly claim to be the childs legal guardian I believe - especially considering he left his son in her care - and that the child has a sibling.
The courts would look dimly on taking the child from his known care to live interstate - especially with his (half) sibling staying behind.
Family law is couched always in the best interests of the child - and non-withstanding "welfare concerns" as noted above I would not think that removing the child from the mother and sibling that he has know to move away from them to an interstate location would be "in the best interests of the child".
[QUOTE=Phee_88] I have a question on behalf of my new partner.
His son, was left with his ex-wife for the continuity of his schooling,[/QUOTE]
Why was the child left with her? Why couldn't he take care of him?
[QUOTE=Phee_88]His ex-wife (not currently divorced) has never adopted the child and is not his biological mother.
She has restricted all access to this child and also another child of the relationship my partner sees his son by going to the school regularly and having contact during lunch time. [/QUOTE]
Why has she restricted all access?
Is she aware of him visiting at school?
Does she receive any support payments from him or centerlink?
She kicked him out with no where to go and he was not able to take the boy with him.
The child was left with her due to his continuity for schooling, he didnt expect that she would restrict access.
She has held on to the childs passport and has hidden my partners birth certificate. The child is dependant on my partners permanent residence visa and if he chooses to leave the country the child must accompany him.
She is aware that he visits him at school, she had attempted to stop that by bad mouthing my partner to the principal. They attempted to stop him from seeing his son, but as he had the birth certificate with his name on it and there are no AVOs in place they could not stop him from seeing the child.
She has attempted to obtain child support for the boy but she has to register a case against both parents and the mother is unable to be located so the case will be made invalid.
When they get divorced does that remove her from being his 'stepmother'??
Apart from the parents, the family law act gives certain rights to.... any other person concerned with the care, welfare or development of the child.... Endquote. Rights such as filing with the court for parenting & location orders.
As it stands she meets that standard. She does not however have parental responsibility for the child, so has no authority to make decisions concerning the childs critical medical requirements, long term care such as school enrolments etc.
I know you have said that the child was left with her " due to his continuity for schooling", however he has made a decision to leave the child in her care which has led to this position, so it's crucial to know all the circumstances as to WHY that came about.
Was there some agreement to leave the child there just until he found accommodation, or did he just leave & disappear for a while?
Has his circumstances changed now such that he is able to care for the child? If so how?
Has he enrolled him in any school for next year?
He is planning on moving to Canberra (currently he and the child are in Tasmania) as this is where i have employment and where we are buying a house.
He never 'disappeared' he had attempted to contact her and his child but she didnt answer calls or let him see the child.
We have appointments on Monday at 3 schools in canberra, 2 private and 1 public to consider enrolment.
He had made it very clear to her that once he completed year 6 my partner would be taking him.
If he wasnt leaving the state he had a house to move in to. Currently he is in emergency accommodation provided by his employer as he had no where else to go and they didnt allow him to have the child there.
He had attempted through mediation to reconcile with her and to arrange visits with the child but she would not continue the mediation and cancelled it.
In his position, I would be calling the mediation centre & getting a s60I certificate confirming meditation has been attempted & ultimately cancelled by the other party.
Choose a school to enrol in on Monday & do it. Get together evidence that you are in the process of purchasing a home in Canberra. Loan approvals etc. Also get together evidence of stable employment.
1) How old is the boy & how long has he been in her care
2) what (honestly) is his opinion of living with his dad & moving to Canberra.
The child is 12 and he is his dad i think he would be happy to live with his father. the only thing that he would be terribly sad about is leaving his half brother.
The separated in Nov 2011 - Hence why the divorce will be filed by my partner the end of this month due to the 12 month separation rule. He has been in her care since then
Having a sibling that he has an emotional bond with makes it difficult for him. The father needs to have a good heart to heart with him to establish his thoughts on all this. Just removing him to Canberra may be traumatic, however relocating to Canberra or not, the boy has the right to regular contact with his father & she has no right denying it under the circumstances.
The magistrate handling the divorce will want to be satisfied that proper arrangements are in place for the care & welfare of the child so you want something sorted before then.
Your partner should get together the evidence as advised, & take it along to a family law solicitor for advice on the best way forward. If the boy is okay with the move then the advice may be to just go as the mother is not a parent & there are no orders in place. As a carer, she will have the right to seek a recovery order, which is another reason you need to gather together that evidence in case she does.
As long as you can provide evidence that you are able to provide proper care for the child & are willing to allow him contact with his half brother should the mother agree, then I think your chances are good.