Beniston & Dowling - [2023] FedCFamC1F 978

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Beniston & Dowling [2023] FedCFamC1F 978

File number(s): BRC 6468 of 2018

Judgment of: JARRETT J

Date of judgment: 17 November 2023

Catchwords: FAMILY LAW – PARENTING – Where child did not spend any time with applicant for a period of 10 months – Where respondent responsible for child’s resistance to seeing applicant – Where entrenched and protracted parental conflict – Where child is closely bonded to and will benefit from a meaningful relationship with both parents – Where some evidence that parties can make major long-term decisions jointly – Where an equal time arrangement has been in place since prior orders and while judgment was reserved – Order for equal shared parental responsibility – Order for equal time

Legislation: Family Law Act 1975 (Cth) ss 4AB, 62G, 65DAC(2), 65DAC(3)

Division: Division 1 First Instance

Number of paragraphs: 137

Date of hearing: 8, 9, 10 February 2023 & 15 March 2023

Place: Brisbane

Counsel for the Applicant: Mr McGregor

Solicitors for the Applicant: DV Lawyer

Counsel for the Respondent: Mr Alexander

Solicitors for the Respondent: Evans Brandon Family Lawyers

Counsel for the Independent Childre’s Lawyer: Ms Gajic-Pavlica

Solicitors for the Independent Children’s Lawyer: Smithson Lawyers Gold Coast
ORDERS

BRC 6468 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR BENISTON

Applicant

AND:
MS DOWLING

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

17 NOVEMBER 2023

THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The applicant and the respondent have equal shared parental responsibility for decisions concerning the major long-term issues for the child X born 2014.
3.To commence consistently with the pattern of living arrangements implemented by the orders of 10 February, 2023 and so as not to interrupt the continuity of that pattern, X live with each party on a week-about basis with changeovers to occur each Monday:
(a)at X’s school at the conclusion of school on school days; and
(b)at McDonald’s Restaurant, Suburb B at 4:00pm on non-school days;

4.For the term 4 summer holidays, X spend time:
(a)in even-numbered years, with the applicant for the first half and with the respondent for the second half of the holidays;
(b)in odd-numbered years, with the respondent for the first half and with the applicant for the second half of the holidays.

5.For the purposes of term 4 summer holidays:
(a)school holidays shall be deemed to have commenced at 4:00pm on the last day of school and end at 4:00pm on the day prior to the day school returns (regardless of whether a public holiday or pupil free day) and will be the holiday dates for the school that X attends; and
(b)unless otherwise stated, all changeovers during school holidays shall occur at 3:00pm at McDonald's Suburb B.

6.If X is not otherwise spending time with the applicant on the applicant’s birthday, X spend time with the applicant:
(a)if the applicant’s birthday falls on a non-school day, from 9:00am until 5:00pm; and
(b)if the applicant’s birthday falls on a school day, from after school (or 3:00pm) until 6:00pm.

7.If X is not otherwise spending time with the respondent on the respondent’s birthday, X spend time with the respondent:
(a)if the respondent’s birthday falls on a non-school day, from 9:00am until 5:00pm; and
(b)if the respondent’s birthday falls on a school day, from after school (or 3:00pm) until 6:00pm.

8.X spend time with the party he is not otherwise spending time with on his birthday:
(a)if X’s birthday falls on a non-school day, from 1:00pm until 6:00pm; and
(b)if X’s birthday falls on a school day, from after school (or 3:00pm) until 6:00pm.

9.X spend time from 3:00pm on Christmas Eve until 8:00am on Boxing Day with:
(a)the applicant in even-numbered years; and
(b)the respondent in odd-numbered years.

10.If X is not otherwise spending time with the applicant, X spend time with the applicant from after school (or 3:00pm) on the Friday immediately preceding Father’s Day until before school (or 9:00am) on the Monday following Father’s Day.
11.If X is not otherwise spending time with the respondent, X spend time with the respondent from after school (or 3:00pm) on the Friday immediately preceding Mother’s Day until before school (or 9:00am) on the Monday following Mother’s Day.
12.Each party must:
(a)inform the other of any change of address, telephone number, mobile telephone number or email address within 24 hours of such a change;
(b)not denigrate the other party, their partner or family to or in the presence or hearing of X;
(c)not abuse, harass or intimidate the other parent;
(d)inform the other as soon as reasonably practicable of any serious accident, illness or emergency involving the child and the name of the treating doctor or medical facility;
(e)not discuss these proceedings with X;
(f)not discuss changes or variations to these orders with X or in the presence or hearing of X;
(g)not discuss any changes to these orders with the other party during changeovers or at any school, sporting or extra-curricular event.

13.Both parties are at liberty to attend any school, sporting or extra-curricular event in which X is involved.
14.Both parties may obtain directly from any school, doctor, health professional or counsellor all records, notes, documents and information in relation to X and this order is authority for all schools, medical practitioners or counsellors to provide to either party all such information at the requesting party’s cost.
15.The parties will communicate using a parenting application agreed between them in writing, and failing agreement the Talking Parents application and for this purpose both parties will within seven (7) days from the date of this order download and register for the Talking Parents application.
16.Unless otherwise agreed between the parties in writing, X shall not continue to attend for counselling upon Ms C, psychologist.
17.Should either party wish to travel with X more than 300km from the party’s residential address but within Australia, they must provide to the other party at least 24 hours prior to any travel the following:
(a)a detailed itinerary for the trip including the dates of travel, the addresses of each place where X will be staying and a contact telephone number; and
(b)if X will be travelling by plane, a copy of the return airflight ticket.

18.Should either party wish to travel with X overseas they must provide to the other party at least 30 days prior to any travel the following:
(a)a detailed itinerary for the trip including the dates of travel, the addresses of each place where X will be staying and a contact telephone number;
(b)a copy of the return airflight ticket for X; and
(c)details of any internal flight tickets whilst travelling.

19.Unless otherwise agreed in writing between the parties, the travelling parent must:
(a)ensure X contacts the other party at least once every second day during the travel;
(b)ensure X only travels to countries that are signatories to the Hague Convention; and
(c)only travel during times when X is ordinarily in their care.

20.Both parties shall do all things reasonably required to ensure X holds a current passport upon being notified that a party wishes to travel with X overseas and the cost of such passport is to be shared equally between the parties.
21.The child’s passport will be held by the respondent.
22.Upon the applicant providing the items in order 17 above, the respondent shall release X’s passport to the applicant and at the conclusion of the applicant’s travel with X, the applicant shall return X’s passport to the respondent within 14 days of returning to Australia.

IT IS NOTED:
A.Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these orders.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:

