BEACON & PEEVEY

[2020] FCCA 3388

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEACON & PEEVEY [2020] FCCA 3388

Catchwords:
FAMILY LAW – Interim parenting – weight to be given to child’s views.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC (2), 60CC(3)

Cases cited:

Goode & Goode (2006) FLC 93-286

Eaby & Speelman (2015) FLC 93-654

SS v AH [2010] Fam CAFC 13

Applicant: MR BEACON

Respondent: MS PEEVEY

File Number: HBC 839 of 2013

Judgment of: Judge McGuire

Hearing date: 9 December 2020

Date of Last Submission: 9 December 2020

Delivered at: Burnie

Delivered on: 16 December 2020

REPRESENTATION

The Applicant appeared in person:

The Respondent appeared in person:

ORDERS

1. That all interim Applications and Responses be dismissed and the orders of her Honour Judge Baker of 15 September 2015 remain in full force and effect until further order.

2. That the matter is adjourned for final hearing in the Federal Circuit Court at Hobart as a special fixture commencing at 10.00 a.m. on Friday 5 March 2021 (noting a time allocation of 1 day).

3. That the parties make, file and serve all affidavit material upon which they intend to rely not later than 14 days prior to the trial date and unless the Court otherwise grants leave, the parties are to each rely upon only one trial affidavit and only one affidavit from each witness.

4. That the party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

5. That within 7 days prior to the trial the parties each file and serve a document setting out:

   (a)     the orders being sought
        (b)    a list of documents to be relied upon; and
        (c)     a brief summary of argument.

IT IS NOTED that publication of this judgment under the pseudonym Beacon & Peevey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

HBC 839 of 2013

MR BEACON

Applicant

And

MS PEEVEY

Respondent

REASONS FOR JUDGMENT

Applications

1. These are parenting proceedings in respect of the parties’ one child, X, born in 2009 (aged 11 years) (‘X’).  There are extant orders in respect of X dating from 15 September 2015 which provided inter-alia:

   (1)That the parents have equal shared parental responsibility for X;

   (2)That X live with the mother;

   (3)That X spend time with the father as follows:

   (a)for two weekends per term, which equates to one weekend per month.

   (b)The visits as per order 7 (a) are to occur on the third weekend and the seventh weekend of each term to evenly space visits within each term, or otherwise as agreed.

   (c)The first visit of each term (the third weekend of the term)  as per order 7(a) occur in City B from 12:00 Saturday until 12:00 pm Sunday, the changeover at the C Cafe in the City B precinct, unless otherwise agreed.

   (d)The second visit in each term (the seventh weekend of term) as per order 7(a) occur in Town D from 8:00 pm Friday until 4:00 pm Sunday, the changeover at E Restaurant when the mother will deliver the child to the father, and the father will return the child to the mother at Town F Cafe, unless otherwise agreed.

   (e)During the 2016 July school holidays for 9 nights, and each alternate year thereafter, commencing on the first Saturday of school holiday period at midday and ending at midday on the following Monday, and so far as practicable to coincide with the father’s time with Y.

   (f)During the 2016 September school holidays for 5 nights and each alternate year thereafter, commencing on the first Saturday of school holiday period at midday and ending at midday on Thursday, and so far as practicable to coincide with the father’s time with Y.

   (g)For the Christmas 2015/2016 school holidays for two blocks of 7 nights, the first period to commence on 27 December 2015 and the second period to commence on 17 January 2016 unless otherwise agreed and so far as practicable the time to coincide with the father’s time with Y.

   (h)For the Christmas 2016/2017 school holidays for one two week block commencing 27 December 2016 unless otherwise agreed and so far as practicable the time to coincide with the father’s time with Y.

   (i)For one half of the Christmas 2017/2018 school holidays commencing 27 December 2017 and each alternate year thereafter, unless otherwise agreed and so far as practicable the time to coincide with the father’s time with Y.

   (j)For one half of the Christmas 2018/2019 school holidays with one two week block commencing 27 December 2018, and a further one week block commencing on the second Saturday after the child’s birthday and each alternate year thereafter, unless otherwise agreed and so far as practicable the time to coincide with the father’s time with Y.

   (k)During the 2015 September/October school holidays for a period of 12 nights so the father can take the child to South Australia, the mother to deliver the child to the Hobart Airport at the commencement of the holiday and the father to return the child to Town F Cafe on conclusion of the holiday.

