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  1. #1
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    Default Australian Law regarding a father's rights when he has chosen to

    Hi all
    does anyone know the law in australia regarding rights/custody of a biological father who has never met or acknowledged his child and is not listed on the birth certficate?

    My ex left when I was 5 months pregnant with my now 6 year old.
    he has never acknowledged her, asked anything about her, asked to see a photo of her or even sent a birthday card to her. he is also not listed on her birth certificate.

    I assumed because of this that I had both sole and physical custody and that he had no rights at all.

    Someone has told me that I actually do not have sole legal or physical custody and the only way that I could have that would be for a court to award that to me...

    I am really confused... in the eyes of the law so I have sole custody?
    does he have rights?
    if so, what rights does he have?
    could he decide to just go and pick her up from school one day or knock on my door and expect to see her?

    could he just decide one day to take me to court for joint custody?

    where do i stand and what are his rights?

    does anyone know?

  2. #2
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    I believe that by law parents have 50/50 equal parenting responsibility unless there is a court order stating otherwise so it's worth going and getting it drawn up in writing. If he's not on the birth certificate I guess he'd better prove he's the father first so if he did try to take your child I doubt he would have a DNA test handy so works in your favour. Best of luck xo

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  4. #3
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    Seeing as he is not on the birth certificate he cannot just waltz into her life unless you let him. He'd need to get DNA proof which could take a long while then would have to go thru mediation or court with you to establish visitation.

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    Technically he doesn't have rights, your child does.

    If you're worried seek proper legal advice, your local women's community legal centre would be a good place to start.

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    He would have rights if he: ascertained that he was the biological father and he went through a period of supervised visits if you pushed for that. The family law court believes in 50/50 parental responsibility (ie decision making for the child). He can not go and pick your daughter up from school atm as there is no evidence that he is the father. Does he know where you are if he wanted to contact you? In my experience, the more difficult it is for the other parent the less they are likely to pursue it.

    A pp said that 'he doesn't have rights, the child does'. That's kind of true. Unfortunately the family law court feels that a child has a right to know both parents and it's up to the one parent to prove that the other parent is not suitable to be around the child (unfortunately the unsuitable parent can be a total scum, emotionally abusive but the family law court still thinks this is an important relationship for the child ).
    Last edited by BbBbBh; 16-03-2014 at 21:15.

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    My understanding is that he is not legally her father, biology or no. He'd have to pursue legal channels such as DNA tests to gain access to her. If he physically took her that would amount to kidnapping; he has no parental grounds until the courts say he does as your dd legally only has one parent- the one listed on her birth cert

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    hi BbBbBh
    yes he has known for the last 6 years how to contact me.
    I have asked him more than once if he wanted to know anything about her or if he wanted to see a photo of her.. and my emails were either met with total silence or he became really nasty, called me a few names..and said.. that he will never be 'IT'S father, because I forced IT on him by refusing to have an abortion.

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    What are you hoping will happen? ATM you are the sole, primary carer and it would take some effort, time and money on his part if he wanted to ascertain paternity. Given what you have said it sounds like he wasn't interested then and he's not interested now.

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    i dont know what i hope will happen
    i feel so guilty when it comes to my child.. that i didnt pick a better man..
    i see the look on her face when she sees her friends with their dads and it makes me feel so sorry for her.
    i worry how my child will feel when she realises that on her paternal side she is a dirty secret.. her cousins don't even know she exists..
    i wonder if her half siblings will ever know about her.
    a part of me wishes he could be in her life if he has changed..
    but then a part of me doesnt.. because of how he has been..
    i dont trust him at all with her..
    he sent me a facebook friends request a few weeks ago..
    which i questioned.. he apologised said it was a total accident and to disregard it.
    my ex is a total coward.. some people have said that was his way of trying to gauge my response of him getting in touch with me..and when it wasnt what he wanted he backtracked.

    im guessing he was trying to see pics of her.. which makes me fee uneasy and nervous..
    but at the same time i know what my kid wants..
    so yea i dont know.. i dont know....
    i just hope i dont make any mistakes that she will suffer for.

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    Hi OP,

    The law is centred around the best interests of the child (not parental rights).

    Although equal shared parental responsibility is the starting point, this does NOT in itself mean parents will spend equal time with their children.

    In determining the best interest of the child, the courts must consider specific primary and secondary factors, such as:

    - the right of children to have a meaningful relationship with both parents, and to be
    - protected from harm

    - the parties capacity to communicate on matters relevant to the child's welfare
    - the physical proximity of the two households (can children maintain friendships in both homes etc)
    - the prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child's adjustment?
    - whether the parties agree or disagree on matters relevant o the child's day to day life (ie. discipline, attitudes to homework, health & dental care, diet and sleeping pattern).

    The courts are also required to take into account parents who fail to fulfil their major responsibilities such as failure to pay child support or to participate in the child's life or having consistently broken contact arrangements since separation.

    Also under consideration would be the 'friendly parent' criterion ie. the willingness and ability of each parent to facilitate and encourage the child's relationship with the other parent.


    Have you kept the emails?

    The first thing that will need to be done of course it to verify paternity. But considering the above considerations, it will be very unlikely that he be granted equal shared time with your DD.

    Just to add, the fact that he now wants a relationship with his DD is a good thing for your DD. It doesn't mean he will automatically be granted equal shared parenting with her, so please try not to worry regarding that aspect. The law considers everything, present and past and he has nothing going for him regarding what he has (or hasn't) demonstrated so far in his daughters life. Try nit to stress, he has much to prove yet!
    Last edited by Ellewood; 18-03-2014 at 10:13.


 

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