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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 5422
Experience:  Dip Law LPAB - Sydney based lawyer
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My Brother did not know he had a child until four years ago

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My Brother did not know he had a child until four years ago when the mother contacted him in relation to maintenance she wanted to claim. he agreed to pay on the results of a DNA test- the child was five at this time. She is now nine.
The child was living with the maternal grandmother in SA. He is in Tasmania. Once the Dna results confirmed he was the childs father- he began to pay and fly her and grandma/mother to visit School holidays etc. The childs mother- in the last 18 months retrieved her from the grandmother and the child then lived with the mother-
The childs mother rang in distress and my broyher agreed to them both coming to Tasmania-
6 weeks ago they arrived to my brothers house-
He enrolled her at local school etc.
Te mother stayed for four days then has taken off- so they , my bother and daughter have not seen her four 5 weeks- apparently shes in Victoria- but she has rang the child once a week.
As my brother is not mentioned on the birth certificate he is wondering if there is a temporary order ??? that he can apply for? to basically prevent the mum from taking her away again-
the child has some behaviour issues that were picked up at school- from possibly being here there and everywhere- and he wants to keep her in a stable enviroment-
does he have any rights to keep her?? and what is the best course of action to take- without causing further drama or effect on the child- the child is 9.
Is there any agreement with mother or is there no stability at all?

What are the issues with the mother and why is she not more consistently involved with the child?
Customer: replied 4 years ago.

no - no agreement at all- theyve only been here - mother and daughter for 6 weeks in total.

She has made lifestyle choices , includes participation in illegal activities- My brother doesnt want her brought up in that enviroment- as very unhealthy for child-

As Far as ive been told - the mother says to child, she is stuck in melbourne and run out of money-0 should be home in couple days-



Although your brother is not on the birth certificate, this does not mean he does not have all the normal parental rights of any other father, and indeed the birth registry record can be fixed if he can confirm he is the father with a DNA record.

If he wants to keep his child either on a full time basis or at least on a shared custodial basis then he would need to apply to the court and the court would decide the issue based on what the court considers is in the best interests of the child.

Given the mothers 'lifestyle' choices, and apparent failure to look after the child in a responsible and consistent way, it would seem your brother may have some prospect of being granted primary custody of the child, and depending on how serious the mothers issues are, might even be given exclusive custody if that's what he wants, although at this stage if it has only been a few weeks that the child has been staying with the father, a court may be unconvinced that the child is now properly settled with the father.

If your brother wishes to pursue legal custody then he would need to engage a family lawyer as his prospects of success will depend on having a well prepared and presented case and his chances will be much greater if he has a lawyer represent him.

In the meantime, I suggest he sets out a chronology of the mother and father's history with the child, including who has had custody at different times and when she left the child in the care of others. I would also make a pros and cons list for each parent setting out any relevant issues which may indicate particular fitness or unfitness as parents for both your brother and the mother; and the sort of lifestyle advantages that each can offer the daughter (e.g. a stable home, drug free environment, good schooling, etc).

Because the court will have to weigh so many factors only a fully briefed lawyer with a detailed understanding of each of the parents circumstances and history with the child can give you firm advice as to hos strong a case your brother has, but on the face of it your brother's case appears strong enough to warrant the expense of properly briefing a family lawyer to review the circumstances in detail.

I trust the above assists.

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Thank you and good luck.


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