@sammy01, I'm not entirely clear as to how I 'am wrong', as you've suggested. I have read over all preceding posts and still have been unable to find any reference to legislation or case law in your responses. Perhaps you can point me, and the original poster, to the legislation or case law which supports your position that the original poster has 'nothing to worry about' if they contravene their orders?
To the best of my knowledge, and you are welcome to prove me wrong, parenting orders remain in effect until a child attains the age of 18 (s 65H of the Family Law Act 1975). A verbal agreement in which the care arrangements are changed, even if discussed in writing, does not override the existing parenting orders, but the court will take into consideration any parenting plans that have since been agreed to when assessing a possible contravention.
The court is at liberty to amend parenting orders where a contravention application has been brought, but it is not the only solution. It may, for example, impose a bond, an order for make-up time, a fine, imprisonment, etc. but the remedy will depend on the seriousness of the contravention and whether or not there was a reasonable excuse for said contravention. The legislation relating to contraventions is found under Division 13A of the Family Law Act, but for the benefit of the original poster, I stress that fines and imprisonment are extremely rare outcomes, and I agree with sammy01's assertion that if a contravention proceeding is brought, the court is probably more likely to amend the orders or impose a bond than anything else.
Should the court decide to amend existing parenting orders as a result of contravention proceedings, it is bound to make orders in the best interests of the child, the considerations for which are outlined in section 60CC of the Act.
In relation to the child's wishes, that section holds that the court must consider
"any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views".
The court generally prefers that the older the child, the greater the weight given to their opinion, and it's certainly true that 12 is considered, in terms of court trends, to be an average threshold, but it's one consideration of many, and it's certainly not law that the court will amend orders, nor is it law that it must make amendments in accordance with the child's wishes because they are of a certain age. To the contrary, there is an abundance of cases whereby the wishes of 14-year-olds have been overridden on grounds that their wishes were not reflective of their best interests when balanced with the other evidence (such as the facts and credibility of the other parent), and where there is conflict between the parents such that they would prefer to contravene orders than try and negotiate an amicable outcome with the other parent first, it becomes even easier to argue that an amendment to orders shouldn't be made based on the child's wishes because it will result in the child being unable to maintain a meaningful relationship with the other parent due to a lack of support and encouragement in the primary household.
What is law is that parenting orders are effective until a child turns 18, that parents may be held liable if they contravene orders without a reasonable excuse for doing so, and that parents with parental responsibility must make a genuine and joint effort (ie mediation) to reach agreement about major long-term decisions affecting the child's care, welfare and development (which includes their care arrangements) before seeking court intervention.
If you want to minimise the risk of contravention proceedings, you might consider attending a child-inclusive mediation conference together with your daughter and the father, which is where the child will have the opportunity to speak to a professional so they can share their wishes with them and then have those wishes communicated to both parents (specifically, the father if he is refusing to acknowledge the child's wishes) so they can consider them while negotiating a parenting plan that is more reflective of existing circumstances. It's harder for a person to argue against a child's wishes when they have been assessed by a professional and discussed in front of a mediator, and it will undoubtedly be less expensive than defending contravention proceedings should the father choose to bring them. It may also position you more effectively to argue that you've tried to negotiate an agreement, thereby increasing the likelihood the court will amend existing orders when dealing with the contravention.
I have aimed to hopefully provide enough
legal information for the original poster to now make their own decision about their situation, such as whether they will risk contravention proceedings on the hope the court amends orders in their favour, as you have suggested, sammy01, or whether they will continue following existing orders while they try and negotiate an agreement with the other parent without court intervention, as expected by the court, and then have a better case to argue in favour of the child's wishes being listened to.
As a final note, on the subjective question of whether or not you should drag your daughter to the car, original poster, perhaps you could explain to her that it's not quite as simple as her just not going, and ask for her co-operation at least until you have tried to sort something out with her dad.
