This child has lived with the Mother from newborn and the Father has never been involved till child was 7yrs and only for a 1 week holiday per year. Before this he doubted the child was even his and never financially supported the child except once it was declared through child support. Last year the child was supposed to go for school over to his father but instead the father has not sent him back refuses to send him back o his mother and is now pursuing court proceedings for full custody of the child, and this child wants to live with his mother he is 10yrs old.

I don't understand the question. You seem to know how the father takes over access to the child - the mother sends the child to the father without any proof of paternity or visitation/custody agreement filed with the Court and the father refuses to return the child. The father then goes to Court to GET an order allowing him to have physical custody of the child.

That's how the father keeps the child.

That's pretty much it in a nutshell except my sister who is the 'mother' she made a verbal agreement with the father to have him 2nd semester and now h e won't give him back, I can't believe she trusted him just to get shut down like that.

I agree - she was foolish but apparently she trusted him, and I can understand that. She was in a relationship at one time, and it's hard to believe that someone you once cared for would do something like this.

Has she been served with any paperwork?

Has she spoken with a solicitor?

Yes she has rec'd paper work however this was just afidavit's on family member of hers, yes his obviously stooped that low for a defence, but no paper work that says the boy must reside with him therefore she will go to court at the end of this month, she lives in Dawin and the father lives in perth. My sister who is the 'mother' has got legal representation however her lawyer is from perth and has suggested she leave her son with his father... I know it makes u wonder who is the lawyer getting paid to bat for? She doesn't know what else to do?

Yes, I'd question the Attorney's logic.

Your sister has made a lot of bad decisions here. Starting with having sex with this man. Then by not pursuing custody and support through the courts when the child was born. Finally, by trusting this man without legal paperwork.

Hopefully she has now learned her lesson.

But the main question here is what does the father have to justify keeping the child? Is he listed on the birth certificate? Are there any court orders that make him the legal father? The answers to those question will dictate your sister's next step.

Yes he is a big mistake obviously, she knows that now we all do. Funny thing u ask me about his name being on the birth certificate, no it wasn't on their up until last year when he came to Darwin to pick up his son for school and take him back to perth where he (the father) resides .This is when he asked my sister to sign the birth certificate. She thought it was for school purposes and did so and now they are going to court next month in WA when the boy was born in Darwin.

I don't know how Australian law works in this case. But in the US a father can't just be added to the birth certificate after 7 years. I'm not sure what your sister signed (and I suspect you don't either) but it just may have been permission to register the child for school.

Maybe she should get another attorney.

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Originally Posted by ScottGem

I don't know how Australian law works in this case. But in the US ...

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I don't know either, but (sorry to again use a US comparison) here, if the child is in one state for a certain amount of time (here it is 6 months), custody is litigated in that state. So if the child has been in Western Australia for the requisite amount of time, you would have to litigate custody in Perth. If it's similar there, it might be a good idea to consider filing in Darwin ASAP.