2. The father brought a new application filed in this Court on 21 February 2020 seeking substantive orders varying the above orders including inter-alia:

   1.  That the orders made 15/9/2015 be varied allowing the child to spend additional time with the father for 4 weeks from the 27th December until 24th January each year effective immediately,

   (a) and that every other year to accommodate the child's birthday when he is with the mother, that time with the father occur in 2 blocks of 2 weeks from the 27th December, unless otherwise agreed.

   2.That an additional 2 nights during the Tasmanian winter snow season period be allocated for the child to go to the snow and learn to ski or snowboard at Town G each year with his father and brother.

   …

   4.That changeovers at all times unless otherwise agreed, be by the child catching the bus to and from the mothers care and that the mother contact the father via text message confirming the child is on the bus and the father reciprocate this on returning the child to the mothers care.

   …

   7. That the mother be restrained from enrolling the child in extra-curricular activities at all times when he is due to be in the fathers care pursuant to the orders.

3. The father seeks various other discrete orders but which may not be relevant for the interim proceedings at this stage.

4. The mother filed a response on 27 April 2020.  She also seeks to 'amend' existing orders.  Specifically, she proposes that X: spends time with the father:

   a. On the fifth weekend of each school term in City B. That for the purpose of this visit, the father collects the child from outside C Café in the City B precinct on Friday afternoon at 4pm and return the child to the mother at 4pm on Sunday outside C Café in the City B precinct.

   b. For the school term holidays that occur in or around April July and September, for 6 nights to commence on the first Sunday of the holiday period at 12 noon and end the following Saturday at 12 noon.

   …

   Christmas

   g. In 2021 and each alternate year after, the child shall spend with the father two weeks commencing on the Saturday before the child’s birthday.

   h. In 2022 and each year after, the child shall spend time with the father two weeks commencing on the Saturday after the child’s birthday.

   i. For all school holiday visits, the changeover occur in Town F at the commencement of time, and outside H Restaurant in Hobart on the conclusion of time.

5. The mother also seeks further discrete orders. 

6. The substantive applications were listed for trial in the Federal Circuit Court at Hobart in the week commencing 28 October 2020 but Court time and resources unfortunately did not permit the taking of evidence.  Equally unfortunately, this left unresolved interim issues for the parents during the forthcoming Tasmanian summer school holidays.

7. Both parties are self-represented but appear experienced and familiar with the Court process and both were well prepared by affidavit and oral submissions in respect of the interim hearing which took place by Global Telephone Meet in the Federal Circuit Court at Launceston on Wednesday 9 December 2020.

8. Specifically, 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.

9. My understanding of the 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.  Nevertheless, and during his submissions the father was able to present a compromise position in that he would accept a reduction in the coming holidays from three weeks to 2 weeks being one week from 27 December 2020 and one week from 10 January 2021 but provided that his 'lost' week was added to his existing one week of time with X in the April school holidays of 2021.

The Evidence

1. Both parties relied on affidavit material which was not tested by cross-examination but made submissions in support of their arguments.

2. The mother argues that the orders from 2015 were made at a time when X was just six years of age and where he has now developed peer group relationships and extracurricular activities which conflict in his time with his father compounded by the issues of travel between City B and Town D in South Eastern Tasmania.  The mother says that X has expressed the desire for more flexibility in his time with his father but with emphasis from X himself on the onerous travel.  In this sense, the mother says that X would prefer that his time or part thereof with his father take place in City B so as to allow X to continue to enjoy the proximity of his relationships and extracurricular interests and to perhaps involve the father.  Specifically, the mother says that X has been invited to spend time from New Year's Eve 2020 for a few days on a camping expedition with a friend and that friend’s family, but that this would the conflict with the Court ordered time for X with his father.

3. 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. 

4. 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.  The father in his submission made vague references to mental health issues for the mother but without any particularisation.

5. The father says that, contrary to the mother's evidence in respect of X becoming angry or distressed at the prospect of spending time with him, his experiences of X spending time in southern Tasmania and together with the father's son Y are entirely positive and without complaint by X.

6. The evidence and the force of the father's submissions suggest that the father's family unit which involves visits by his other son, Y, at times which are anticipated to coincide with visits to him by X are important for all members of that family unit including X.

