Benson and Benson (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

BENSON & BENSON (No.2)

[2014] FCCA 2204

Catchwords:
FAMILY LAW – Interim parenting arrangements for child not yet seven years of age – parents have been separated since mid-2010 – child has lived exclusively with mother in Adelaide since separation and has spent no time with father – father lives in Melbourne – mother alleges she and child exposed to family violence prior to separation – father seeks to spend time with child – independent children’s lawyer appointed – ICL has arranged for family report to occur including observed interaction between father and child – independent expert described child as being curious to meet father and observed a positive interaction between father and child – in this context independent expert recommended process of professionally supervised time in Adelaide – this process discontinued due to child’s distress – father asserts that child’s distress orchestrated by mother – mother asserts that child’s reaction is congruent with child’s own experience of his father – what is next step – mother seeks involvement of therapist, nominated by her, for child – father and independent children’s lawyer advocate regime by which father and child can interact with one another independently of mother outside of professionally supervised setting – nature of interim hearing – matters to be considered – best interests.

Legislation:

Family Law Act 1975, ss.4AB(1), (2), (3), 60CA, 60CC, 61DA, 65DAA

Benson & Benson [2012] FMCAfam 335
Benson & Benson [2014] FCCA 1193
Amador & Amador (2009) 43 FamLR 268
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
Goode & Goode (2006) FLC 93-286
T & N (2003) FLC 93-172
JG & BG (1994) 18 Fam LR 255
A v A (1998) FLC 92-800

Applicant:

MR BENSON

Respondent:

MS BENSON

File Number:

MLC 5232 of 2011

Judgment of:

Judge Brown

Hearing date:

8 August 2014

Date of Last Submission:

8 August 2014

Delivered at:

Adelaide

Delivered on:

25 September 2014

REPRESENTATION

The Applicant:

In person

The Respondent:

In person

Counsel for the Independent children’s lawyer

Mr Boehm

Independent children’s lawyer

Legal Services Commission of South Australia

ORDERS

The independent children’s lawyer, within fourteen days of the date of this order, prepare a minute in accordance with the reasons for judgment herein, after consultation with the applicant and Ms A as to the dates the applicant is able to come to Adelaide to spend time with the child X and when Ms A is able to meet with the child both before and after the father spends time with the child as envisaged in these reasons for judgment.
The minute referred to in order (1) hereof be filed with the court no later than 10 October 2014.
The proceedings be listed for direction on 8 December 2014 at 9:30am.
Liberty to the parties to re-list on short written notice.

IT IS NOTED that publication of this judgment under the pseudonym Benson & Benson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

MLC 5232 of 2011

MR BENSON

Applicant

And

MS BENSON

Respondent

REASONS FOR JUDGMENT

Introduction

The current case presents an acute dilemma for the court, which concerns the welfare of a child, who will soon be seven years of age. Clearly, as a consequence of his age, he is a vulnerable child.
On the one hand, the law recognises the entitlements of children to know and be cared for by both their parents and to spend time regularly with individuals, who are likely to be important to them, both contemporaneously and into the future. Most usually, these individuals are grandparents, siblings and particularly parents.
On the other hand, children also have a right to grow up safely and be protected from coming to harm, both in a physical and emotional sense, from being exposed to poor and abusive parenting and family violence.
These entitlements arise for a child, regardless of the state or the status of the relationship between his or her parents. For obvious reasons, innocent children cannot be responsible for circumstances, beyond their control, relating to what their parents have or have not done in the past or for attitudes, which their parents may now hold.
However, some parental relationships, which come before the court, may be so compromised that they preclude one or other of these entitlements for the child concerned, depending upon the idiosyncratic circumstances arising. Not every case is amenable to an outcome, which achieves a proper balance between these two considerations – protection from emotional harm and a meaningful relationship with not one but both parents.
In such cases, the focus for the court must always remain on what is best for the child, not what is best for one or other of the parents concerned. A child is not to be awarded, as a prize to reward a parent perceived to be more deserving or removed from a parent to punish perceived failings on that parents’ part.
In addition, the court must be mindful that what is best for a child includes considerations relating to the situation and development of the child concerned in the short, medium and long term. This is particularly so when regard is had to a child’s entitlement to have an intimate or meaningful relationship with a parent.
Such relationships do not spring into existence overnight. They need time and nurture to be created. The years of early childhood are central to the creation of warm and comfortable bonds between children and their parents, which occur as a sense of familiarity is developed, between parent and child, over time. It may be too late, for such bonds to arise, when a child has reached adolescence or early adulthood and has not previously interacted extensively with one of his or her parents.