These proceedings relate to the parenting arrangements for X who is now nine years of age. X is also known, mainly by his mother and her side of his family, as Y. In these reasons I shall use X. Proceedings have been on foot concerning X’s parenting arrangements since June, 2018.
Immediately following his parents’ separation in July, 2017 X lived in an arrangement that saw him spend an equal number of nights in each household, but most of his days with his mother, the respondent. That arrangement broke down in May, 2018 and he has mostly lived with her ever since. The applicant, X’s father, commenced this litigation seeking reinstatement of the equal time arrangement in June, 2018 although the outcome for which he now contends has changed.
There has not yet been a final determination of these proceedings. There have been two interim hearings, three family reports, a “CIC memorandum”, one tranche of hearing days, a reopening of proceedings and a further tranche of hearing days, the disqualification of the trial judge from further hearing the case and the transfer of all outstanding applications to this court.
At the commencement of the hearing before me there were orders in place for X to spend time with the applicant, in week 1 from Friday after school until the commencement of school on Monday and in week 2 from after school Thursday until commencement of school on Friday with handovers to be at school or if not a school day at an organisation called D Family Services. There was to be telephone time between X and the applicant once each week. There were also orders for time to occur on Father’s Day and on school holidays.
The trial of the proceedings before me did not complete in the three days I had allocated to it. I adjourned the proceeding part heard to a date about five weeks hence and made orders, until further order, relevantly as follows:
3.The applicant and the respondent have equal shared parental responsibility for decisions concerning the major long-term issues for the child [X] born […], 2014.
…
5.The child live with the parties on a week-about basis, with changeovers to occur each Monday:
(a)at the child’s school at the conclusion of school on school days; and
(b)at McDonald’s restaurant Suburb B at 4:00pm on non-school days.
6.For the term 4 summer holidays, the child spend time with the parties as follows:
(a)in even-numbered years, with the applicant for the first half and with the respondent for the second half of the holidays;
(b)in odd-numbered years, with the respondent for the first half and with the applicant for the second half of the holidays.
7.Notwithstanding any earlier orders, the child spend time with the parties on Christmas Day as follows:
(a)in odd-numbered years with the respondent from 3:00pm Christmas Eve until 8:00am Boxing Day;
(b)in even-numbered years with the applicant from 3:00pm Christmas Eve until 8:00am Boxing Day.
8.Notwithstanding any earlier orders, the child spend time with the respondent from the conclusion of school Friday to 4:00pm Sunday on Mother’s Day weekend.
9.Notwithstanding any earlier orders, the child spend time with the applicant from the conclusion of school Friday to 4:00pm Sunday on Father’s Day weekend.
The terms of these orders were agreed between the parties following an indication from me that I considered such orders appropriate, at least until further order, given the statements made by each of them when cross-examined. X had the benefit of an independent children’s lawyer and the independent children’s lawyer indicated consent to orders in those terms as well.
THE PROPOSALS
In final submissions, the independent children’s lawyer argued that orders that were more or less in the same terms as the interim orders I had made would be appropriate to finally determine the application. There were some variations and additions, but the thrust of them was the same – the parents should have equal shared parental responsibility for long-term decision making and X should live equally between their households.
Whilst initially seeking different orders, at the conclusion of the trial, the respondent argued for orders in the same terms as those made until further order on 10 February, 2023 – again with some minor amendments.
The applicant continued to seek the orders sought by him at the outset of the trial – namely that X should reside with him, he should have sole parental responsibility and after a 3 month moratorium on time with the respondent, X should spend increasing amounts of time with her until a final position of alternate weekend time from after school on a Friday to before school on a Monday was reached. He also proposed special occasion time and school holiday time with the respondent. The particulars of the orders he seeks are set out in his outline of case document filed on 2 February, 2023.
THE ISSUES
The critical issue in the case is whether, should X continue to reside with the respondent, he will have the opportunity to have a meaningful relationship with each of his parents, or whether, to achieve that end, it is in X’s best interests for him to live with the applicant.
The conclusion I have come to is that it is in X’s best interests that he live equally with each of his parents and that they have shared parental responsibility for long term decision making for him. I consider that an arrangement more or less consistent with the current interim orders best reflects what is in X’s best interests. What follows are my reasons for that conclusion.
THE APPLICANT
The applicant is about 31 years of age. He lives at Suburb B in Region E with his present partner Ms F (spelled differently by the s 62G report writer). They have one child together, G who is now several months old. Ms F has two other children, H aged 11 years and J, aged 14. According to the applicant’s trial affidavit filed on 25 January, 2023 H lives with the applicant and Ms F. J lives with her father and spends some weekend, school holiday and other special occasion time with Ms F and the applicant, although previously she had been living in a 50/50 arrangement with her father. I have no evidence from Ms F.
The applicant is employed in sales and has been employed by the same employer since 2019. His work is home based.
The applicant was a problematic witness. He regularly needed to be reminded to answer the questions asked of him. He was defensive and aggressive. Some of his answers made no sense having regard to the questions asked of him. Although I have not disregarded the applicant’s evidence in its entirety, where necessary, I have carefully scrutinised and looked for evidence of assertions that he has made.
THE RESPONDENT
The respondent is 37 years of age. She has Country K and Country L heritage and is an Australian citizen. She regularly travels to Country K, often accompanied by X.
The respondent claims to hold employment in “various capacities”. She deposed that her parents assisted and continue to assist, with caring for X from time to time as a result of the nature of her work.
She is not re-partnered and lives with her parents, X’s maternal grandparents, at Suburb B in Region E.
At interviews conducted on 29 June, 2021 for the purposes of a report pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the respondent told Ms M, the family consultant engaged for that purpose, that she was in a relationship with Mr N and had been for three and a half years. He has two (2) children, aged 10 and aged 8. They were living together until June, 2020 but the respondent decided to move in with her parents so she could prepare for “the Family Court trial”. Apparently, they remained in a relationship until a couple of weeks prior to the interview with Ms M when it ended, but they remain “close friends”. She had a pregnancy with Mr N early in their relationship however suffered a miscarriage.
I formed the view that the respondent was not a frank witness. I have referred later in these reasons to some examples of the respondent’s evidence that calls her creditworthiness into question. Again, although I have not disregarded the respondent’s evidence in its entirety, where necessary, I have carefully scrutinised and looked for evidence of assertions that she has made.
THE PARTIES’ RELATIONSHIP AND THE LEAD-UP TO PROCEEDINGS
The applicant and the respondent first met in 2012 when they were both working in Region E. In 2013 they began living together in a unit owned by the respondent’s parents. The respondent fell pregnant with X not long thereafter.
The parties were married in 2013. X, the parties’ only child, was born in 2014. The parties separated on 13 July, 2017.
Initially after separation, the parties negotiated a near equal-time arrangement whereby X spent 7 nights per fortnight with the applicant. X was three years old at the time, but the parents were able to negotiate a time arrangement that did not see X have any long blocks of time away from the respondent’s care while still allowing him to develop a meaningful relationship with the applicant. Indeed, the respondent’s observations were that X was happy in the applicant’s care. Unfortunately, this initial cooperation was not predictive of positive future co-parenting.
X’s parenting arrangement was changed by the respondent in May, 2018. The circumstances of the change were the subject of high conflict between the parents. The respondent deposes that X was struggling with the time and his “development commenced to regress”. It was unclear what she means by that statement, or her later statements about “regression and deterioration in [X]”. She also gave evidence that X refused to, or was difficult to, separate from her to spend time with the applicant and that he said negative things about the applicant. The respondent’s evidence about these matters however, is at odds with what she told a family consultant in 2019 (more of that later in these reasons).
The applicant, on the other hand, swears that X was coping fine with the equal time arrangement.
In any event, in May, 2018 the respondent unilaterally implemented a new parenting arrangement, with X spending four nights per fortnight with the applicant. The respondent gave evidence that she noticed a positive change in X following the implementation of this arrangement, though he would still express verbal opposition to spending time with the applicant. For reasons that will become clear, I do not accept the respondent’s evidence about things she claims X has said or done in relation to the applicant. There are many instances where the respondent has given evidence about those things, but I am satisfied they are either fabrications, or that if they were truly said or done by X, they were not a true reflection of X’s wishes.

