Question: I'm in the process of initiating mediation with my ex partner because I want to be able to come to an agreement so that I may see my son and all. My ex and her family are stoping me from seeing my son altogether or to even have come to spend the night or weekend with me and my family. They say I have no rights to take him and that Im not allowed to. Is that true ?
Am I not allowed to get my son at all, is court the only way for my son to spend time with me? By the way we were never married as well and my son is almost 1 years old.
Great question, I’m going to try and answer it as best as I can, but remember this is no substitute for legal advice based on your particular circumstances.
Personally, I think that if a mediation solution to a problem is possible then that can usually lead to better outcomes. for everyone involved. Mediation allows the parties to a dispute to be heard and understood in a way that the courts can’t. Reason being that once you start a legal process it can get quite nasty because the law is a blunt tool to deal with the very intricate things that cause a relationship to fail. That's just a personal opinion though, and a general one. Ultimately you want to make the best decision based on your finances and circumstances, someotimes its mediation, sometimes it's court.
This is what the law has to say regarding parental responsibility for children.
The law that is responsible for parental responsibility of children is the Family Law Reform Act 1995 (Cth) and the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). It may help your understanding of the law just to read the Acts so you’ve got an idea as to how they are structured and the kinds of things they do and don’t cover. Most of the things you mention like the custody of children and access to children are provided for in the Acts.
Legally speaking, the law just takes it as a given that it is in a child’s best interest if both parents have equal and shared responsibility as parents; because of this legal presumption courts have an obligation to divide the custody of a child equally amongst the parents or as equal as is possible. For example a parent may get more than half the time strictly speaking, but the other parent would get substantial time in return. These things are tricky and a court takes this in to consideration.
Having said this, its not just about time because it takes more than time to raise a child, there is an obligation for parents to make sure they work together for the benefit of the child in question when dealing with big parental issues like what religion should your child be, or healthcare decisions and so on. Because we’re talking about the life of a young child here the courts take a lot of things into consideration, parent’s past behaviour with each other and if one parent is likely to facilitate a close relationship between the child and the other parent.
BUT, ULTIMATELY, the court is most concerned with what is best for the child. That is the court’s main and prevailing interest here. Sure, the law presumes that both parents having equal time with a child is ideal, but this will only be given if it also means that this will be in the best interest of your child.
So, if there are allegations of child abuse or family violence from one parent to another or from parent to child then the court will consider this when making custody decisions. Courts do listen to what kids have to say with regards to their living arrangements, but this depends obviously on wether the child is able to speak for themselves, etc.
Family stuff is really, very complicated. Not because of the law, the law is in black and white, it’s because of the incredibly complex feelings and relationships tied up in family disputes.
To recap, legally there is a presumption that children should have equal time between both their parents but only if this is in the best interest of the child. If one parent is withholding access or threatening to take a child away then that is in itself quite serious, and potentially devastating for you and your child. If mediation may not be a workable option it would be advisable that you contact your local Legal Aid service or a family lawyer.
You can start your search here: www.liv.asn.au