Background

The parties to these proceedings are Mr Benson “the husband” and Ms Benson “the wife”. They are the parents of X, born (omitted) 2007.
The parties began to live together in (omitted) 2006. They married on (omitted) 2008. They finally separated in July 2010, when the wife and X left Melbourne for Adelaide, where the wife has strong family connections. They are now divorced.
The husband has not seen X since, apart from one occasion when an interaction between X and his father was observed by Ms A, a social worker charged with preparing a family assessment report for the court.
It is the wife’s case that she was the victim of domestic violence perpetrated by the husband on her, which started prior to her pregnancy with X and which continued after the parties separated. It is her case that X himself was exposed, both directly and indirectly, to his father’s physical and emotional abuse. Accordingly, it is her position that X has a fearful and negative view of his father, as a consequence of his own direct and personal experience of him.
Mr Benson vehemently refutes these allegations. It is his case that his former wife has a distorted perception of him and the world in general, as a dangerous and malign place. He asserts that whether it is being done consciously or unconsciously, Ms Benson is intent on alienating X from him and ensuring that he does not have a proper level of relationship with a father who loves him dearly.
In these circumstances, he is fearful that the wife’s attitude will infect X with the same distorted view of the world and of him, which she holds. He believes this will cause X inestimable damage, as he grows to maturity. Underpinning Mr Benson’s case is his contention that X will benefit from having a meaningful level of relationship with his father and other members of his wider paternal family, from whom he is currently estranged.
Mr Benson and Ms Benson are not the only party to the proceedings. As a consequence of the serious allegations regarding family violence and abuse made by the wife, when coupled with the husband’s allegations of parental alienation of X, on 22 April 2013, it was ordered that X be independently represented in the case.
The independent children’s lawyer, charged with representing X, is Mr Ashley Kent, an experienced family lawyer, employed by the Legal Services Commission of South Australia. Mr Kent has briefed a barrister, Mr Boehm to appear in the case. The law requires Mr Kent and Mr Boehm to formulate a position, based on the evidence available to them, which they think will be in X’s best interests.[1]
[1] See Family Law Act 1975 at section 68LA
One of the major pieces of evidence, available to the parties in the case at the current stage, is the family report prepared by Ms A, on 20 August 2013. Ms A was commissioned to prepare the report by Mr Kent.
In her report, Ms A noted that the parties had shared a toxic relationship with one another. As a consequence, Ms A was concerned that X might have been exposed to family conflict and violence, prior to the parties’ separation, when he would have been around two and a half years of age. In this context, Ms A regarded Ms Benson as being highly anxious about X, particularly in his ability to separate from her and to be safe, whilst in the company of his father.
Whilst noting Ms Benson’s historical concerns about Mr Benson’s alcohol use and abusive personality, Ms A was not overly concerned about the husband’s presentation to her. He impressed Ms A by his calm demeanour and his account of being in a stable and committed relationship; having a stable employment record; and his denial of being an alcoholic.
In all these circumstances, Ms A oversaw a re-introduction between X and his father. This occurred, at Ms A’s rooms, on 9 August 2013. At the time, X was about five and a half years old and had not physically seen his father for over three years.
Ms A’s impression of X was that he was a shy and quiet child, who struggled to separate from his mother. Ms Benson herself was highly anxious at the prospect of X seeing his father. On any view, it was a difficult and tense situation. Ms A reported as follows:
“X eventually felt comfortable to separate from his mother and remain in the play room with the Consultant waiting for his father to arrive. During this time X imposed as a quietly spoken yet happy and playful child who enjoyed his interactions with the Consultant. He noted that he did not recall what his father looked like and he appeared positively curious to see him when he arrived. Upon Mr Benson’s arrival X eagerly greeted him at the door and Mr Benson bent down to X’s level and introduced himself as “your dad”. Mr Benson immediately imposed as an emotionally intuitive father who was empathic to X’s emotional needs. X easily transitioned his play activity previously shared with the Consultant to share with his father and he appeared happy and comfortable with this shared interaction. Immediately Mr Benson created a child-focussed, warm and playful environment for X. Mr Benson asked an appropriate amount of child-focussed questions and X responded appropriately. Jokes related to their play were also shared by Mr Benson and this resulted in X giggling and sharing in jokes with his father. All the observations were positive and a delight to observe.
At the end of the play session Mr Benson put his hand out for X to shake and this was followed by the Consultant’s suggestion that they may like to share a hug. X then immediately took a step forward to his father just as Mr Benson open his arms and they embraced in a big hug appeared to be equally enjoyed by both. X had a large smile on his face, appeared very happy from the experience and was then escorted back to his mother. He excitedly bounced into the room and was embraced by Ms Benson who indicated a mixed sense of anxiety and relief from his return. X said to his mum that his “dad” hugged him and he appeared happy and excited by this. He then left in his mother’s care whilst trying to get one more look at his father through the blinds as he left.”[2]
[2] See Ms A’s report at paragraphs 40 & 41
Ms A expressed herself to find it delightful that X and his father were apparently so amenable to being reunited with one another. It was her opinion that X enjoyed spending time with his father and showed no fear or anxiety of him, in spite of Ms Benson’s obvious anxiety in the period prior to him meeting his father. Ms A noted X had a “delight in sharing physical affection with his father”.
In these circumstances, Ms A hypothesised that the benefits likely to accrue to X, from developing a meaningful relationship with his father and other members of his paternal family, far outweighed any probable risks of harm to X, provided any process of reunification was supported by both his parents and proceeded gradually and incrementally.
Accordingly, Ms A wrote as follows:
“… [on the basis of current information] unless new evidence was to come to light with respect to Mr Benson’s current use of alcohol, his propensity to violence and his current mental health, that it would be in X’s best interests for the Court to create orders that supported his reunification with his father with a slow build-up of time spent together to the point of X eventually spending time with his father in Victoria each school holidays and some mid-term weekend time.”[3]
[3] See Ms A’s family report at paragraph 47
In a formal sense, Ms A recommended that the parties enrol at the (omitted) Children's Contact Centre and thereafter Mr Benson spend time with X, on either a fortnightly or monthly basis, for a period of around two hours on each occasion. She also recommended that Mr Benson have telephone communication, with X, on one occasion each week.
In addition, Ms A recommended that the wife engage with an appropriately qualified mental health therapist to assist her in managing her own anxiety and X’s emotional needs, whilst both transitioned through the reunification process.
Regrettably, the process of professionally supervised time has been completely unsuccessful. It is the wife’s position that this is because of X’s rationally based anxiety about his father. On the other hand, it is the husband’s position that Ms Benson is influencing the child against him.
This is the background to the present proceedings, which occur at an interim or provisional stage. The parties are currently in vehement dispute, as to what is the next step the court should take, in the process of reintroducing X and his father.
For his part, Mr Benson argues that the court must act decisively and put in place concrete arrangements for X to spend time with him, away from the influence of his mother. Although Mr Benson lives in country Victoria, he is willing to come to Adelaide regularly to spend time with X.
On the other hand, Ms Benson argues that such an approach will subject X to emotional trauma. She asserts that the only way forward is for X to engage in a process of therapeutic counselling to ascertain if and when he should spend any time with his father.
Mr Boehm, on the instructions of the independent children’s lawyer, favours Mr Benson’s approach. He fears that any further delay may result in an outcome which sees X from not having any form of relationship, with either his father or members of his paternal family, moving from being a possibility to a certainty.
These proceedings are directed to resolving this issue at this interim stage. The difficulty arising is that, at this stage, the court has not heard evidence from either of the parties or Ms A and so it is difficult, if not impossible, for it to make concluded findings of fact.
The major issue in the case clearly is the nature of the parties’ relationship during their marriage and its effects on X. As indicated earlier, the parties’ have diametrically opposing views about this issue. As will be outlined in more detail, the structure of the Family Law Act places priority on the need to protect children from coming to harm as a consequence of exposure to family violence and abuse.
In addition, Ms A herself has not been subject to cross examination and so the methodology of her report and the conclusions which she reached in it have not as yet been subject to detailed scrutiny. As will be apparent, I hope, from this brief introduction, this is a complex and difficult matter, which presents no ready or obvious solution, yet its implications, from X’s perspective, are likely to be significant.