The applicant alleges that on 7 June, 2018 the respondent slapped him in the face in front of X at a changeover. The applicant filed an application for a protection order, which he later withdrew upon the respondent entering into an undertaking to be of good behaviour. The terms of that undertaking are not clear on the evidence before me. In any event, the respondent denied the allegation and it was not put to her in cross-examination. I make no finding about whether the respondent physically assaulted the applicant in mid-2018 by slapping him in the face.
Following the implementation of the new arrangement, both parties retained solicitors and the applicant commenced these proceedings on 13 June, 2018 in the Federal Circuit Court of Australia (as it was then known) seeking for a return to the equal time arrangement.
SINCE THESE PROCEEDINGS COMMENCED
After the commencement of these proceedings the parties attended upon Ms O, clinical psychologist, for the purpose of preparing a short report about X’s care arrangements. The applicant attended upon Ms O on 21 August, 2018 and the respondent on 11 September, 2018. Ms O prepared a report dated 12 October, 2018.
Ms O was not called as a witness in the proceedings. Her report was annexed to an affidavit of the respondent. I have therefore not had the benefit of her evidence being challenged under cross-examination. The report from Ms O also preceded the final hearing(s) of this matter by several years. I have therefore determined to not give significant weight to the report and the recommendations contained therein given that they have largely been overtaken by time, parenting arrangements that have subsequently been ordered by the court and by the parties’ own conduct. Nonetheless, the report provides important context to the parties’ historical conflict.
Ms O noted that X was a “delightful and happy child who appeared comfortable and secure in his attachment with his Mother and his attachment with his Father”. The report also noted both parents as loving and competent, with no deficits noted in either parent’s interactions with X. Ms O recommended that X spend four nights per fortnight with the applicant. This recommendation was solely based on X’s age and emotional development.
Following Ms O’s report, the parties attended mediation with their legal representatives and reached a consent agreement for interim parenting arrangements in line with Ms O’s recommendations, as well as for their continued attendance upon Ms O. This agreement was made an order of the court on 31 October, 2018. The orders provided for the parties to have equal shared parental responsibility for the major long-term issues affecting X. He was to live mostly with the respondent and spend time with the applicant as follows:
a.        For Term 4, 2018:
i.        In Week 1 of a 2 week cycle:
1.        From 8.30am Tuesday until 7.30am Wednesday; and
2.        From 5.30pm Saturday until 7.30am Monday;
ii.In Week 2 of a 2 week cycle from 8.30am Tuesday until 7.30am Wednesday;
b.        For Term 1, 2019 or as otherwise recommended by [Ms O]:
iii.In Week 1 of a 2 week cycle from conclusion of school Friday until commencement of school Monday; and
iv.In Week 2 of a 2 week cycle from conclusion of school Thursday until commencement of school Friday.
Provision was made for school holiday time in blocks with the applicant, electronic or video communication between X and the respondent during those holidays and there was an order permitting the respondent to travel with X to Country K over part of the Christmas break.
Despite the agreement, however, handovers were the subject of continual dispute. There were arguments about recording the changeovers and about the return of certain items carried by X between households. The respondent frequently had her parents attend changeovers. That did not seem to help matters. Rather, it inflamed the situation.
The respondent swears that following the 2018/2019 school holidays, she saw “regression” in X’s security and confidence in that he was very clingy and spoke negatively of his time with his father. She did not say what he said with any specificity. Ms O subsequently recommended that X should not be spending more than seven consecutive nights away from the respondent. The parents abided by this recommendation during the 2019 year when X began attending prep.
A further consent interim order was made on 19 March, 2019. That order continued the arrangements for parental responsibility and the school term time X would spend with both parents established by the earlier order. Further orders were made for special occasion and holiday time for the 2019 year. The parties were able to agree upon an order for X to travel with the respondent to Country Q for about 10 days in the middle of 2019. There was also an order for the parties to complete a post separation parenting program and to continue to attend upon Ms O.
There was a dispute about the applicant recording the respondent at a changeover on 25 April, 2019. There were further disputes around the application to renew X’s passport in May, 2019 (despite the parties’ earlier agreement for X to travel with the applicant to Country Q).
On 6 June, 2019 the applicant took X to see his psychologist, Ms P without informing the respondent of his intention to do so. The applicant also provided Ms P with the first report of Ms O. Ms P produced a report which was critical of Ms O’s process and recommendations. Ms P was not called as a witness in the proceedings.
Ms P’s report was provided to Ms O, and on 29 July, 2019, Ms O concluded her engagement with the parties. Ms O produced a second report dated 26 September, 2019 also annexed to the respondent’ affidavit. In it she noted that the applicant was critical of her and of her processes. Most notably, Ms O’s second report recorded her opinion that the parties were reactive with each other, held negative and rigid views of the other and had no trust or respect for each other as parents.
On 29 July, 2019 the parties attended another mediation. They did not reach a resolution of their parenting dispute.
In August, 2019 X had a school sports event. It was also a changeover day. Disaster ensued. The respondent swears that despite her best efforts, X refused to go with the applicant. The parties argued and it is uncontroversial, that the applicant threatened to call the police. It is also uncontroversial that X was present while all this occurred. In cross-examination, the applicant suggested that though he threatened to call the police in front of X, X did not hear because he was not paying attention. I reject that explanation. It is obvious that X would have heard the applicant threaten to call the police. I accept the respondent’s evidence that X was upset after the applicant threatened to call the police.
There was another incident in September, 2019. It is representative of the nature of the parties’ co-parenting relationship at that time and the inability of each to consider what was best for X. It was an occasion of handover. The respondent swears that X was sick and had to be carried to the applicant’s car. She swears that applicant refused to pick him up and carry him to the car and so she held X in her arms. The applicant called the police and put the phone “on speaker” in X’s presence. The police told the respondent to put X down. She did and X ran away into a nearby park. He was eventually recovered and went with the applicant.
This incident underscores the lack of insight that each of the parties had, and I find continue to have, into their behaviours and the effects of them on X. X was able to walk to the applicant’s car on his own, as is evident from the fact that according to the respondent, he ran away when she put him down, yet she carried him to the applicant’s car to reinforce his (or perhaps her) negative emotions towards the applicant. The applicant reinforced the parental conflict by calling the police in X’s presence instead of just taking X from the respondent. Each was determined to have their own way no matter the cost to X.
The parties returned to court on 1 October, 2019 and conducted a further interim hearing. At the conclusion of that hearing certain orders were made by consent between the parties. They agreed that the orders made on 19 March, 2019 would remain in force. They agreed to injunctions restraining each of them from using any device to record or film in any manner any person in attendance during handovers for X. The applicant was ordered to use her best endeavours to ensure that her father ceased recording or filming changeovers. Detailed orders were made for handovers. Those orders required handovers to occur at an organisation called D Family Services and provided a detailed regime by which the parties were to conduct themselves for the purposes of X moving between each of them. General orders permitting overseas travel, on certain conditions, were also made. Judgment on the balance of the interim application was reserved.
That reserved judgment was delivered on 17 October, 2019. The orders dealt with a rearrangement of X’s holiday time with each of his parents. Further orders were made that provided, amongst other things, that:
(a)all further communication between the parties occur via a smartphone application to be chosen by them;
(b)each party should complete a post separation parenting course (if they had not already done so); and
(c)in the event that any parenting issue arose between the parties, they were to attend family dispute resolution (with Legal Aid Queensland) before approaching the court for any assistance to resolve the issue that had arisen.
In November, 2019 in a rare show of co-operation, the parties agreed for X to repeat prep in 2020.
On 20 November, 2019 the parties attended upon Mr R for interviews for a report pursuant to s 62G(2) of the Act that had been ordered on 28 August, 2019. The report issued on 30 December, 2019 but did not find its way into the evidence before me. Mr R was not called as a witness before me. However, the respondent was cross-examined about various aspects of Mr R’s report. In her cross-examination she agreed that Mr R had recorded certain observations about X and the applicant. She agreed that, having read that report, the relationship between X and the applicant was very good, X had no problems separating from her and he did not appear to be having any anxiety about spending time with the applicant. This is despite the matters that I have set out earlier in these reasons concerning the respondent’s alleged observations of X being anxious when having to go into the applicant’s care.
Further, in cross-examination the respondent said that the changeovers for X to pass into the applicant’s care were changed by order made on 1 October, 2019 so that they took place at a supervised contact agency. Although her evidence was confusing and confused, it seems that she ultimately asserted that the change was necessary because the changeovers were being filmed by the parties and that was causing friction between them. The change in changeover location was not to assist with X’s behaviour and his separation anxiety. This is something which seems to be inconsistent with her earlier evidence that it was X’s behaviour that led to the breakdown in the time spending arrangements agreed between the parties, although consistent with Mr R’s apparent observations about the relationship between X and the applicant.
In November, 2019 the respondent learned that the applicant had ceased contributions towards X’s private health insurance. The applicant was challenged about this in cross-examination and asserted that he did so because he was not provided with a secondary card for X. The pettiness continued.
An independent children’s lawyer was appointed in these proceedings on 14 February, 2020.
The parents attended yet another mediation on 13 July, 2020 with no resolution of the issues between them.
In October, 2020 the school at which X was attending for Prep, T School, engaged Ms S, an educational psychologist, to prepare a report about X’s learning strengths and weaknesses. Her undated report was annexed to the respondent’s trial affidavit. The report noted X had some difficulties with learning. Most pressingly, it stated that “[X] will benefit greatly from parents and educators working cohesively together to build his confidence and independent learning skills/habits”. Sadly, neither parent heeded the importance of this statement, instead choosing to continue the conflict between them over X and his arrangements.
X commenced year 1 at T School in 2021.
There was a suggestion on 9 February, 2021 when this application came before the court for directions on that day that the parties had been able to reach agreement about parental responsibility, school holidays, special days, schooling and some other matters. They were directed to bring in minutes reflecting their agreement by no later than 4.00pm on 9 March, 2021. No orders were forthcoming in accordance with that direction.
On 28 June, 2021 the parties attended interviews for yet another s 62G report, this time with Ms M. Ms M released a report dated 26 July, 2021. Her report is in evidence before me and she was called as a witness by the independent children’s lawyer. I had the benefit of observing her in cross-examination.
Of X’s relationship with his father, Ms M observed that X greeted his father with a hug. They both engaged in imaginative play. X was observed to be quiet in his father’s company which was different to the high energy child he was while with his mother. Whilst he was very compliant and restrained, he was nonetheless affectionate towards Mr Beniston who displayed praise and interest in what X was saying or doing.
Of X’s relationship with his mother, Ms M observed that he said hello to the family consultant while clinging onto his mother. He ran around with a high amount of energy however he would quickly come back to his mother and request attention or a hug. Ms M observed that X also interacted very well with his maternal grandparents.
Ms M observed that the difference in X’s behaviour in the care of both parents could fit with the rationale provided by the maternal family that X has anxiety about seeing his father, but she considered it difficult to opine about this matter. She thought X displayed obvious loyalties to both parents.
Ms M recorded that X expressed general happiness about his mother’s household and his father’s household. He did not express any major concerns in either household. Although he said he gets upset when he goes to his father’s house he could not articulate why. He told Ms M that “I feel safe at my mum’s house but not my dad’s because there is not as much food there, at mum’s house there is so much food”. He said that “both, my mum and dad yell at me”. He told Ms M that he would like to spend less time at his father’s house but was unable to articulate any reasons for this and does not know how often he would like to go. As to the (then) impending arrival of the applicant’s new child X said, “I don’t want to have the baby because I just don’t like babies for some reasons… well I just know because my friends have them and they don’t like them and I know I will be the same”.
Between 4 and 6 August, 2021 a defended hearing was conducted by Microsoft Teams before a judge of the Federal Circuit Court of Australia. Judgment was reserved.
What followed that trial was a complete breakdown in time between X and the applicant. Throughout the month of August, 2021 the respondent did not facilitate court-ordered video calls between X and the applicant. The applicant continued to call until 17 November, 2021 with every call going unanswered.
Of interest is the respondent’s evidence that on 26 August, 2021 she “made an entry in the Communication App (Talking Parents) that the Father and I were using at the time to raise some of the matters which X had raised with me concerning the changes in the Father’s household”. She claimed that X had communicated to her that these were the matters which were the foundation for him being upset and expressing opposition to visiting the applicant. She records that she told the applicant:
(a)that the applicant and his partner had moved into the applicant’s two bedroom unit together, where a cot had been placed in the applicant’s bedroom and X’s bed had been removed from his room and a bunk bed installed in its place where he was to share with the applicant’s partner’s daughter, H;
(b)that X had complained that on two occasions H had been nasty to him, calling him names and causing him to start crying. One of the things that H called X was “a dummy”, which she considered was very upsetting to X given his difficulties at school, his need to repeat a year and get additional learning support at school;
(c)that X had raised H’s behaviour towards him with the applicant, but the applicant did nothing, leaving him to cry on his own;
(d)that X was displaying concerning behaviour at her home, acting out, having intense emotional bouts. X had said he felt “unsafe” at the Father’s home; and
(e)she suggested a reduction in time with the applicant to what she had proposed at the trial and that during the time X spent with the applicant, she suggested that H stay with her biological father on those nights.
Not surprisingly, the applicant refused to engage with the respondent about these matters. The respondent gave no evidence before me about just what it was that X said to her about these matters. All I have are the characterisations by her as I have set out above.
On 27 August, 2021 X was due to changeover into the applicant’s care. There were some initial difficulties in getting X to changeover at D Family Services. These difficulties were exacerbated by the respondent remaining at the changeover venue with her parents against the instructions of the supervisor. The changeover was abandoned and it was agreed that they would attempt changeover again the following morning. However, the respondent did not attend the changeover with X the next morning. Her evidence was that X was too resistant to going and she could not make him attend.
X spent time with the applicant on the evening of 2 September, 2021 after the applicant picked him up from school. According to the respondent’s evidence, that collection occurred without issue. It is beyond curious then why, despite there being orders for continuing overnight time, this was the last overnight time X spent with the applicant until the end of 2022. During this period at times when changeover was to happen at D Family Services, the mother did not attend with X. At times when the applicant was to pick X up from school, the respondent kept X home, allegedly because he was sick. X was meant to spend school holiday time with his father between 26 September, 2021 and 4 October, 2021 but did not do so.
In late 2021 the applicant was to collect X from school. There was some difficulty with changeover and the respondent contacted both her parents and asked them to attend the school. They attended and there followed a verbal altercation between the applicant and the maternal grandfather which resulted in the applicant leaving the school grounds as the changeover was unworkable. On the only evidence before me, it is clear that the maternal grandparents caused more problems than their presence solved. They were clearly there at the instigation of and as the agent of the respondent to ensure that X did not go into the applicant’s care. The school notes of this occasion are consistent with that proposition.
Following the incident at the school, the applicant contacted the respondent asking to do a supervised changeover at D Family Services so that X could spend some time with him. The respondent refused, instead suggesting a supervised visit, which the applicant refused.

