MOTHER ALLEGES THAT THE CHILD WANTS TO SPEND LESS TIME WITH FATHER
Beacon & Peevey [2020] FCCA 3388 (16 December 2020)
This is an interim parenting proceeding where the mother seeks to reduce the child’s time with the father which is said to be the preference of the child while the father seeks to increase his time with the child.
Facts:
These are parenting proceedings in respect of the parties’ one child, X, born in 2009.
The mother proposes that X spend time with the father in these coming school holidays from midday on 3 January 2021 until 17 January 2021 with the changeovers to occur in Town F at the commencement of and at Hobart at the conclusion of such time. This would be a reduction of one week in the time allocated by her Honour’s orders of September 2015.
Father's position is that he would prefer to maximise his time with X during the forthcoming holidays and at least to maintain the status quo of a three week period pending determination of his substantive application for a period of four weeks in the summer holidays.
The mother argues that the orders from 2015 were made at a time when X was just six years of age. The implication of the mother's argument is that X is expressing strong and mature preferences and that a failure to give accord to those preferences will cause X anger and distress and ultimately may impact negatively on X’s relationship with his father.
The father acknowledges that X may have expressed preferences to vary from the detailed orders made by her Honour in September 2015 but does not accept that the X is making a fully informed, mature or independent statement of those preferences. The father's submissions suggest that he is suspicious that X is making such statements under either direct or indirect influence from the mother and/or without positive encouragement by the mother to facilitate X complying with the current orders.
Issue: Should the court grant the mother’s application?
Law:
- Family Law Act 1975 SS.60B, 60CA, 60CC(2),60CC(3)
Analysis:
It is of some significance that there are unresolved substantive proceedings between these parties where, on the face of the applications, the mother wishes to reduce X’s time with the father and the father seeks to increase that time.
In summary, there remain issues of credit and fact to be tested at a trial. Whilst noting X’s preferences both generally and specifically in respect of this coming summer, the court is not entirely satisfied as to the maturity and rationality of those views where the evidence is equivocal and where the Act itself prioritises children’s relationships with parents. As such, the court is not persuaded, at this interim stage, the Court should move from the orders established by her Honour’s reasons in 2015. That is, there are considerations that are properly left for the testing of the evidence and consideration at the trial. However, if X is of such maturity, objectivity and rationality as suggested by the mother then it might be proper that he negotiate directly with his father in respect of such a discrete issue of flexibility during the summer holidays.
For the Court to alter her Honour’s final orders at this interim stage, and with a trial to be conducted in the near future is not in the child's best interests and not an available option on the balance of probabilities given the current state of the evidence.
Conclusion: Consequently, the mother's interim application will be dismissed and the orders of her Honour of 2015 remain in full force and effect.