Relevant history

The husband is currently forty nine years of age. He is employed as a (occupation omitted) by (employer omitted). The wife is currently forty six. She is not currently in paid employment. There is no doubt that the parties currently mistrust one another and their capacity to communicate directly with one another is non-existent.
Mr Benson has previously been married. As a consequence he has two children. They are A born (omitted) 1998 and B born (omitted) 2000. From Mr Benson’s perspective, it is important that X have some form of relationship with his two half siblings.
Proceedings have been on foot, between the parties, since June of 2011. The husband commenced the proceedings in the Melbourne Registry of the court. These have related, in the main, to the division of matrimonial property. On 25 June 2014, I delivered reasons for judgment in respect of an application brought by the wife to set aside earlier orders made in July 2012, pursuant to the provisions of section 79A of the Act.
In her affidavits relating to the various property proceedings and more recently in respect of the proceedings relating to X, the wife has increasingly become more critical of the husband’s conduct towards her during the parties’ marriage. In addition, she has described herself as a vulnerable person, as a consequence of past ill health.
The wife has suffered from bowel cancer, which fortunately is currently in remission, but due to genetic factors she is at significant risk of relapse. As a consequence, she has been advised, by her doctors, of the need to keep her life stress-free as much as possible.
When the proceedings began, the wife was represented by solicitors, who prepared her initial affidavit. This related solely to issues relating to the division of property; spousal maintenance; child support for X; a Mercedes Benz motor vehicle; and the transfer of proceedings from Melbourne to Adelaide.
In this initial affidavit, Ms Benson did not raise issues relating to family violence. She was however critical of Mr Benson for not being more pro-active in terms of pursuing his relationship with X. She indicated that she had made a proposal for weekly telephone communication.[4]
[4] See wife’s affidavit filed 20 July 2011 at paragraph 40 - 41
The proceedings were transferred to Adelaide on 25 July 2011. In addition the parties agreed on an interim division of property from the proceeds of sale of the former family home in (omitted). It was agreed that each would receive the sum of $100,000.00.
Following an unsuccessful conciliation conference, the husband brought further interim proceedings seeking an additional interim property settlement. For various reasons, including the relative imminence of the final hearing in the case, this application, which was vehemently opposed by the wife, was dismissed.[5]
[5] See Benson & Benson [2012] FMCAfam 335
Both before and after the interim hearing, the wife has been critical of the husband for not being full and frank in his disclosure of relevant financial matters. In addition, this was the theme of her section 79A application.
Given the parties’ inability to reach any consensus at the conciliation conference, their competing applications were listed for hearing in July 2012. The wife, ostensibly at least, prepared her affidavit material for the trial, although at the last moment she elected to be represented by counsel. The husband attended the trial in Adelaide with counsel briefed by his Melbourne based solicitors.