On 18 October, 2021 the applicant filed an application for leave to reopen his case so as to lead evidence of the respondent’s conduct following the trial held in August, 2021. That application was heard and determined on 18 November, 2021. The court granted the applicant leave to reopen his case. A further updated family report was also ordered. The court made further orders for X to spend time with the applicant and for all changeovers to take place and be supervised by D Family Services. Very prescriptive orders for the parties’ conduct at changeovers were made.
The respondent again attended the school in October, 2021 and interrupted changeover of X into the applicant’s care. The respondent reported that X had told a school employee “I do not want to go with my dad. He is my worst nightmare. Call my mum. She is in the office”. X went home with his mother.
Following this incident, the respondent wrote to the applicant and asked him, notwithstanding orders of the court, to not attend school for changeover again. When she did not receive a response, she took matters into her own hands and picked X up from school early so that the applicant could not collect him.
On 10 January, 2022 the independent children’s lawyer organised for an updated s 62G report to be prepared by Ms M. Interviews for the report were conducted on 6 June, 2022.
Ms M recorded her discussions with the applicant before X was interviewed or spent time with the applicant. Ordinarily, this would not attract much attention and if worthy of repetition in reasons for judgment, it would be summarised. However, I find it necessary to set out Ms M’s evidence about these exchanges in full (errors in the original):
Summary of information obtained from [Ms Dowling] dated 6 June 2022 at [U Contact Centre], [Town V]
…
Current Situation
…
6.34I then asked [Ms Dowling] about how [X] was feeling today and his emotional state. She replied, ‘I cannot imagine what it must be like for [X] to not want to have contact with one of his parents, I really cannot but I really just put it down to he is a smart boy, he is a sensitive boy and he is just trying to make his life a bit easier and conflict free’.
6.35I asked his opinion/view about speaking with me and she replied, ‘he does want to talk to you but he wants me to be in the room and I told him that is not how it works, I think he is just really nervous that he is going to be forced to see his dad and I said you don’t have to, it did say only if you want to on the schedule .. .I said please let [Ms M] know. I think he is just worried about being lied to and cheated by people. When he went to [D Family Services] he didn’t want to go and was being forced and that’s why [Ms Z] said that is not going to happen and she did them, I think now he has a trauma response about being lied to and forced to do something he doesn’t want to do, at this stage, seeing his dad’.
6.36She explained [X] is also anxious that he may say the wrong thing and may therefore have to see his father.
6.37She spoke about co-parenting not being an option with [Mr Beniston] and there is too much conflict between them. She does not trust [Mr Beniston] and believes ‘every opportunity he has to finger point he does, I want to protect my son and not have to spend $900 to simply seek therapy for my son’.
…
Summary of initial observations between [X] and his mother dated 6 June 2022 at [U Contact Centre]
7.1Mr (sil. Ms) [Dowling] arrived at the centre with her mother in the morning and [X] and when greeting them I observed [X] to smile at me and say, ‘hello [Ms M]! You are at a new office’ and he was jumping around excited and I commented on his minions outfit.
7.2[Ms Dowling] and [Ms BB] then commented that [X] had been anxious and had a ‘huge meltdown’ this morning however I did not observe any evidence of this with [X]. [Ms Dowling] then knelt down in front of him and reassured him that he was fine and there was no need to be nervous or concerned, despite not appearing to be upset in any way.
7.3I encouraged them to enter the foyer and we spoke about [X] speaking to me on his own which he agreed to do. [Ms Dowling] repeated to [X] a couple of times that he should not be concerned and stated, ‘you get to decide, it is up to you, [Ms M] just wants to talk to you, you don’t have to see your father if you don’t want to’. [Ms Dowling] commented that [X] was very anxious and worried about coming today and did not want to see his father. [Ms Dowling] then crouched down and reassured [X] that he would be fine. I did not observe [X’s] presentation to at all be commensurate with the response from his mother and grandmother.
When Ms M commenced her interview with X, he told her that he was “a bit nervous and worried you are going to make me see my dad” however he was unable to tell her why he felt this way. He presented with a lot of nervous energy. When asked if he wanted to meet his half‑brother he said “it doesn’t make sense that he wants me when he has another baby now, he is not really my brother, I don’t want to see him, I don’t think he has the love to spread between the two of us”. He then volunteered “the Court forced me to do it, to see dad and said, it’s science, it’s science”. When asked what he meant by this he was unable to articulate a meaning. Ms M recorded that when asked why he was no longer spending time with his father he said “he is nice in public but at home he acts mean all the time”. When asked what that means he said “he doesn’t let me change the TV channel”.
X told Ms M he might like to see his father if Ms M was there. However, he then smiled broadly while telling her he did not want to see his father and his mother told him he did not have to. Ms M did not observe any genuine signs of anxiety or distress in his behaviour or presentation at any time during her interview with him.
Interestingly, following her interview with X, Ms M informed Ms Dowling and her mother that X was willing to spend some time with his father. She observed Ms Dowling to look down and shake her head and Ms BB to audibly gasp and appeared very surprised and concerned about this information.
When the applicant, his partner and their new child entered the observation room, X was observed to keep his distance initially and covered his head with some pillows. However, he was observed to be smiling and peeked out from behind the pillows giggling and smiling at the applicant from behind the pillows. X cuddled his father and smiled and laughed heartily at various photos on his phone. According to Ms M, X completely relaxed after about 10 minutes and was very calm in his father’s presence. She observed mutual affection between them, good eye contact, familiar and enjoyable conversation and a genuine connection between them. She opined that X clearly had a very warm bond with the applicant.
Ms M recorded her discussions with the applicant and her mother after X spent time with the applicant. Again, I find it necessary to set out Ms M’s evidence about these exchanges in full (errors in the original):
Summary of observations between [X] and his mother dated 6 June 2022 at [U Contact Centre] (60 minutes)
10.1While I walked [Mr Beniston] into the foyer, [X] ran straight to the room where his mother was and hugging into his mother and she stated, ‘what’s wrong [X], you did really well, it’s OK, what’s the matter, it sounded like you were having lots of fun with dad’. I observed [X] to not be crying or upset and to be hiding his face into his mother I and I stated it was time for their contact visit. [Ms BB] then told me this is the problem they have at [D Family Services] and this is why they gave up.
l0.2[Ms Dowling] then asked for everyone to stop talking and I noted [X] was absolutely fine just seconds ago and enjoyed spending time with his father, [Ms Dowling] then firmly told me ‘that’s the problem [Ms M], it is prior and the aftermath that are the problem with me, the person who is the most trusted carer and attachment or whatever all of these professionals are telling me I am, that face in there with [Mr Beniston] was not what he is like, that was him being grander than life and he is not like this in real life, that is not what he is like, just give me a moment’.
10.3[Ms Dowling] then told [X] he got to get a Minion’s present from his father and asked him to show her and told him ‘you did really well, what is wrong? What is going on? talk to me’ and he then quietly stated, ‘I had to see mv dad’ and his mother repeated this and told him she was told he didn’t have to see him, stating, ‘I am sorry [Ms M] made you see your dad’. [Ms Dowling] then spoke about how good it is that [Ms Z] at [D Family Services] does not force [X] to go.
10.4[X] then climbed under the conference table and I observed [Ms Dowling] to climb under with him and I could see [X’s] face, which was not upset at all, was not crying and was looking at me repeatedly. I observed [Ms Dowling] to effectively place her entire body over [X] under the table to cuddle him and to tell him he was fine however he did not present as upset at all. I looked at [X] during this period and he smiled at me briefly and then stating, ‘I am just so sad I was made to see my dad at all’.
10.5We then went into the contact room and [X] again told his mother he felt sad because he was forced to see his father. [Ms Dowling] engaged in this conversation for some time rather than redirect him in any way. [X] stated, ‘that was zero percentage of fun’ and [Ms Dowling] repeated this statement as well as everything else he told her. She then apologised to [X] for having to see his father and that he did a good job.
10.6I eventually redirected [X] to the Ring Toss game and he chose to play his new Minions game. They then played with this game and identified the various names of the Minions. [Ms BB] had brought an entire tray of Kinder Surprise chocolate eggs and [X] enjoyed eating a number of these over the course of the contact period.
