Okay, so let's look at what's likely to happen if you or the father do pursue this matter through the Court.
First, you must both attend a family dispute resolution conference to try and negotiate an outcome without Court intervention. In the event you're unable to reach an agreement, an s60I certificate will be issue, enabling either you or the other parent to file an initiating application with the Court.
So, let's say an application is filed with the court, in which you're seeking that the child lives with you and spend time with the father. Your argument so far is that it's what your daughter wants, so we'll roll with that for now.
If the Court is asked to decide, it will determine care arrangements based on what it determines are in the child's best interests. The legislative pathway the Court must follow when determining what's best for the children is contained in section 60CC of the Family Law Act 1975 (Cth): FAMILY LAW ACT 1975 - SECT 60CCHow a court determines what is in a child's best interests
You'll notice that any views the child expresses form only one consideration of many in what's best for the child, and for most children under the age of 12, those views are given minimal weight. For a child of 14, her views will be given weight, but rarely ever does the Court decide what the child's views are based on the reports of the respective parents. To the contrary, section 60CD essentially holds that the most valid way in which a child's views are determined is through an Independent Children's Lawyer or a Family Consultant.
So, what other considerations are taken into account?
There's the capacity of each parent to meet the child's needs. If you're including the child in discussions about care arrangements that should be carried out with the father, rather than the child (for example: "When I asked her why she agreed"; "in my eyes if she wants to stay then I will do as she asks"), then it could be argued that you are inappropriately burdening your daughter with disputes that should be reserved for the grown-ups, contrary to her emotional needs. It could also be said that by saying to the child that she doesn't have to go back to her dad's if she doesn't want to, that you're inadvertently discouraging her relationship with him.
There's also the impact on the child of the orders you're requesting. She's undoubtedly settled at her current school, has friends there, and has developed some community roots there. It also sounds like the father's residence has been her primary residence for some time, but also that 50/50 has been in place for a while. It also sounds like she's enjoyed a regular pattern of time with each parent, and currently spends plenty of time with the siblings that live at her two respective households, so how is it better for her to uproot all of that so she lives primarily with you?
Now, your willingness to disrupt the child's routine at her request is somewhat telling, as well - if the Court were to make orders in your favour, what's to say you won't refuse to send the child to the father's house in the event the child says 'I don't want to go to dad's today'? Who is to say you won't frustrate the child's time with her dad as another effort 'not to let them get away with it'?
I'm not siding with the father, and quite frankly, using a false lawyer to intimidate you is unethical and below the belt, but I am trying to provide some insight about what kind of issues you might come up against if this matter were to proceed to Court.
Instead of going vigilante on the father and getting back at them by withholding the child and disrupting her routine, you're better off following the proper avenues and organising a family dispute resolution conference with him to discuss what the child has told you and try and negotiate whether or not it's in her best interests for the current care arrangements to change. Relationships Australia even offers child-inclusive mediation conferences, which entails a professional speaking with your daughter to determine her wishes and presenting them to you and the father so they may be taken into consideration at your family dispute resolution conference.
First, you must both attend a family dispute resolution conference to try and negotiate an outcome without Court intervention. In the event you're unable to reach an agreement, an s60I certificate will be issue, enabling either you or the other parent to file an initiating application with the Court.
So, let's say an application is filed with the court, in which you're seeking that the child lives with you and spend time with the father. Your argument so far is that it's what your daughter wants, so we'll roll with that for now.
If the Court is asked to decide, it will determine care arrangements based on what it determines are in the child's best interests. The legislative pathway the Court must follow when determining what's best for the children is contained in section 60CC of the Family Law Act 1975 (Cth): FAMILY LAW ACT 1975 - SECT 60CCHow a court determines what is in a child's best interests
You'll notice that any views the child expresses form only one consideration of many in what's best for the child, and for most children under the age of 12, those views are given minimal weight. For a child of 14, her views will be given weight, but rarely ever does the Court decide what the child's views are based on the reports of the respective parents. To the contrary, section 60CD essentially holds that the most valid way in which a child's views are determined is through an Independent Children's Lawyer or a Family Consultant.
So, what other considerations are taken into account?
There's the capacity of each parent to meet the child's needs. If you're including the child in discussions about care arrangements that should be carried out with the father, rather than the child (for example: "When I asked her why she agreed"; "in my eyes if she wants to stay then I will do as she asks"), then it could be argued that you are inappropriately burdening your daughter with disputes that should be reserved for the grown-ups, contrary to her emotional needs. It could also be said that by saying to the child that she doesn't have to go back to her dad's if she doesn't want to, that you're inadvertently discouraging her relationship with him.
There's also the impact on the child of the orders you're requesting. She's undoubtedly settled at her current school, has friends there, and has developed some community roots there. It also sounds like the father's residence has been her primary residence for some time, but also that 50/50 has been in place for a while. It also sounds like she's enjoyed a regular pattern of time with each parent, and currently spends plenty of time with the siblings that live at her two respective households, so how is it better for her to uproot all of that so she lives primarily with you?
Now, your willingness to disrupt the child's routine at her request is somewhat telling, as well - if the Court were to make orders in your favour, what's to say you won't refuse to send the child to the father's house in the event the child says 'I don't want to go to dad's today'? Who is to say you won't frustrate the child's time with her dad as another effort 'not to let them get away with it'?
I'm not siding with the father, and quite frankly, using a false lawyer to intimidate you is unethical and below the belt, but I am trying to provide some insight about what kind of issues you might come up against if this matter were to proceed to Court.
Instead of going vigilante on the father and getting back at them by withholding the child and disrupting her routine, you're better off following the proper avenues and organising a family dispute resolution conference with him to discuss what the child has told you and try and negotiate whether or not it's in her best interests for the current care arrangements to change. Relationships Australia even offers child-inclusive mediation conferences, which entails a professional speaking with your daughter to determine her wishes and presenting them to you and the father so they may be taken into consideration at your family dispute resolution conference.