As is described in the reasons for judgment relating to the wife’s section 79A application,[6] as a consequence of discussions passing between the parties’ respective counsel, prior to the trial commencing, I was advised that the property proceedings had been settled.
[6] See Benson & Benson [2014] FCCA 1193
This led to the making of a consent order and the resolution of all extant proceedings. Up to this stage, neither party had seen fit to institute any proceedings directly relating to care arrangements for X. Later the wife instituted proceedings in which she asserted that the consent orders represented a miscarriage of justice.
It was in her trial affidavit that the wife first detailed her allegations of family violence involving Mr Benson. She deposed as follows:
“The marriage was characterised by physical, psychological, emotional and financial abuse. The abuse commenced in a spasmodic manner but became more aggressive and frequent the longer the husband and I were married. The events of abuse almost always followed a heavy session of binge drinking by the husband.”[7]
[7] See wife’s affidavit filed 28 June 2012 at paragraph 11
The wife alleged that the husband would drink nightly. The first episode of alleged abuse was said to have occurred when Ms Benson was six months pregnant with X. No particulars are provided. In addition, Ms Benson alleges that Mr Benson would leave pornographic magazines around, which X was able to find.
In her affidavit, Ms Benson details two specific incidents of family violence, which occurred on 19 September 2009 and 13 June 2010 respectively. At the time, Mr Benson was employed by (employer omitted) at (employer omitted).
On 19 September 2009, the wife alleges that the husband was aggressive and abusive towards her at the parties’ home. X was asleep. Ms Benson went to seek assistance from neighbours. Thereafter she asserts Mr Benson locked the gates of the property behind her, so she could not return. Police were summoned to the property and attended quickly. They forced a lock to gain entry and checked on X. Mr Benson was evicted from the home by police.[8]
[8] Ibid at paragraph 13
As a consequence of this incident, police on Ms Benson’s behalf applied to the Mordialloc Magistrates Court for an intervention order. Ms Benson was named as the protected person and Mr Benson was restrained from being within 200 metres of her and from going to the former family home.
It is unclear to me whether this order was contested by Mr Benson or whether it was made on an interim of final basis. What is clear is that, at some stage following the incident, the parties resumed living together, on a domestic basis, with X. In these circumstances, it is unclear whether the wife or the police took any action in respect of the intervention order.
The wife deposes that Mr Benson agreed to attend anger management counselling and persuaded her that he would drink less. On this basis she was prepared to re-admit him to the family home in (omitted). At any event, in October 2009, Mr Benson assumed a temporary position with (employer omitted) in Perth.
Mr Benson was apparently hopeful that this position would become a permanent one. For this reason, the (omitted) home was sold, in December 2009. However the husband’s plan for work in Perth did not eventuate and he returned to Melbourne.
At this stage, the parties rented a house in (omitted). During this period, the wife asserts that the husband’s abuse towards her and X “escalated in frequency and severity. There was some form of emotional, physical, psychological or financial abuse on a daily basis.” [9] The wife provides no specifics details of these incidents.
[9] Ibid at paragraph 19
The wife deposed that there was a further incident of violent behaviour on 13 June 2010, which involved Mr Benson screaming verbal abuse at her and raising his arm, as if to strike her. X was apparently exposed to this conduct. The wife alleges that the husband told X “to go and get fucked”. The husband then left the home and the police were again called.
When the police arrived, they decided to await the return of Mr Benson. When he returned he was arrested and later taken to a hotel, where he was directed to spend the evening. The wife asserts that the husband lost his driver’s licence, as a consequence of an excess blood alcohol reason. It is not possible to ascertain precisely when this occurred from her affidavit.
From the wife’s perspective, this event marked the end of the parties’ marriage. Mr Benson moved to accommodation close enough to his workplace to allow him to cycle between the two locations. Ms Benson attested that she was advised by counsellors and the police that it was “just a matter of time before either myself or our son could become seriously injured.”[10] Why this advice was proffered and in what context, is unclear to me.
[10] Ibid at paragraph 22
At this stage, the wife asserts that the husband began to see a psychiatrist to assess alcohol abuse issues. On 14 July 2010, she and X drove from Melbourne to Adelaide in the Mercedes Benz motor vehicle, which it seems, was being leased by Mr Benson. The relocation of X occurred with Mr Benson’s acquiescence. The tone of emails sent by him to Ms Benson, at the time, indicates a desire for the parties to reconcile.
Following the making of the consent property orders on 10 July 2012, the wife commenced a further round of proceedings on 15 November 2012 alleging that the court’s discretion, in respect of the property orders made, had miscarried due to a lack of proper disclosure. The wife also sought other orders relating to child support and spousal maintenance.
On 7 March 2013 Ms Benson filed a further application in which she sought orders which would have allowed the issue of a passport, for X, in the absence of formal consent from Mr Benson. In response to the wife’s correspondence requesting his permission for X to travel, Mr Benson wrote as follows:
“You have a serious mental disorder that needs urgent treatment Ms Benson. For everyone’s sake but most of all our own you should seek help.
My needs are for Respectful Communications, explaining why you want this and how you intend using it, saying please and providing return postage. Oh but you have no interest in that.
My rights are to have a relationship with my son and there is no way on gods earth will I allow you to remove him to a foreign jurisdiction without agreed and enforceable orders that guarantee that.
Be polite and register agreed parenting orders which include enforceable foreign travel conditions with the court and away we go. Simple and most definitely in X’s best interests.”[11]
[11] See annexure FB5 of Ms Benson’s affidavit filed 7 March 2013
On 25 March 2013, Mr Benson was ordered to file answering material in respect of the application relating to overseas travel. In addition, as Mr Benson indicated to me, in general terms, that he had no objection to X travelling overseas, provided certain safeguards were incorporated into the relevant orders, the parties were referred to a child dispute resolution conference.
I was provided with a short memorandum of what was discussed at the conference in question, which took place on 8 April 2013. It is clear that the conference, whilst concerned with issues to do with overseas travel, also touched on possible arrangements for X to spend time with his father.
In this context, Ms Benson informed the family consultant that Mr Benson had been verbally and psychologically abusive towards X. In addition she asserted that Mr Benson had threatened to remove X from her care. In this context, she said that she believed Mr Benson was capable of hurting X in order to get back at her for instituting property proceedings against him.
Mr Benson denied the allegations that he had been violent and abused alcohol. He asserted that all his attempts to spend time with X, over the past three years, had been resisted by Ms Benson. Given the polarised positions of the parties and the allegations of family violence, the family consultant concerned recommended that a family report be commissioned.
It was following this recommendation, on 10 April 2013, that Mr Benson first formally instigated proceedings to spend time with X. In his application, on both an interim and final basis, Mr Benson sought orders seeking: information as to X’s address, medical issues and where he was attending school; unrestricted communication with him by telephone and other electronic means; and block periods of time during school holidays.
Mr Benson also indicated that he had no objection to a passport being issued for X, which would enable him to travel overseas with his mother, provided it was to a Hague Convention country and there was no government advisory notice issued in respect of the country concerned.
In his supporting affidavit, Mr Benson characterised the mother’s descriptions of him, as a violent and alcoholic person, as being scandalous. He asserted that Ms Benson’s behaviour had become increasingly bizarre during the latter stages of the parties’ marriage. This behaviour had manifested itself by extreme level of suspicion regarding his conduct and unreasonable aggression towards him.
Mr Benson disputed any suggestion that he had been disinterested in X. He deposed that he had regularly sent him cards and birthday and Christmas presents, which had never been acknowledged.
In addition he deposed that he tried to negotiate a regime, through which to talk and spend time with X, with the wife, but these attempts had been ignored. He indicated that he had sent Ms Benson numerous emails in respect of the issue, whose only response had been to cancel her internet address.
In these circumstances, Mr Benson had chosen to withdraw in the hope that, with the resolution of the property proceedings, some progress could then be made. It is Mr Benson’s evidence that the wife’s conduct towards him had precipitated a depressive response in him.
Mr Benson indicated that he enjoyed a good relationship with his other two children, who regularly visited him in Melbourne, from their home in Brisbane. It is his position that it will be beneficial to X to have some form of relationship with A and B. Mr Benson also confirmed that he had not seen X since July of 2010.
Given the divergence of views between the parties, regarding the nature of their relationship, and the apparently intractable level of conflict between them, on 22 April 2013, I made the order for X to be independently represented in the case. I also made an order authorising the child’s travel overseas, as sought by Ms Benson, subject to the conditions required by Mr Benson.
Ms Benson filed her reply to Mr Benson’s application in respect of X on 20 May 2013. She sought orders that would see her having sole parental responsibility for X and that he would live with her. She also sought an order restraining Mr Benson from denigrating, harassing or abusing her or X and that Mr Benson should undergo a psychiatric assessment, prior to having any engagement with X.
Ms Benson filed a lengthy affidavit in support of her position, alleging the father had behaved violently towards her and X during the parties’ marriage. She described Mr Benson to be an ostensibly charming person, who became domineering and irrational in a private setting. She asserted that he restricted her access to joint matrimonial funds.
On 21 August 2013, Ms Benson filed a further affidavit, which was said to contain records of the domestic violence suffered by her and X. The records appear to relate to her attendances on a domestic violence counsellor between December 2009 and 15 June 2010.
These notes contain corroboration of the wife’s account of what happened on 13 June 2010, when police were called to the former marital home and Mr Benson was removed. The notes contain allegations of verbal abuse directed at both the wife and X.