10.7For the rest of the time, I observed [X] to engage well with his mother in imaginative play in the room with various different toys and games. We then started packing up the room together and [Ms Dowling] praised his efforts in doing so.
10.8Following the end of our visit, [Ms Dowling] requested to speak with me briefly and [X] was waiting with his grandmother.
10.9[Ms Dowling] exp1ained ‘I just want to make it clear, my intentions at the time, that I would like to work towards getting it back on track, by supervised contact on the weekends with the father at a centre and increase his time, [D Family Services] said they were able to do this and I am happy to pay for half of the costs’.
In cross-examination before me, the respondent alleged that Ms M was wrong in her observations of X. In fact, the respondent alleged that X was having a ‘meltdown’ which she described further in cross-examination the next day as crying inconsolably, having a red face, speaking nonsense, repeating words in a heightened voice, running and hiding under covers, throwing pillows and hiding under them. This directly contradicts the observations of Ms M that X was not crying. It was not put to Ms M that her observations of X were in any way incorrect. It beggars belief that X would have a meltdown of that magnitude after spending time with the applicant only for Ms M, an expert witness, to not record that in her observations. I find that the respondent’s description of X having a 'meltdown was simply not true and a deliberate fabrication by her.
During the course of his interview with Ms M, the applicant alleged that the respondent had allowed X to watch the applicant being cross-examined during the trial which took place via Microsoft Teams in August, 2021. The applicant deposed that X had told him that he had seen him on “Zoom” and watched him being cross-examined and he described him being in his work clothes. The applicant says that X also told him that he had seen them arguing about the orders on “Zoom”.
The respondent denies that she permitted X to be present during the trial and witness the applicant’s cross-examination. However, during his interview with Ms M on 6 June, 2022, X told her that he had watched a “Zoom” meeting with his father at court and his mother was okay with him watching this. In response, the respondent suggests that the applicant has somehow influenced X to make these assertions but given that he had spent no time with the applicant between September, 2021 and the interviews with Ms M, such a suggestion is fanciful.
I find that the respondent permitted X to be present during the trial of the proceedings and in particular the applicant’s cross-examination in August, 2021. By doing so, the respondent demonstrated a concerning lack of insight into what was best for X.
The application was initially set down for further final hearing for two days commencing 26 September, 2022. However, on 26 September, 2022 the application was listed for final hearing for four days “on a date to be fixed”. Additionally, on 27 September, 2022 the judge hearing the application in the Federal Circuit and Family Court of Australia (Division 2) disqualified herself from further conducting the proceedings. At that point, an order was made transferring the application to this court.
From September, 2021 until that point in time, X had spent little time with the applicant. The respondent contended that X simply would not go to spend time with the applicant and she was bereft of any ability to have him do so.
On 5 December, 2022 I ordered that X spend time with the applicant on two separate occasions, for the changeover for each occasion to be supervised by a family consultant and for the changeover to take place at the Court Children’s Services of this court. I ordered that the family consultant supervising the changeovers prepare a brief written report of the interactions. I also made an order permitting X to travel with the respondent to Country K for the purposes of a holiday. The principal application was listed for hearing for three days commencing 8 February, 2023.
The time ordered on 5 December, 2022 between X and the applicant occurred and the family consultant supervising the changeovers prepared the required report on 15 December, 2022. The first supervised changeover took place on 12 December, 2022 and the second on 15 December, 2022.
In his report of the changeovers, the supervising family consultant, Mr W, observed that the respondent told him that she had “prepared” X for what was going to happen today. She said that this included reminding him of advice they had received from a psychologist upon whom they had both attended. Mr W observed X to sit with the respondent and as Mr W spoke to the respondent X buried his head into the respondent’s body and said repeatedly, “I don’t want to go”. The respondent reminded X of what they had discussed earlier about him having to spend time with his father. Mr W asked the respondent to walk X into the childcare room. X continued to say he did want to see his father but Mr W did not think he was distressed. X was allowed to settle in the child care room and then the respondent returned to say her good-byes. When she did so, Mr W observed X to cling to her when she said it was time for her to leave. X asked her not to leave and wrapped his hands around the respondent’s waist. Mr W says that the respondent kept reminding X of what they had talked about earlier and she unwrapped his arms. The respondent left.
Mr W says that after the respondent left, he met with X and explained what would be happening. X became teary and asked repeatedly that Mr W call his mother, but Mr W explained that his mother had left the building. In response to Mr W explaining that he had to go with his father, X said, “No, she told me I can call her and she will come back. She wouldn’t lie”. According to Mr W, X continued to voice his opposition to seeing his father, curled himself up on a chair and hid his face from him. Despite this, Mr W did not observe X to be emotionally distressed. Mr W records (errors in the original):
9.When the father entered the room, [X] hid his face with his hands. The father sat next to [X] and asked after him. [X] ignored his father but he remained seated next to him. The father reacted in an appropriate manner. He encouraged [X] to take deep breaths and relax. He did not rush [X] and appeared to understand his child’s needs at this time.
10.After about five minutes, I left the room. I returned after a further five minutes. [X] was standing and interacting positively with his father. [X] was seen showing his father a toy he had and I observed the two of them ‘joking around’ with [X] trying to lift his father off the ground. The emotional atmosphere between was a buoyant one. [X] was responsive (as opposed to avoidant) to his father and there was no indication that he was anxious in his father’s presence. The father and [X] discussed their plan for the remainder of the day, and I noted that [X] appeared comfortable enough to make suggestions. The father and [X] left together.
Mr W’s notes of the second changeover are also instructive:
13.I met the mother and [X] in the general waiting area and informed them that child care was not available. I explained that I would take [X] to a room where his father is waiting. [X] was observed to repeat the behaviour he displayed at the first changeover (buried his head into and behind his mother) but it was noticeable that his did so in a less intense and dramatic manner. I also noted that [X] did not verbalise any opposition.
14.When I prompted [X] to come with me, the mother stood up and told [X] it was time for him to go to his father. [X] stood up and wrapped his arms around his mother’s waist. The mother continued to say to [X] that she had to leave and she took hold of his wrists and loosened his grip on her. I noticed that [X] had a neutral facial expression and he was not agitated or distressed.
15.When I took [X] into the room where the father was, he spontaneously approached his father, sat next to him, and immediately engaged in conversation with him. [X] appeared relaxed and comfortable. The father asked [X] what he would like to do and [X] replied, “Can we go to [Location AA]”. The father asked [X] if he would like to go surfing and swimming. [X] said he would and he made reference to doing the same during the previous visit. [X] said, “Yeah that was fun”.
Mr W recorded that based on X’s ‘reunion’ behaviour with the applicant, he was surprised by the fact that it had been some six or so months since X had spent any time with the applicant when he conducted the first of the two changeovers. After taking due account of the fact that he had a narrow scope of involvement in this matter, Mr W nonetheless thought that “[X’s] adjustment to seeing his father, noting how quickly he did so, the lapsed time since he last saw his father, and the sudden change in his demeanour once separated from his mother” was remarkable. Mr W thought that the significant change in the quality of X’s emotional state when reunited with his father permitted him to make a number of observations, namely:
(a)the change in X’s demeanour that he described has to be considered in the context of not only him being reunited with his father but also of him being separated from his mother;
(b)X displayed some anxious-type behaviours during Mr W’s observations but he interpreted these behaviours as a response or a way of coping with a specific situation, that being the prospect of separating from his mother in order to spend time with his father; and
(c)he formed the view that X is not anxious or fearful of spending time with his father, rather it seems that X’s mother is anxious about X spending time with the father and that X is very aware that his mother feels this way. According to Mr W, X loves his mother and is emotionally connected to her and as such, he ‘picks’ up on her emotions and understandably, he does not want to cause her any worry or concern. It follows then that X has ‘learnt’ to develop a response when he is faced with seeing his father that is ‘loyal’ to his mother.

