MOTHER WANTS HER TEENAGE DAUGHTER TO DECIDE IF SHE WANTS TO SPEND TIME WITH HER FATHER, THE LATTER DISAGREES CONTENDING THAT THE CHILD’S DECISION WILL BE INFLUENCED BY THE MOTHER DEPRIVING HIM TIME WITH HIS DAUGHTER
Leckner & Tomey [2021] FCCA 814 (27 April 2021)
This is a parenting application where the court determines if the time of the parents with their children should be subject to the wishes of the child concerned.
Facts:
The parties to the case are Mr Leckner and Ms Tomey. The children concerned are X born in 2004 and Y born in 2006. The major focus of the case, at this stage, has been on X. X is currently sixteen years and five months old.
It is the mother’s position that X should spend time with her father at the times and on the terms which she (X) thinks fit. Ms Tomey has deposed that she will not stand in the way of X’s wishes and will not attempt to influence the child against her father.
On the other hand, the father seeks that at least a basic core of X’s time with him arise as a consequence of the court’s direct mandate and so not be subject to the expression of X’s own volition. Essentially that there be a mix of time which X must spend with him and time which she can elect to take or not.
It is his position that if there is not such a direction, from the court, given the mother’s domineering personality and longstanding antipathy for him, it is inevitable that X will buckle to her mother’s will and cease to spend time with him, to her long term detriment, regardless of whether this is what she wants or not.
X has clearly indicated that she wants to decide when she spends time with her father rather than be subject to any specific direction.
Issue: Should the court grant the application sought by the mother where the time of the children, in particular X, should be according to her wishes?
Analysis:
Although X is clearly a highly intelligent and mature child, she is still beholden to the strong influence of her mother, who is not likely to take a dispassionate view of X expressing a view, which does not meet with Ms Tomey’s. This situation is likely to represent an impediment to X being able to express her views candidly and openly without fear of retribution.
In these circumstances, given the obvious strength and importance of her relationship with her father, these factors militate in favor of the mix and match approach proposed by the family consultant, which allows X some personal degree of flexibility but also fixes a significant component of time which is not subject to negotiation and frees the child of any obligation to placate one or other of her parents. The court considers that this is the preferable outcome, for X, at this stage, given the endemic conflict between her parents, which is unlikely to moderate in the foreseeable future.
Conclusion: For all these reasons, at this stage, the court proposes to make the orders as proposed by the father.