The Family Report

The family report was ordered on 12 June 2013 and prepared under the auspices of the independent children’s lawyer and released to the parties on 22 August 2013. Ms A described the mother as highly anxious.
She was only prepared to allow X to interact with his father, if she (Ms Benson) could monitor the play via close circuit television and X was provided with a “safe” word to end the play session should he feel unsafe.
Both parents, described to Ms A, being frightened of the other and to be the victim of the other’s intimidation and physical and emotional abuse.
Mr Benson admitted that he had shouted at Ms Benson, in the past and locked her out of their home. He indicated that he now regretted his conduct. Mr Benson also indicated to Ms A that he was anxious that, if X spent time with him, the child would be subject to unnecessary examination, following each such parental interaction, to ascertain whether he had been injured.
Ms A assessed Ms Benson to be an emotionally sensitive mother, who provided X with praise and encouragement in his play. Ms A noted that, at the time of the assessment, X had never attended childcare and was unfamiliar with being separated from his mother, for extended periods of time.
Notwithstanding the mother’s anxiety at the prospect of X coming into contact with his father, it is clearly Ms A’s view that the introduction went well. Mr Benson impressed Ms A as being child focussed and warm in his interactions with X. Given X could not remember what his father looked like, after a break of around three years, it is questionable how much direct memory X can have of the parties’ relationship, with one another, prior to their separation.
In her evaluation, Ms A noted the high level of conflict between the parties, which had entrenched a dynamic characterised by an inability to communicate about issues to do with X and a complete lack of trust. Ms A described the parties’ relationship as toxic.
Ms A was aware that her observations of X with his father had been short in duration and in an artificial setting. This is so. However, Ms A, notwithstanding the circumscribed nature of her observations opined that:
“…they did suggest that Mr Benson had the ability to be an emotionally attuned and sensitive parent who was also capable of building a secure relationship with X. Furthermore, X appeared to genuinely enjoy his time spent with his father, he showed no anxiety or fear in doing so in spite of being exposed to Ms Benson’s clear high level of anxiety, and he even appeared to delight in sharing physical affection with his father, as if confirming his wonder about his father’s actual love for him. Whilst it remained in dispute which parent was more responsible for X’s lack of time spent with his father post-separation, be it Ms Benson’s alienation or Mr Benson’s lack of effort, it was delightful to see X embrace this reunification process with his father and similarly Mr Benson embrace this opportunity as effectively as he did.”[12]
[12] See family report at paragraph 46
In this context, on the evidence available to her, Ms A recommended a regime through which X’s time could be gradually built up until he was able to spend time, with his father, in Victoria, during school holidays and at mid-term. In this context, Ms A recommended as follows:
“It was hypothesised that the benefits to X of developing a meaningful relationship with his father, including a connection with his extended paternal family, would far outweigh the perceived risk of harm to X if this process of reunification was to be firstly - supported effectively and equally by both parties, and secondly, X’s time with his father initially commence at a Children’s Contact Centre for short but frequent periods of time, then gradually increase to longer and unsupervised time, with eventually overnight periods to take place in Adelaide and then Victoria once X had developed a secure base with his father and Ms Benson’s anxiety about Mr Benson had reduced.” [13].
[13] Ibid at paragraph 48
Ms A’s perspective, the success of this regime depended on it being supported by Ms Benson. On the basis of her anxiety about the family assessment process, Ms A recommended that Ms Benson embark on a course of therapy to manage her own anxiety in respect of the process of X beginning to spend some time with his father. Given the success of the introductory process, Ms A saw no difficulty with telephone communication starting forthwith between X and Mr Benson.
In a formal sense, Ms A made the following recommendations:
The parties enrol at the (omitted) CCC as soon as possible.
Mr Benson start to spend time with X each fortnight/monthly on a Saturday or Sunday (assuming this is for 2 hours on each occasion) for 6 sessions at the (omitted) Children's Contact Centre.
Then X spend time with his father on 2 occasions either fortnightly or monthly on a Sunday from 10am until 4pm with the handovers to take place at the (omitted) CCC but for Mr Benson to be free to leave with X after the handover.
Then after this the parties facilitate handovers inside a mutually agreed Police Station at 10am and 5pm, one Sunday per month.
Then after 6 months of this arrangement Mr Benson spend time with X from 10am Saturday until 5pm Sunday one weekend per month during the school term. On the proviso that he informed Ms Benson of his overnight location with X and that X was emotionally ready for overnights with his father.
During school holidays it would be recommended that Mr Benson be at liberty to spend additional time with X mid-week subject to Mr Benson’s availability to travel to Adelaide, with the additional time being a maximum of 2 concurrent nights once-off in short school holidays, and 2 concurrent nights on 2 separate occasions in the Christmas holidays (i.e. once in December and once in January).
Once aged 8 years X spend time with his father in Victoria for one weekend each mid-term: Friday night until Sunday 5.00pm; and during the Christmas holidays for increasingly longer periods of time until such time that he could manage 2 weeks in his father’s care. For example, he initially spend 4 nights in his father’s care, then once 10 years of age he spend 7 nights, then once 12 years he spent 2 weeks in his care, and this occur twice each Christmas holiday period, i.e. once in December and once in January.
Mr Benson to be refrained from consuming alcohol 12 hours prior and whilst caring for X.
Effective immediately Mr Benson contact X by telephone once per week at a set time negotiated between the parties, for example, each Sunday at 6pm; plus on special occasions.
Effective immediately Mr Benson be at liberty to contact X’s school and obtain all School Reports, photographs and other such material generally provided to any other parent.
Ms Benson engage with a therapist via a Mental Health Plan from her GP to work on effectively managing her own anxiety and also managing X’s emotional needs whilst transitioning through his reunification process with his father.”[14]
[14] Ibid at paragraph 56

Events since the family report

On 2 September 2013, with the support of Mr Benson and the independent children’s lawyer, but the opposition of Ms Benson, the court made orders for the father to have weekly telephone communication with X and for a regime of supervised time at the (omitted) Children's Contact Centre. The mother was restrained from having X psychologically or psychiatrically assessed without Mr Benson’s consent or order of the court.
These orders have proven to be completely ineffective. On 24 February 2014, Mr Kent filed an affidavit to which was attached a letter from the Co-ordinator of the (omitted) children’s contact service. The letter read as follows:
“Due to the continued refusals by the child X to see his father Mr Benson, the (omitted) Children's Contact Service is now required to cancel all further contact visits.”
Ms Benson is highly critical of Ms A’s report and does not accept its recommendations. She does not accept that there was a positive interaction between X and his father. Rather it is her view that when the two came into contact with one another, X engaged mainly in solitary play.

