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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 5361
Experience:  Dip Law LPAB - Sydney based lawyer
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I have 2 daughters 14 and 9... both live with the ex and

Customer Question

Hi, I have 2 daughters 14 and 9... both live with the ex and his new wife.
I have recently found out that the new wife has been smaking my 9yr old and has threatened my 14 yr old and often yells at both my girls for things such as not cleaning fast enough, or for being upset or "sooking" etc... I have tried speaking ro my Ex about this ... and the fact that it is completly out of line and NOT acceptable!
It constantly turns into a massive fight with him getting angry and yelling and punishing my girls for telling me whats going on....
I have also found out that somehow the new wife has gotten my 14 yr old a centerlink health care card in her name only.... and has somehow got my girls onto her medicare card ... and I belive is reciving centerlink payments for both my children. She has had me removed from school contact list and on my 14yr olds private high school enrolment (St Columbans College) she and my ex have submitted A commemorative birth certificate with my last name being one I legally changed over 10 years ago.... and have NOT used ever since and my ex know this fact. They also gave an old mobile number for me from over 5 years ago.... NOW I have had regular contact with them the whole time and refuse to explain why any of this incorrect paperwork has been given... on my behalf. .. and why they did not allow me to fill ANY paperwork regarding myself and my daughter myself!!!
Is any of this sounding legal??
Needless to say things have become horrible between my ex and I and he has yelled at me for asking him to plaese stop all this and just be civil....
He gets angry and has told me that he wants to use a communication book from now on and NOT to contact him or his mobile or his wife mobile.... (not that I did anyway unless it was about the children) and that I am not to go near the house ... (which has still not been settled since we separated) I am to puck up and drop off the girl's around the corner... rain hail or shine ... the girl's can walk. As he will be putting a restraining order on me ... for not communicating with him and his wife...lol
Now I am more than happy to have no contact... as my eldest is 14 I bought her a mobile phone for contact with my children and for if they are ever in an emergency they have a phone ... and for walking ro and from school etc..
My Ex has called me every day since.... so the girl's can talk to me but only lets the phone ring once and hangs up.... I am not going call his phone as his threats would then have some foundation..... hence why i bought my girl's 14 and 9 a mobile phone....
But I can't contact that because the ex has confiscated it. ...
I asked him to give it back but he has refused..
They (Ex &Wife) have also spent ALL of my 14 yr olds high school funds ( ruffly $50,000)
None of this seems right to me and I don'tknow what to do....
My 9yr old gets extremely upset when I take her home hysterical crying and fear of me taking her back... and the 14yr old is also upset neither one wanting me to take them back.
What are my rights and what can I do??
There are no orders of any kind in place....
I feel my identity has been used illegally, more than once.. from the schools to medicare and possibly centerlink.... can I find out??
They have alot of my old paperwork that was left in filing cabinets when thing's were amicable
And what are my rights?
Submitted: 7 months ago.
Category: Australia Law
Expert:  Patrick H. replied 7 months ago.
Hello and thank you for your question.Have you got a formal arrangement for custody/access/parenting or a court order dealing with these or has it always just been an informal arrangement to this point?Also, what state are you in?
Customer: replied 7 months ago.
Hi Patrick,
I'm in QLD and it has always been informal a personal agreement between us.
Expert:  Patrick H. replied 7 months ago.
Hello again.Absent a formal agreement or court orders you will each effectively have parenting rights independently of each other which effectively means that whilst the children are in one parent's care that parent can make decisions about discipline, schooling, and permitting other persons to see the children or have a role in their life.However, if you were to apply to the court for orders addressing the issues you have raised, the court will prioritise what is in the best interests of the children and there is a strong presumption that it is in the best interests of children that they develop or maintain a strong relationship with both parents and the court would likely take strong issue with any action by one parent to interfere with or reduce the other parents role in their child's life unless there are good practical reasons to do so. To that end I expect a court would not approve of your removal from the school contact list or creating confusion amongst third parties as to your status as a parent by using outdated documentation pertaining to your name, address or other relevant details, or the arrangements for picking up or dropping off the children.In relation to the discipline issue, the courts position will likely depend on whether the court considers the disciplinary methods are reasonable, and whilst many people do disapprove of physical punishment for children, it is not the case that it has been absolutely barred under Australian law, however, such discipline is being administered in a severe fashion, or even an inconsistent fashion, a court may well determine it is not appropriate and make orders to prevent such methods being used. In short it comes down to what the court thinks is reasonable in the circumstances.In relation to the school funds, whether the father was entitled to use such funds will depend on whether the funds are effectively a trust, or just an account intended for that use, but not bound to be used