The principal application came on for hearing on 8, 9 and 10 February, 2023. On 9 February, 2023 I made final orders dealing with the outstanding financial application between the parties. Evidence was taken on the parenting application.
One of the witnesses was Ms C, X’s psychologist, who appeared on subpoena. Ms C deposed to seeing X once every 3-4 weeks, and meeting with Ms Dowling at least six times, and Mr Beniston twice.
Ms C had come to the view that X has symptoms of anxiety that at times looks like separation anxiety, but in reality he uses his mother to feel like he can cope with his anxiety. She said whilst he had anxiety separating from Ms Dowling in their session of 26 May, 2022, that was not so much of an issue as at the time of final hearing. She also said he presented with a great fear of going to his father. Her evidence was that X has a strong, secure attachment to his mother, a moratorium on time with her was likely to cause him emotional harm, and that time with his father should progress in a gradual way starting with some overnight time.
Counsel for Mr Beniston cross-examined Ms C. In the course of that cross-examination, Ms C acknowledged that she did not explore Ms Dowling’s behaviours at changeovers as a possible cause of X’s anxiety and did not ask Ms Dowling what preparation she undertakes for changeovers. Ms C was also cross-examined in relation to Ms M’s report. In particular, she was asked what sort of message it would send to X for Ms Dowling to cuddle him under a table immediately after spending time with Mr Beniston in the way in which Ms M had observed. Ms C’s response was that this would “just send the message that he’s okay”. I found this response disingenuous.
Ms C further noted in cross-examination that she did a case formulation about from where X’s fears arose, but that she did not explore the possibility of X’s fears arising from Ms Dowling’s conduct. She also never reality tested X’s “Worry scales” which were created for X to express his worries, and which listed “living with dad forever” as the most worrying of all. This was despite Ms C’s therapy continuing after reading Ms M’s report. Ms C acknowledged that bringing court proceedings to the attention of X would heighten his anxiety.
The hearing of the parenting application did not complete in the three allocated days and it was adjourned for further hearing to 15 March, 2023. However, at the conclusion of the hearing on 10 February, 2023 I indicated to the parties than I intended to make further interim orders concerning X’s parenting arrangements and I invited the parties to settle the terms of an interim order in accordance with the discussions I had with their counsel. As a result, with the consent of the parties, I made the orders that I have set out in the introductory paragraphs of these reasons.
The application returned to me on 15 March, 2023 for a further day’s hearing.
The applicant filed a further affidavit deposing to events he says that occurred between the two tranches of hearing. After considerable argument, I permitted the applicant leave to rely upon that affidavit. The respondent declined an opportunity to file her own affidavit in reply. The applicant’s affidavit was disingenuous in that although it contained a litany of complaint about the respondent, he did not depose to the fact that the time ordered in February, 2023 had proceeded strictly in accordance with that order. All his affidavit demonstrated was, unsurprisingly, that the parties’ conflict continued. Cross-examination of the applicant on the affidavit confirmed his disingenuity, defensiveness and obfuscation.
CONSIDERATION
Both parties claim that they see benefit in X having a meaningful relationship with the other parent. Although they both glibly say it, I harbour doubts that they each fully believe that X will benefit from a meaningful relationship with the other parent.
I am satisfied, however, that he will and I so find. Despite the conflict that exists between them, each of X’s parents have much to offer him. Each of them is an accomplished person in their own right and X has much to gain from a meaningful relationship with each of them.
Neither party suggests that X needs protecting from a risk of harm by reason to being exposed to abuse, neglect or family violence. In my view, however, there is such a need. The uncontroversial facts are that X has not been able to spend unimpeded time with the applicant since the parties’ separation. Whilst there have been some periods during which his time with the applicant has happened more easily than others, by and large that time has been difficult to organise and implement. There have been periods of time where X has spent no time with the applicant because the respondent has withheld X from him, in particular there was no overnight time from 2 September, 2021 until 12 December, 2022, and, save for the interviews by Ms M, no time at all (supervised or otherwise) between 11 February, 2022 and 12 December, 2022. Her reasons for doing so do not withstand scrutiny. They are self-serving and designed to further her narrative that X should remain in her care. I do not accept that she genuinely believed that X’s best interests demanded that he be withheld from the applicant at those times. Her reasons were contrived. Her actions come within the definition of family violence as defined in s 4AB of the Act and I so find. There is a need to protect X from that type of family violence in the future.
X has been interviewed by Ms M for each of her reports. On the first occasion X:
(a)expressed general happiness about his mother’s household;
(b)expressed general happiness about his father’s household;
(c)did not express any major concerns in either household;
(d)said that he became upset when he went to his father’s “due to all these reasons” which seemed to be a reference to X having to go to bed early in his father’s household and not being able to sleep because the bed is “so screechy there and the doors are too and it irritates my ears”;
(e)said that “I feel safe at my mum’s house but not my dad’s because there is not as much food there, at mum’s house there is so much food”;
(f)said that “both, my mum and dad yell at me”;
(g)told Ms M that he would like to spend less time at his father’s house but was unable to articulate any reasons for this and did not know how often he would like to go; and
(h)said that “I don’t want to have the baby [being a reference to the impending birth of the applicant’s child with Ms F] because I just don’t like babies for some reasons… well I just know because my friends have them and they don’t like them and I know I will be the same”.
During the course of the interviews for the second report, X told Ms M that he did not want to have contact with his father for a number of reasons which all appeared to Ms M to be very minor, such as not liking the television channel or him “being mean”. X was unable to articulate to Ms M what this meant.
Ms M thought that X expressed a disproportionately negative reaction to having contact with the applicant. Ms M postulated that “this fear is perhaps due to him not wanting his mother to know he acknowledged or had fun with his father. That is, if he dare articulate that he had fun he will have to face consequences and time with his father may be withheld. The easiest option for X in this complex situation, is to withdraw and refuse any time.” Ms M’s observations of X and his comments are consistent with the subsequent observations of Mr W that I have set out earlier.
No party, nor Ms M, suggested that any weight should be given to X’s views, particularly given his age. I do not give them any particular weight.
Ms M observed X with both parents. With the applicant, he was observed to be affectionate, though quiet and restrained. With the respondent, X had a high amount of energy though would quickly run back to her for a hug. Ms M accepted in cross-examination that the difference in observations of X in the parents’ care may well be an expression of anxiety based on the fact that he expected animosity between his parents.
X expressed general happiness about both households. Although he said he gets upset when he goes to his father’s, he was unable to articulate any real reasons for this view.
The parties accept, Ms M’s evidence bears out and I find that X has a good, strong, positive relationship with each of his parents. His relationship with the applicant remains intact despite the difficulties concerning time between X and his father from time to time. Mr W’s observations are consistent with that conclusion.
I am satisfied that X also has good, positive relationships with his paternal family, the applicant’s partner and her children along with his new half sibling. He has good, positive relationships with his maternal grandparents.
I find that each of these parties have taken the opportunities available to them to participate in making decisions about major long-term issues for X, including his school. It is disingenuous for the respondent to submit that the applicant has not taken up the opportunity to participate in the support, such as medical interventions, provided to X in relation to his development and educational needs. Whilst those things might be said to have primarily fallen to the respondent, that is because she has engineered the situation so that it has played out that way. Put another way, the respondent, I find, has effectively denied the applicant a great many opportunities to participate in decision making for X.
Again, it is disingenuous for the respondent to submit that the applicant did not take up visits with X for a Father’s Day event or school rugby games (see paragraph 377 and 385 of respondent’s trial affidavit). Those situations were engineered by her, I find, to lead to the outcome which occurred – X not spending time with the applicant on those occasions.
I am satisfied that each of these parents have fulfilled their obligations to maintain X. There is no suggestion that either has shirked their financial responsibility towards their son.
The respondent’s proposal at the commencement of the trial would see very little change to the arrangements that were in place at the start of the trial. But the orders I made at the conclusion of the first tranche of hearing before me changed those arrangements.
The evidence about the changes that were put in place after the first tranche of hearing dates shows that despite the parties’ conflict continuing to rage, X has been able to spend time with each parent in accordance with the orders.
The respondent argues that if the applicant’s orders are adopted, this would have a significant adverse impact upon X because he would be removed from the parent with whom he is “most closely attached and whom has primarily cared for him and been responsible for getting him all the supports he needs given his particular needs”. Whilst these things might be so, the submission pays no attention to either the respondent’s unwillingness or inability to ensure that X spends appropriate time with the applicant, nor X’s entitlement to have support from and his needs met by both of his parents, not just one of them.
The respondent submits that she accepts that historically she has not responded to X’s “anxieties in an optimum way, however she has demonstrated motivation and ability to engage with professionals, gain insight and a better understanding so as to better support the child”. I do not accept this submission. The evidence demonstrates, in my view, that the respondent is not motivated to follow any professional advice or act upon any better understanding so as to support X. Rather, she has fomented X’s anxieties in the way Ms M postulates. X was, at the time of his interviews with Ms M, afraid to express any positive feelings in respect of the applicant lest it upset the respondent. The respondent’s behaviour towards X, particularly following his observation session with the applicant, underscores these findings.
The parties’ ability to comply with the orders made on an interim basis in February, 2023 demonstrates that each has the ability to ensure that X spends time with each of them. That is to say, despite all that has gone before, what has occurred since the making of those orders demonstrates that the respondent has the ability and capacity to ensure that X spends time with the applicant. In my view, the evidence clearly demonstrates, and I find, that to the extent that X has not spent time with his father in accordance with court orders in the past that has been because the respondent was unwilling to comply with the orders. Whilst I am satisfied she had the ability to ensure that the orders were complied with, she was unwilling to do so and took refuge in X’s behaviours, which she cultivated, so as to justify her unwillingness. That conduct by her has placed X in the position that was described by Ms M in her second report.
These findings are underscored by the evidence of Ms Z, supervisor at D Family Services who provided her damning comments in relation to the applicant’s conduct at the attempted changeovers at that organisation.
CONCLUSIONS
I consider that an order for equal shared parental responsibility is in X’s best interests in this case. Despite their toxic conflict, the parties’ have demonstrated an ability to make joint decisions about major long-term issues for X. The respondent considered in cross-examination that it would be in X’s best interests if they made major decisions about his welfare jointly, whereas the applicant thought that X’s primary carer should have sole parental responsibility. I find that the parties have the capacity to make decisions jointly for issues concerning X, despite their conflict, and it is in his best interests for them to do so.
Each party considered in cross-examination that it would be in X’s best interests for him to spend equal time in the care of his parents (the applicant on the proviso that such an arrangement would be complied with and there would be no conflict). The applicant contends that despite her avowed willingness for that to now occur, the court should have no confidence that she will be good to her word.
The applicant’s argument has much to commend it. The impression I formed was that in the past, the respondent would say and do just about anything to obstruct X’s relationship with the applicant. Her justifications and explanations for her failure to have X spend time with the applicant were demonstrated in cross-examination to be nothing more than self-serving rationalisations.
It was submitted by counsel for the respondent that the respondent had had an ‘epiphany’ during the course of the trial and realised both the negative effect her actions were having on X’s willingness to spend time with his father and the importance of facilitating that time, resulting in a change to the orders she sought. Counsel for the applicant submitted that this “epiphany” was a result of the respondent realising the case was not going in the direction she hoped and appreciating that an order might be made for X to live with the applicant. I accept counsel for the applicant’s submission. There was ample opportunity for the respondent to have an epiphany prior to the commencement of the trial, such as upon reading Ms M’s reports or upon X recommencing time with his father with very little difficulty as facilitated by Mr W. In fact, in the course of cross-examination, the respondent said that since attending upon Ms C she realised X’s opposition to spending time with his father was due to separation from her rather than fear of seeing his father. She said she came to that realisation in July or August, 2022. She also said that X had a ‘therapeutic breakthrough’ in October, 2022 and she was going to send a suggestion to the applicant to see if they could recommence time. Nonetheless, she filed an application in a proceeding on 4 November, 2022 seeking to travel overseas with X and making no mention of X’s time with the applicant. In a case outline filed on 1 December, 2022 she sought that X spend supervised time with the applicant for two hours per week. That she would seek an order for supervised time is completely at odds with her claim in cross‑examination that she understood X’s anxiety was to do with separating from her. I do not consider that the respondent had an epiphany during the trial. I consider her change of position to be self-serving.
Nonetheless, there are indications that the respondent’s attitude towards her responsibilities for X and his relationship with the applicant appear to have changed somewhat. First, there is her evidence about the benefit to X from spending equal time with each of his parents. Second, there is her agreement to such an arrangement by way of interim orders made at the conclusion of the first tranche of hearing dates before me. Third, there is the fact that the parties have been able to make those interim orders work in the interregnum between the first and second tranches of hearing dates before me. Fourth, there is the lack of any application to reopen the evidence since I reserved my decision, which I can take to mean that neither party considers that there has been anything of any import occur since that time. From that, and the lack of any other type of application, such as an application for contravention, I can and do infer that the arrangements that are in place have been observed by the parties. Not perhaps without conflict or difficulty, but observed nonetheless.
Counsel for the applicant submitted that the respondent had demonstrated that she was unable to meet X’s intellectual needs because he had missed about one quarter of his school days in his short scholastic career. Much of these missed days, it seems to me, occurred as a result of the respondent not taking X to school so that he could not be collected by the applicant. Such episodes have not occurred since the current orders have been in place. I am not satisfied that they are likely to continue to occur.
The applicant submitted that it was only the orders that he sought that would see X have the opportunity for a proper relationship with him, unimpeded by the obstruction of the respondent and to some extent her parents. More than that, he argued that it was necessary to remove X from the respondent’s sphere of influence so that X had the best chance for his relationship with the applicant to advance. While there is merit in these arguments, I do not consider it necessary to go so far as the applicant’s orders go to restore those opportunities to X. Moreover, and this a matter of impression more than anything, I consider that there is a real risk that X’s relationship with the respondent may not be recognised and respected as it should, in the applicant’s household. His antipathy toward her was patent.
I have concluded that the orders contended for by the independent children’s lawyer should be made because they meet the best interests of X more so than the orders proposed by the applicant. They carry with them more potential benefits for X than potential detriments for him. He will have the opportunity to maintain and advance his relationship with the applicant and at the same time maintain his relationship with the respondent. I have no doubt that the parties’ conflict will continue in some form or another, but that is likely to be the case whatever the structure of the orders. There is a real risk that placing X more in the care of one parent than the other will exacerbate the parties’ conflict. That will not be in X’s best interests.
The orders proposed by the applicant would have the potential for much negative effect upon X. Ms M described that in her evidence. That is not to say that in an appropriate case, the negative effects of the applicant’s proposed orders might not, in the long run, be outweighed by the positive effects that might flow from them. But given the matters I have just referred to indicative of a change in the attitude of the respondent, I consider the positive benefits that would flow from the applicant’s proposed orders (a better, more enduring and certain relationship between X and the applicant for example) will be outweighed by the negative benefits that would necessarily flow from them. In that regard, I note that the proposal that there should be a moratorium of time between X and the respondent, notwithstanding the seeming success of the current interim arrangements, was not abandoned by the applicant in final submissions.