It is the tenor of her evidence that she has done all that has been required of her to deliver X to the children’s contact centre. However, it is her evidence that X has been highly anxious about the process and has clearly indicated that he does not want to engage with it. It is her evidence, supported by the report of the children’s contact centre, that X has consistently said that he wants to go home, when faced with the prospect of seeing his father.
It is also Ms Benson’s evidence that X finds the prospect of talking with his father on the telephone equally distressing and refuses to do so. From Mr Benson’s perspective, either consciously or unconsciously, or perhaps with a mixture of both, Ms Benson is exposing X to her hyper-anxiety, and influencing the child to behave in the way in which he has done so.
Given the possible involvement of the mother’s anxiety, in the failure of the regime for X to spend supervised periods of time with his father, on 17 March 2014 it was ordered that Ms Benson be psychiatrically examined by a psychiatrist to be nominated by the independent children’s lawyer. The psychiatrist nominated to undertake this examination was Dr J and his report was released to the parties in mid-April of 2014.
Dr J found that Ms Benson did not show signs of any obvious psychiatric disorder, nor did she present a history of any such disorder. In these circumstances, Dr J could find no incapacity, on Ms Benson’s part, to care for X.
In this context, Dr J noted that Ms Benson sought his advice as to how she could facilitate X’s relationship with his father, a request which Dr J assessed as being genuine. Whether this is correct is not possible for me to ascertain at this juncture.
In his assessment, Dr J noted the extreme conflict between the parties, which he opined would be stressful for both Mr Benson and Ms Benson. He further noted that:
“Even though Ms Benson states that she shields X from conversations about the father, it is inevitable that her own emotional reaction would be evident to X. This may contribute to his reluctance to see the father. However, the impression I gained is that she tries to shield X from such emotions and I would therefore not accept that she is deliberately trying to alienate X from his father.”[15]
[15] See report of Dr J dated 17 April 2014 at page 4
For his part, Mr Benson greets Dr J’s view that Mr Benson supports X having a relationship with him with extreme scepticism. It is his view that Ms Benson offered no encouragement to X to participate in the supervised contact program at (omitted). Rather, in his view, she affirms and even encourages X’s distress. In these circumstances, his application, both on a final and interim basis, is that X should live with him.
Mr Benson has also deposed that the mother of his two older children, A and B is terminally ill. As a consequence, they are likely to come to live with Mr Benson and his current partner Ms M during 2014 at their home in central Victoria. Mr Benson has provided testimonials, from various members of his family, who express their desire to meet X.
Accordingly, the matter has reached a point of deadlock. In these circumstances, on 10 June 2014, I made the following orders:
“The parties exchange proposals in writing within fourteen (14) days of today’s date, and with the Independent Children’s Lawyer, as to the next step in terms of progressing the reformulation of the relationship between the child X born (omitted) 2007 and his father.
IN PARTICULAR:
The father propose as to how often he is able to visit Adelaide, and where and in whose presence the child can be exchanged between the parties; how long each visit is to be; and, which activities are proposed take place with the child during each such visit.
UPON NOTING that the mother has indicated that she accepts the child should have a relationship with the father. The mother propose as to how she will facilitate the face to face interaction between the father and the child.
The Independent Children’s Lawyer consider these proposals and make any necessary inquiries incidental to these proposals and each party give consideration as to whether the matter be transferred to the Family Court of Australia.
Further consideration of this matter be adjourned for interim argument on 8 August 2014 at 2.15 pm with the father given leave to attend by telephone on that occasion.”
These reasons for judgment arise as a consequence of this order. The court must determine in very difficult circumstances, what is the next step for X.

Mr Benson’s proposal

Mr Benson rejects the concept of any further supervised visits between him and X. From his perspective, such a process will not be useful unless Ms Benson has a change of heart, a possibility which he considers improbable. In these circumstances, he suggests that the next step should be that he and X engaged in an activity, likely to be attractive to X, away from Ms Benson and any form of supervision, either lay or professional.
So far as suitable activities for X, and what should happen next, Mr Benson writes as follows:
“I've asked Ms Benson for suggestions but heard no response. As a result I am flying blind as to what activities X would like. I would suggest though that an activity - kicking a footy in the park, a trip to a sporting event, the zoo, a movie, fishing off a pier - followed by a refreshment would form a pretty good outline to work from. I would say 3-4 hours, on 2 or 3 occasions spaced 4-6 weeks apart.
The handover should be at a friendly and relaxed place, not the home, not in Ms Benson's presence. Orders should explicitly require Ms Benson to leave prior to the handover and not follow or shadow. I should discuss plans with whoever is going to do the handover beforehand so we both know how it will run. I can't be more specific, I've never lived in Adelaide and have no contacts there.
Costs need to be shared. In the alternative my recourse is to apply for 100 percent of contact costs to be applied via the CSA. While that would seem the fairer approach given the whole situation is not of my making, and reserving my rights, I will settle for sharing.
Subject to adequate progress, after two or three visits we should then plan activities that will help X integrate further, an overnight stay or stays in Adelaide, followed by an overnight stay or stays in Melbourne - my broader family's annual get together in November would be a good candidate - followed by extended stays in my home commencing around Christmas if progress is good. As his parent I believe I am capable of making the appropriate decisions as to when and if X is ready to progress to the next step in this transition. If Ms Benson is capable of communicating I will consult with her as well.
Recognising the emotional toll failure has on everyone, we should not persist in the face of failure, but refer the matter back to the court to reconsider interim relocation at the first sign of things going awry, X and I have experienced more than 20 failures so far, which I think is enough and foreshadows a very low probability of success in the fixture.”[16]
[16] See Annexure AMK5 to Ashley Kent’s affidavit of 21 July 2014

