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Daughter wants to change residence - variation in court orders?

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Nearly 12 y.o. daughter wishes to change residence - need advice

Background: I divorced about 11 years ago with one daughter between us which I (after exhausting legal fight) gained shared custody with for approx 10 years. In 2006 I moved interstate with new family and made new orders with holiday access (daughter resided with her mum). Since then, said daughter has been voicing a request to live with me which has been more determined each visit. Last year (2007) I put in for a variation to the orders with a request for a family report - this was prepared by a court-appointed councellor. The councellor's report stated that although my daughter wanted to live with me that she did not believe that my daughter was determined enough. Hence the variation in orders just became a reasonable access application.

Yesterday: during a holiday visit, my daughter (12 y.o. later this year) has stated both to me and her mum that she doesn't want to travel back and wants to live with me. She is increasingly determined - but although she took the initiative to call legal aid, they were unhelpful saying that there was nothing she could do. I am considering applying through legal aid for another variation in the court orders with another family report - this time hopefully she will be listened to. A good part of her reason for wanting the move is that her mother constantly lies to her, manipulates her and represses her, and at the same time she is not getting the quality parental time she needs (as her mum is a career woman, and rarely spends quality time with her).

Would she be able to apply for legal aid (Canberra)? Will the court and councellor take her wishes more into account this time? Will legal aid take this on? Should I wait until she is 12? Sorry for the general nature of this post, but I need advice. Please help if you can.

Will not go!

What would your ex do, if your daughter did not go back?

At the age of 12, most courts would consider your daughter to be too young to make a decision; however if your daughter refused to go, you are not allowed to use any force, to compel her to go. If your daughter refuses to go call the police and ask them what can I do. I have the same issue in court on Monday!

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas. 
I sympathise, and Monteverdi's advice seems sensible, but to file a new application I can't see where you get over Rice and Asplund.

Where is the change in circumstances?

Courts do listen to the children's views

My 12 year old decided that he wanted to go and live with his father.

His views were taken into consideration and the judge said it is normal and written in many books that eventually the child will seek a relationship with the non-custodial parent, in this case his Father.

It was a harsh reality to me when this happened. All I can offer in advice is try really hard for the child to do it the right way, not putting either parent down.

It is a child's right to have a relationship with both parents.

Would her mother let her come and live with you on a trial basis, with you communicating with her on how it is going?
What's with this 12 years of age?

Both my daughters were 12 when they decided to live with the 'other parent'.

My view to this is, that children mature at different ages and the time will come when they are "determined enough" and no authority will have power over them when that time comes.

Hang in there Cornelius.

My daughter tried it at 9 and after a term was begging to come back home. She then wanted to go again late last year but after a holiday there changed her mind. Plus I was going to take it to court to fight and keep her, funnily enough she was happy with that and it helped her change her mind.

When you are swimming down a creek and an eel bites your cheek, that's a Moray.
This happened to me with my son at the same age (he is now 17 and has fabulous relationship with both biological and step parents.)

He went to counselling at the time. I wanted to make sure it was what he really wanted. In my experience at 12, although they think they know what they want they do not realise the implications and the effect it inevitably has on all of their relationships.

I'd suggest you find a good counsellor and offer this as a way for her to be sure about what she wants. It will also show her Mother that you are serious about taking your daughter's wishes into account. She should not object if her motives are the same.
I would advise that you may want to consider agreeing to counselling, subject to the content being inadmissable in court.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
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