Other Evidence

1. The parents attended a Child Dispute Conference with family consultant Ms J on 30 April 2020 and a further Child Inclusive Conference with Ms J, and this time including X, on 5 August 2020.  Ms J's reports and observations are prima facie in their conclusions corroborative and supportive of the mother's position.  The following relevant observations come from Ms J’s second report:

   [5] X identified enjoyable, positive experiences in the care of his father as, the presence of the family dogs, being with his father’s girlfriend who he said is “really nice”, playing on the swing on the property of his father and playing with his half-brother, Y aged 13 years. X said he feels great when his father travels to spend time with him in City B so Mr Beacon can be present at his sporting events. X reported it is nice when Y also travels but he is not as needy of his company given that he can be with his friends. X said that camping in City B is now more comfortable since his father bought him a new warm sleeping bag.

   [7] X spoke about a number of undesirable aspects associated with seeing his father in the South of the state. He said that he hates traveling to Hobart and missing his sporting and social activities, particularly for the midterm weekend visit. X believes that travelling by bus would be more onerous compared to traveling by car. X said he and his father usually visit tip/ second hand shops and sleep on the floor of a friend of his father’s home. He believes the travel time is too long given their limited time together spent in activities less appealing than his home based activities.

   [8] X reported feeling anxious when he is staying with his father, particularly in the first three days or so of being there. He said “I don’t feel productive” in that he cannot pursue the usual activities of his choice. X said that he enjoys going to school and “I feel great” after sports events or when he is hanging out with his friends or K.

   [10] X spoke about the features of his father’s home that he finds unappealing. He said he does not like that in the winter the solar power is not sufficient to heat water so they can shower or to charge his phone.

   [12] X’s first preference was that his father would mostly travel to City B to spend time with him and that he would rarely travel to see him. X acknowledged his understanding that this outcome does not seem likely. X was encouraged report what less substantial changes to the current arrangements he might prefer. X reported that he would like to spend just a two week block of time with his father over the summer holiday period preferably to start later than 27 December. X explained that he does not like to leave the celebrations at his mother’s home so soon to be with his father who does not celebrate Christmas. X said he would like to be with his mother or friends to watch New Year’s Eve fire-works every second year.

   [13] X said he would like to spend just five consecutive nights with his father, preferably mid-week, during the term school holiday periods. He would like there to be some flexibility so that he does not miss events that are important to him. X explained that he enjoys playing Tuesday community sports games when he is with his father but his usual team practices or games are more important to him.

   [14] X said he is “scared” of his father, including to talk to him about his (X’s) views or preferences…  X had difficulty further explaining his reasons for feeling scared of his father.

   [16] X is aligned with his mother who has been his primary carer. He impressed in holding an understanding that his first preference to rarely travel to see his father is not likely to prevail. X identifies positive aspects about seeing his father and seems to understand it will be expected that he continues to spend time with him irrespective of the challenges he reported.

2. Ms J provided some recommendations and suggestions including that the current summer holiday time for X with the father be reduced to a two week block.  She continues to suggest that X not be required to travel to spend time with the father during term times and generally encourages flexibility for X’s time with the father. 

Relevant Law

1. The orders that I am asked to make are parenting orders albeit only at an interim stage but where I am to have X’s best interests as my paramount consideration pursuant to s.60CA of the Family Law Act 1975 (‘the Act’). In determining X’s best interests I am to reference the parents’ proposals and the probative evidence to the many considerations set out in s.60CC(2) and (3) of the Act against a background of the objects and principles of the legislation set out in s.60B. Insofar as I am able, given the truncated nature of interim applications and where the evidence is essentially untested, I do reference each and every one of those factors.

2. It is acknowledged that interim hearings provide forensic difficulties for Courts in making findings of disputed fact and credit where the hearing is conducted by way of submissions on affidavit material untested by cross-examination. Nevertheless, and despite these limitations, Courts remain obliged to follow a course of statutory and intellectual consideration consistent with the well-known decision of the Full Court in Goode & Goode[1] where their Honours noted at [68]:

   … The procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is 'significantly curtailed.  Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   [1] (2006) FLC 93-286

3. Further, and as the Full Court observed in Eaby & Speelman[2]  in respect of the difficulties of making findings of fact and credit in interim hearings:

   … That does not mean that merely because the facts are in dispute, the evidence on the topic must be disregarded, and the case determined solely by reference to agreed facts. 