Ms Benson’s proposal

Ms Benson has consulted her general medical practitioner, Dr W, who has referred X to a psychologist, Dr J. Dr W, in his referral to Dr J, relayed Ms Benson’s descriptions of X’s stress, in response to telephone contact and visits with his father. He wrote as follows:
“It has been reported by his mother that there are times when X appears stressed in response to telephone contact and visits with his father. After contact with his father she has noted his regressive clingy behaviour, aggression, needing of more reassurance and having nightmares. After one particular supervised access visit with his father in February 2014 he was noted to be very withdrawn afterwards and had a disturbed night. The next morning his mother described him being non-communicative, curled up on a bean bag as though in a foetal position and refused to attend school. These symptoms could be interpreted as a response to trauma during childhood. Indeed only half of the court-ordered six supervised visits were completed due to his distress noted by Relationships Australia, who advocated no further visits at this stage.
It is therefore unsurprising that X does not yet appear to want a relationship with his father given these reported circumstances. Based on these observations I would not recommend unsupervised visits with his father, due to anticipated adverse effects on X’s well being, but would appreciate your assessment and advice on this matter.”
It is unclear to me whether Dr W was provided with Ms A’s family report, which is not congruent with these descriptions. It appears unlikely that he was. In addition, the evidentiary sources, for the referral, appear to emanate only from Ms Benson and include no input from Mr Benson nor indeed any direct observation of X.
Both Mr Benson and Ms Benson have approached independently other experts, who regularly provide evidence to the court in cases involving so-called alienated children. In the husband’s case, he has consulted Mr V of Melbourne; in the wife’s case, she has consulted Dr A. Perhaps unsurprisingly, the respective experts have provided an opinion, which supports the person who has solicited it.
Dr A is reported to have recommended that it is in X’s best interests that he not spend any time with or talk to his father, until such time as he has undergone therapy from a trauma therapist. Dr A is of the apparent view that X is at high risk of being re-traumatised, if he engages with his father in any way whatsoever.
On the other hand, Mr V opines that if X loses his relationship with his father, as a consequence of his mother’s influence, he is likely to suffer significant psychological and developmental problems, including low self-esteem, drug and alcohol abuse, as he passes through adolescence into maturity.
Ms Benson seeks the following orders:
“The child spend no time with the father and shall not communicate with the father.
That Dr J, clinical psychologist, at (omitted) Psychology examine and assess the child and provide an opinion and an assessment of his psychological wellbeing and advice on appropriate management as to the next step in terms of progressing the reformulation of the relationship between X and his father.
That this matter be transferred to the Magellan program of the Family Court of Australia.”

The independent children’s lawyer’s proposal

The independent children’s lawyer is more in favour of the husband’s position than that of the wife. Mr Boehm, counsel for the independent children’s lawyer, submits that the court needs to be proactive in terms of facilitating X having some form of relationship with his father.
Mr Boehm does not favour the therapeutic approach advocated by Ms Benson. I share those concerns. In particular, I have been provided with no evidence regarding Dr J’s qualifications and experience. In addition, I have not been advised as to what part Mr Benson would play in any process of therapy to be overseen by Dr J.

The legal principles applicable

(a) The nature of the interim hearing

As these proceedings arise at the interim stage, the court has not seen either party being subject to cross-examination, in respect of the issues which relate to X. There have, however, been other proceedings, albeit relating to financial matters, where both Mr Benson and Ms Benson have given oral evidence and been subject to cross-examination.
In these earlier proceedings, I assessed Ms Benson to be an intelligent person but one who lacked objectivity, where her former husband was concerned. Her complaints about his financial turpitude, prior to detailed examination, appeared credible, but when subject to scrutiny were found to be without foundation.
I provided the following assessment of Mr Benson:
In my estimation, Mr Benson gave his evidence in a calm and methodical manner. He presented as a person who was wearied by what he regarded as his former wife’s unrealistic demands. It is the effect of his evidence that he has never concealed anything from her and has always wished to settle proceedings between them amicably and fairly.[17]
[17] See Benson & Benson [2014] FCCA 1193 at paragraph 103
His demeanour towards me, throughout these proceedings, has been unfailingly polite and courteous. His affidavit material, much of it prepared by himself, has been coherent. I appreciate that this is part of the wife’s case. She portrays Mr Benson as an ostensibly charming person, whose affable exterior conceals a person who is cruel, narcissistic and manipulative.
The fundamental evidentiary dispute between the parties concerns the nature of their marital relationship – was it one characterised by coercive and controlling violence, which had extremely detrimental emotional consequences for X, as the wife contends; – or was the relationship tense and labile because of the unhappy situation in which the parties found themselves, as the husband contends.
At this juncture, there is a lack of corroborative material to support the wife’s position, other than that she has reported her concerns to a number of professional people both throughout the course of these proceedings and earlier to a domestic violence service. I have not been provided with any police incident report or medical record indicating any direct injury or psychological trauma, in respect of which treatment was sought.
The husband’s position is that he, from time to time, behaved inappropriately towards his former wife, but only in response to a difficult situation. He regrets his behaviour now. The parties have now been separated for a period in excess of four years. Although the wife asserts that she continues to be fearful of the husband, she has not been able to point to any incident, which has occurred since separation, to support her fears.
The other aspect of the case concerns X himself. He was around two and a half years of age, when the parties separated. The wife contends that X was subject to angry outbursts, from his father, from the time he was one day old.[18] It is further alleged that Mr Benson referred to X as dumb and stupid and criticised his manner of eating. In March of 2009, it is alleged the father grabbed X’s collar, causing the child to gag.
[18] See Notice of Abuse filed 30 August 2013
I appreciate that it may be a matter for expert evidence to gauge what direct memories, if any, X himself can have of these incidents, which occurred in his early infancy and what sequellae they may have had for him in a neuro-psychological context. This is not a topic which has been examined in these proceedings to date.
It is, however, interesting to note that, so far as Ms A was concerned, X demonstrated no apparent distress, when meeting his father after a gap of three years and indeed professed to have forgotten what Mr Benson looked like.
I also appreciate that it is rarely the case that one party can conclusively prove all relevant allegations of having suffered family violence or the other irrefutably rebut allegations that it occurred. This does not absolve the court of its responsibility to deal with allegations of family violence stringently.[19]
[19] See Amador & Amador (2009) 43 FamLR 268
In the current matter, it seems highly probable that the only mechanism, which will be available to resolve this evidentiary dispute, is the court’s assessment of the overall credibility of the husband and wife respectively.
This assessment cannot be completed at the interim stage, which does not allow time for extensive cross-examination. As a consequence, the court cannot make its own direct and conclusive assessment of the parties’ respective level of credibility in respect of these complex factual issues, given the evidentiary positions of the parties are diametrically opposed.
In any event, the focus for the court is not solely on the determination of these issues, at this juncture. Rather it must determine, against this conflicted evidentiary background, whilst bearing in mind the truncated nature of the hearing before it, what is the outcome which will best serve X’s interests.

