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NSW Daughter's Rights to Change Original Family Court Orders?

Discussion in 'Family Law Forum' started by myangels1412, 22 October 2015.

  1. myangels1412

    myangels1412 Active Member

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    Hi there,

    We have family court orders for every other weekend, however my daughter's dad moved to QLD 3 years ago and we all made an agreement that that would be too much travel for her, and we would do it once a month. I would drive half way to drop her off and pick her up.

    Now he has moved back to the area ( we still live in different towns) and is insisting we go back to the original orders, which I understand is what normally should happen, however, my daughter turns 14 in a few weeks and has asked her dad if it can be every 3 weeks instead of fortnightly. He won't agree.

    She would not go a fortnight ago and this weekend she is meant to spend with him again. She doesn't want to go. Does she now have the right to decide? Am I breaking the family court orders? Am I meant to physically have to drag her to the car?

    My daughter is devastated.

    Please help.
     
  2. sammy01

    sammy01 Well-Known Member

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    At 14 yrs things get complicated. Yes you'll be breaching the orders. But he will have to apply to court for contravening. If he were posting here, I'd suggest that he not bother. Given the age of the child and the fact that there is an established history of the orders not being followed, a magistrate just might say "Yep, you've contravened but there is sufficient mitigating circumstances to not punish you....."
     
  3. Sophea

    Sophea Well-Known Member

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    If a court were to make new orders now, they would more than likely take your daughters' wishes into account at 14 years of age.
     
  4. myangels1412

    myangels1412 Active Member

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    Thank you both, this was my understanding also. Both my step children decided to stay with their mother at this age, however my husband was respectful of their decision so it went no further. He didn't like it but was respectful.
    This is certainly not about me and my decision not to send her, she would just like some choice in her life, hang out with her friends and look for a part time job etc.

    sammy01- Given the age of the child and the fact that there is an established history of the orders not being followed,

    Do you mean that we both agreed to make changes and therefore not following the court orders?

    If that's the case then the orders also state she was to spend half of every holidays with him, but in all in this time only spent a few with him. He was always too busy :(

    We went over the weekend she wanted to see him, and he refused to come and get her "Because it wasn't his weekend"

    sighs* This is such a hard wall to be up against.

    Thanks again
     
  5. sammy01

    sammy01 Well-Known Member

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    Yep so I reckon that if he wanted to fight this he'd not have a lot of luck. So I don't think you've got much to worry about.
     
  6. myangels1412

    myangels1412 Active Member

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    Thanks sammy01, I appreciate your input :)
     
  7. AllForHer

    AllForHer Well-Known Member

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    I think forum users should remember that people come here looking for the closest version of legal advice they can get without paying for a solicitor, and litigants in family law matters in particular are liable to give significant weight to what is said here.

    With that in mind, I ask that forum users please remember that when it comes to predicting court outcomes, nobody here is any position whatsoever to speculate with any remote degree of accuracy on whether your case will win or lose.

    "I don't think you have anything to worry about" is 100% speculation with less than 50% of the facts, and there has not been any reference whatsoever as to how the court actually deals with contraventions according to legislation, nor how parenting orders can be changed or are affected by changes in circumstances.

    When a person asks: "If X takes me to court, will he win?" The answer is not "Nah, mate, you're good." The answer is always "We don't know, but here's what the law says about your situation and here's what the court has done for others in your situation, so hopefully this information helps you make a decision about what you want to do".

    Please be mindful of this when asking questions here and when responding to them.

    Thanks.
     
    myangels1412 likes this.
  8. sammy01

    sammy01 Well-Known Member

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    allforher. You are wrong.... except for the bit about speculation. But based on the info provided the father will struggle to get new court orders or to force the original poster to re-instate the original orders. That is what the original poster has asked about and that is the answer I've provided.

    Please note that I've prefaced my response with phrases like, I'd suggest, or I reckon, because the nature of the question the poster has asked means that any response is speculation. Factual information is easier. So for example at 12 yrs of age the courts will consider a child's opinion. With that in mind I've suggested at 14 the child's opinion will be given some weight.

    With respect, based on the info provided by the original responder, can you please let me know what bit of my opinion you disagree with? How do you know that I have only been provided with "50%" of the facts? With the facts that have been provided I've made a reasonable assumption.

    Do you have any reason to disagree with me? So for example - do you disagree that at 12yrs of age, the courts will give the child's opinion greater weight? And at 14 even more so?
     
  9. AllForHer

    AllForHer Well-Known Member

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    @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.
     
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  10. sammy01

    sammy01 Well-Known Member

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    Allforher - Thanks, I am glad you agree. You've basically elaborated on the points I've made. The only place where I think our opinions differ is your suggestion to initiate mediation. I disagree. Who initiates mediation will not matter in the perspective of a magistrate if it got that far...

    So, in my opinion, why should the initial poster initiate mediation? If the father is not happy, he can start the process. Remember, he is the one who has now raised the concern, and technically he is the one with a history of breaching the orders. After all, he moved away with the result being that he made the orders impractical...
     

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