   [2] (2015) FLC 93-654

4. Similarly, the majority of the Full Court in SS v AH[3] observed at [100]:

   … Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [3] [2010] Fam CAFC 13

Consideration

1. The mother relies to a large degree on the statements of preference by X himself that he wishes flexibility in his time with his father, less travel, and less block time in the summer holidays.  The mother says that X at 11 years of age is able to rationalise his own preferences and views as to his relationships with his parents.  The implication of the mother's argument is that to force X against his preferences to spend time with the father and, in particular, to travel to southern Tasmania may cause resentment and thereby damage the relationship between son and the father.  The mother says that it is entirely reasonable and understandable, given that he was only six years old at the making of previous orders, that X will develop peer relationships and extracurricular activities around his home town of City B which will conflict with commitments to spending time with his father.

2. The mother gleans some support in her argument from the family consultant, Ms J, who essentially reports and corroborates X’s preferences as set out above.  Ms J also references the possibility of resentment and damage to the son/father relationship.

3. The Court is obliged to attribute weight to the child's views and preferences and obviously, at 11 years of age, consideration should be given to the maturity and rationality of those views.  Nevertheless, and whilst appropriate weight should be given to X’s views, they are not of themselves determinative of this matter.

1. I also give weight to the prospect alluded to by the mother and Ms J in respect of potential damage to the relationship between X and the father.

2. However, and despite the force and corroboration of the mother's argument, there are factors that also weigh in support of the father's argument.  Firstly, he suggests that the mother may not have necessarily discharged her obligation to objectively encourage and facilitate X’s relationship with him.  Such an obligation is generally accepted as one sitting with a primary parent.  He also gleans support from Ms J's observations where she suggests that X is 'aligned' with the mother.  Further, the father's evidence is that X is comfortable with and enjoys his relationship with his father during their direct time together and that this suggests either a lack of rationality in X’s stated preferences and/or a failure by the mother to fully support, encourage and facilitate X’s relationship with the father.

3. Further, a close reading of Ms J's report suggests that X is equivocal at best in respect of his relationship with his father and that relationship taking place in southern Tasmania.  That is, whilst X was able to articulate some undesirable aspects of visiting his father in southern Tasmania, he was equally able to report positives in that relationship and where it occurs.

4. It is well-established in the Act that the relationship between child and parent is a fundamental and crucially important one emphasised in the considerations for the Court in making parenting orders generally. Suffice to say that Courts make detailed orders for children spending time between their parents in circumstances where those parents are separated and the parents themselves often bring to the table their own residual relationship difficulties. Courts are not so naïve as to think that the vicissitudes of life are such that children's views and preferences will not change over time in respect of those relationships and also that, as they grow older, children will establish relationships and interests that might stand in conflict with Court orders for time between a child and the non-primary carer. It is hoped that when these conflicts arise then there will be mature, objective and balanced discussions between parents and perhaps also the child, if sufficiently mature, in order to bring some flexibility to the table.

5. In the matter now before me, 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. That dispute remains unresolved and the issues and the evidence, including the evidence of Ms J, remain to be tested.  As mentioned above, Ms J's report superficially supports the position taken by the mother but, on closer reading and reflection, also offers some support for the father's arguments including of X being aligned to the mother and not necessarily making rational and objective statements of his own preferences.  This will be tested at the trial.  There is evidence that X enjoys his relationship with his father including aspects of the time in southern Tasmania.  Of some concern in respect of the current discrete interim argument is that X seemingly has an invitation for a camping trip with a friend and that friend’s family over the coming summer period which would conflict with the Court orders for his time with the father.  Suffice to say, without the parents and the child developing a sufficiently trusting, co-operative and flexible arrangement, it would be dangerous to give sanction to each and every circumstance or event for an 11 year old boy presenting conflict with Court orders.

6. 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, I am 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, I am not persuaded that, 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. I do say, 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, in my view, not in the child's best interests and not an available option on the balance of probabilities given the current state of the evidence.

7. Consequently, the mother's interim application will be dismissed and the orders of her Honour of 2015 remain in full force and effect. 

8. Given that the substantive applications were not reached at a previous hearing then I will attempt to find Court time for Mr Beacon and Ms Peevey with priority.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Associate: 

Date: 16 December 2020