I have considered the prospect that making orders in line with the applicant’s proposal will reduce the conflict between these parties, or at least the opportunity for it and consequently X’s exposure to it. But sadly, the evidence demonstrates that the conflict between these parties is likely to continue and may well be exacerbated if I made the orders proposed by the applicant. I am satisfied that if either of these parents feels that the other has won some type of victory over them, the conflict will escalate further. I am especially convinced of that in the case of the respondent given her proclivity for exaggeration and disingenuity when she considers it to suit her case.
But the making of parenting orders is not about rewarding good parents or punishing bad parents or about rewarding creditworthy witnesses or punishing discredited witnesses. The court’s obligation is only to make orders that it considers, on the evidence before it, are in the subject child’s best interests. Here, I find that the orders (those proposed by the independent children’s lawyer) I have identified are in X’s best interests because:
(a)X will benefit from a meaningful relationship with each parent;
(b)the evidence does not demonstrate that there is a need to protect X from an unacceptable risk of physical, psychological or emotional harm by reason of being exposed to abuse or neglect. I have found earlier in these reasons that there is a need to protect him from family violence in the respondent’s care. The orders to be made will protect him from this because they will ensure he has an ongoing opportunity to maintain and advance his relationship with the applicant;
(c)X has a good relationship with each of his parents;
(d)despite his stated views about spending time with the applicant, those views do not accord with the observations of experts tasked with observing and reporting on the nature of the relationship between X and the applicant;
(e)each party has the capacity to meet X’s physical and intellectual needs;
(f)the applicant’s capacity to meet X’s emotional needs is intact;
(g)the respondent’s capacity to meet X’s emotional needs and in particular his emotional need for a proper and enduring relationship with the applicant is impaired, but not to such an extent that the impairment cannot be addressed by affording X additional and equal time with the applicant so that he experiences balance in his relationships with each of his parents; and
(h)the likely effect of a change in the arrangements in place immediately before the commencement of this trial has been demonstrated by what has occurred between the first and second tranches of hearing dates – X was able to spend time with each of his parents and seems to have not had any difficulty in doing so.
ORDERS
The orders sought by the respondent varied in only minor respects from those sought by the independent children’s lawyer. Where they differ, I have preferred the orders of the independent children’s lawyer. For instance, the respondent did not seek orders for X to spend time with each parent on his birthday or on their respective birthdays, whereas the independent children’s lawyer did. I consider that such an order is in X’s best interests.
The respondent sought that both parties be restrained from attending the child’s school during times that the child is living with the other parent (other than for all events that parents are ordinarily invited to attend) unless agreed between the parties in writing. I consider that such an order may further provoke conflict between these parties as to whether or not they are entitled to be at X’s school. I have opted for more straightforward form of order that deals with the same topic.
The independent children’s lawyer sought an order that the parties communicate via the Talking Parents application. Given the evidence about the entrenched parental conflict in this matter, such an order is appropriate.
The independent children’s lawyer’s orders for travel were also more detailed than the respondent’s. I make those orders.
Included in the independent children’s lawyers proposal, following the order for shared parental responsibility, were two orders, the first of which was an order that the parties are “to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility and shall make a genuine effort to come to a joint decision prior to the making of any decision about such issues” and the second which provides for each party to have sole responsibility for all decisions concerning the children’s day-to-day care, welfare and development for the time that the children are in either party’s care.
I will not make either of these orders. As to the first, it is a provision which undermines the obligations of parties who share parental responsibility. Parties who share parental responsibility have an obligation to make decisions about major long-term issues in relation to a child jointly: s 65DAC(2). Section 65DAC(3) already requires the parties to consult with each other and make a genuine effort to come to a joint decision. The language of the provision drafted by the independent children’s lawyer of “shall make a genuine effort to come to a joint decision prior to the making of any decision about such issues” arguably abrogates the parties’ responsibilities to make relevant decisions jointly and renders the order effectively impossible to enforce should one party make a unilateral decision following a genuine, but fruitless, effort to come to a joint decision.
As to the second provision, it is entirely pointless. Shared parental responsibility pursuant to s 65DAC applies to decisions about major long-term issues for the child. It is self-evident that each party has responsibility for decisions concerning a child’s day-to-day care while in that party’s care: ss 61B, 61C and 61D(2) of the Act.
The independent children’s lawyer also proposed that changeovers take place each Friday. I consider that maintaining continuity of the arrangements that have been in place since 10 February, 2023 is important for X. As such, changeovers shall take place each Monday.
Lastly, in submissions, the applicant opposed the order sought by the independent children’s lawyer that X continue to attend upon Ms C for counselling. Counsel for the applicant submitted that Ms C’s counselling was doing more harm than good for X as it was reinforcing the negative views he had of the applicant. I agree with the submissions made by counsel for the applicant. It was abundantly clear from the evidence that Ms C’s involvement only served to reinforce X’s anxiety about spending time with the applicant. An order will follow that, unless agreed between the parties in writing, X is not to continue to attend upon Ms C.
For the above reasons, I make the orders set out at the commencement hereof.