in that way. Only a fully briefed lawyer can give you a firm answer on that issue as it will depend on the circumstances in which the account was set up, but it is unlikely to reflect well on the father if he has drawn down such funds without good cause.Before a court will generally hear a parenting dispute of this sort, the parties will normally be required to attempt formal mediation to try to resolve these issues and this can be arranged through an appropriate organisation such as Relationships Australia. Only if the parties are unable to reach a satisfactory agreement will the courts actually become involved. Given the issues involved I would certainly recommend that as a first step. Whilst legal assistance at that stage from a lawyer is not strictly necessary, it may assist you in formulating what you actually want to achieve and what is realistic in your specific circumstances. I would certainly recommend a lawyer be involved if the matter goes before the court, and in any event if it appears the children's funds have been improperly misused.http://www.relationships.org.au/Good luck and Please rate my answer.Patrick
Customer: replied 7 months ago.
The funds were given from her grandmother to the wife on the understanding that the funds were to go into a bank account for my daughter ....
And I am quite active in the childrens lives how has my 14 yr old been issued with a centerlink benefits health care card in her name only?
I am confident that thw wife has been reciving payments for my 14 yr old as ex is not her biological father... ...
I believe she is on a foster care payment?
How is that poasible without centerlink contacting me to verify??And as far as his idea of the communication book ( witch I'm causious of as I susspect some form of fraud in this situation somewhere along the line)
If I have given tbe children a mobile phone then there is no need for this book.Why girls have an actual fear of being taken home my 14 yr old has been thretened ... and my 9 year old feels that she is hated and unwanted.
They are both scared of the ex and his wife. Especially when they drink alcohol.
And how can I find out why my 14yr daughter has her own health care card from centerlink?
Expert:  Patrick H. replied 7 months ago.
If she has misused funds obtained under false pretences from a third party, then this may amount to fraud, but if there is no written record as to the purpose for which the funds were provided, then it may be difficult to prove. Also, if claiming centrelink benefits in connection with your daughter it raises the possibility of fraud against the Commonwealth (which might explain why you were not contacted), but only centrelink can verify that, so you will need to raise your concerns with the Depratment of Human Services (formerly centrelink). No doubt if they uncover fraud they will seek to recover any funds wrongfully paid out, and likely will prosecute this person if they believe she has deliberately misled them as to her entitlement. A communication book, is just a tool and although it might allow a party to make allegations in the book, which can in turn be refuted, they are just allegations and generally the mere fact they are written doubt would not make this any more a tool for fraud than oral allegations. So I would not object to the use of a communication book on that basis, although your ex's insistence on it, when it appears he is making all the phone calls, and undermining your ability to contact your daughter directly, may undermine his credibility and is something the court will likely demand from him an explanation.If your children really want out of staying with their father and his new wife, then you could apply for custody yourself and if so the court is likely to arrange for your children to be assessed by a psychologist or counsellor to work out why they are so unhappy with the current arrangements. The courts do this so that the children do not have to give evidence against their parents directly, but instead can simply discuss their concerns with the court appointed counsellor who in turn will then report on what the children's issue are and whether the children may be better off with one parent or another. The children's preference is not the only consideration of the court, but it can be a powerful factor, especially with older children or with children who express good reasons for their preference.Discussing the children's views is something that can be raised at mediation, but be careful as the courts look very dimly on a parent who appears to have been trying to persuade the children to favour them over the other parent.Good luck and Please rate my answer.Patrick
Customer: replied 7 months ago.
Thank you. .. one last thing... how do I go about getting my girls the phone I bought for them back to them if he continues to refuse??And can I get into any trouble if any documentation with my old name has been used by the ex and his wife?
Expert:  Patrick H. replied 7 months ago.
If it is your phone he should return it to you on request.As a parent though, whilst the children are in his care he can reasonably decide whether and when they can use the phone. If he is restricting it unreasonably then that is something you should raise at the mediation and something the court may make orders about if the parties cannot agree.As to their misusing your old name, etc, it would depend on what they have done with it, and I suppose there are many mischievous ways in which they might make trouble for you, although legally you should not get in trouble with the law for something done by another person, although in practice you may have to do some explaining to if a party has been misled by your ex or his new partner. Ultimately you will just have to wait and see if what they have done causes any problems, but if it does this is something that will not impress the family court and may well count against the ex or his partner in any future appearance before the court.Good luck and please rate my answer.Patrick

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