I certify that the preceding one hundred and thirty-seven (137) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett.
Associate:
Dated: 17 November 2023

File number(s):	BRC 6468 of 2018
Judgment of:	JARRETT J
Date of judgment:	17 November 2023
Catchwords:	FAMILY LAW – PARENTING – Where child did not spend any time with applicant for a period of 10 months – Where respondent responsible for child’s resistance to seeing applicant – Where entrenched and protracted parental conflict – Where child is closely bonded to and will benefit from a meaningful relationship with both parents – Where some evidence that parties can make major long-term decisions jointly – Where an equal time arrangement has been in place since prior orders and while judgment was reserved – Order for equal shared parental responsibility – Order for equal time
Legislation:	Family Law Act 1975 (Cth) ss 4AB, 62G, 65DAC(2), 65DAC(3)
Division:	Division 1 First Instance
Number of paragraphs:	137
Date of hearing:	8, 9, 10 February 2023 & 15 March 2023
Place:	Brisbane
Counsel for the Applicant:	Mr McGregor
Solicitors for the Applicant:	DV Lawyer
Counsel for the Respondent:	Mr Alexander
Solicitors for the Respondent:	Evans Brandon Family Lawyers
Counsel for the Independent Childre’s Lawyer:	Ms Gajic-Pavlica
Solicitors for the Independent Children’s Lawyer:	Smithson Lawyers Gold Coast

BRC 6468 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR BENISTON Applicant
AND:	MS DOWLING Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	JARRETT J
DATE OF ORDER:	17 NOVEMBER 2023