(b) Parenting arrangements for children

Interim hearings do not determine long term arrangements for children. That is the function of final hearings. However, the same principles apply at both the interim and final hearing stage. They are contained in Part VII of the Family Law Act 1975, which is the part of the Act dealing with children.
In deciding whether to make any particular parenting order, in relation to a child, the court must regard the best interests of the child as the paramount or most important consideration [Family Law Act section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
However, these considerations still need to be considered within the overall framework of Part VII, particularly its underlying principles and the legislatively mandated objects or aspirations of the Act. These are set out in section 60B and are illuminative of the dilemma which this case throws up.
These speak of children’s rights to know and be cared for by both their parents and to regularly spend time with each of them, regardless of the nature or duration of the relationship between their parents. The legislation recognises the fundamental entitlement of children to have a relationship with their biological progenitors.
Children also have a right to be safe and to be protected from coming to harm, both in a physical and a psychological, as a consequence of being exposed to neglect, abuse or family violence. In a case, such as this one, the parties concerned approach parenting issues, to do with X, from these different aspects.
In this case, it is the mother’s position that the court needs to give pre-eminence to the need to protect X from coming to physical or psychological harm, as a consequence of being exposed to some form of neglect or abuse, arising from what she asserts is Mr Benson’s violent disposition and lack of insight in what it is to be a responsible parent.
On the other hand, it is Mr Benson’s perspective that it is fundamentally in X’s best interests that he begins to have some form of relationship with him and he will benefit, in myriad ways, from knowing his father, who will provide him with love and a sense of identity, as he grows into maturity.
It is the underpinning of his position that the early years of childhood are crucial to the development of an intimate and comfortable relationship between parent and child. As such, from his point of view, time is crucial and much has already been lost.

Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[20]
[20] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[21] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[22]
[21] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[22] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so in all these circumstances prevailing [section 61DA(3)].
In the case of Goode & Goode[23], the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one.
[23] Goode & Goode (2006) FLC 93-286
In determining interim parenting matters, after identifying the competing proposals of the parties, the issues in dispute, and any agreed issues, the court should:
·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or, in interim proceedings only, if it would not be appropriate to apply the presumption.
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time if the court considers it to be in the best interests of the child concerned.
In the current case, it is axiomatic that the parties concerned have no parental relationship with one another, let alone a functioning one. At present each asserts that the other is a malign influence in X’s life – from Ms Benson’s perspective, Mr Benson is a poor parental role model because of his violent conduct – from Mr Benson’s perspective, Ms Benson is intent on ensuring that he has no relationship with X for reasons to do with the satisfaction of her own emotional needs.
In these circumstances, it is clearly inappropriate for the presumption of equal shared parental responsibility to be applied, at this interim stage. Accordingly, it falls to the court to determine what it considers to be the best outcome for X, at this stage, according to the various considerations contained within section 60CC, bearing in mind the truncated nature of the hearing available, at the interim stage, which limits the court’s capacity to reach concluded findings of fact.

(c) Considerations relating to family violence and abuse

Abuse, in respect of a child, is defined by section 4(1) of the Family Law Act. It means:
(a)     an assault, including a sexual assault, of the child; or
(b)     a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)     serious neglect of the child.
It is Ms Benson’s case that X has been exposed to family violence, emanating from his father, in the past and this has caused him a serious level of psychological harm.
The recent changes to the Family Law Act, relating to family violence, are significant ones. The key amendments are designed to “prioritise the safety of children in parenting matters”.[24]
[24] See Supplementary Explanatory Memorandum (Senate) Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011
The recent amendments have also inserted new definitions into the Act. In particular, family violence is defined by section 4AB(1) of the Family Law Act. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”
Interestingly, the legislature has provided a list of examples of behaviour, which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
·An assault;
·A sexual assault;
·Stalking;
·Repeated derogatory taunts;
·Unreasonably withholding financial support.
Accordingly, family violence means not only violence, which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that coerces or controls that person.
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”. Again, the legislation provides a list of non-exhaustive examples of situations in which a child may have been exposed to family violence.
Again, the legislature has provided a list of situations, which may constitute a child being exposed to family violence. These include the following:
·Overhearing threats of death or personal injury;
·Seeing or hearing an assault of a member of the child’s family by another member of the family;
·Comforting or providing assistance to a member of the child’s family violence, following an assault;
·Being present when police or ambulance officers attend at an incident involving an assault.
Exposure to family violence represents a multi-faceted danger to children. At its most obvious level, it may represent a direct risk of injury to the child concerned. However, more often, it may cause a child to be at risk of living with fear, insecurity and vigilance because of a fear that a parent perpetrating violence will abuse their other parent, whom they love.
In T & N,[25] Moore J, after reference to social science research, identified the highly detrimental consequences, to the wellbeing of children, of being exposed to family violence. She said as follows:
“They are terrified and simultaneously come to accept it as an expected part of life; they may learn that violence is acceptable behaviour and an integral part of intimate relationships; or that violence and fear can be used to exert control over family members; they may suffer significant emotional trauma from fear, anxiety, confusion, anger, helplessness and disruption in their lives; they may have higher levels of aggression than children who do not have that exposure; and they may suffer from higher anxiety, more behaviour problems and lower self-esteem than children not exposed to violence. Clinical profiles for children who witness domestic violence include post-traumatic play, diminished ability to regulate affect in the forms of hyper-arousal, numbness, emotional constriction, a low frustration threshold, nightmares and other sleep disturbances, aggressive behaviours, intense and multiple fears, regression in developmental achievements, and disturbances in peer relations.”
[25] See T & N (2003) FLC 93-172 at 78,760
Given the combination of the definition of abuse and family violence, contained in the Act, it is necessary that issues of family violence be closely examined by the court, bearing in mind the serious potential consequences exposure to family violence may have for any child concerned. In particular, the court must consider the psychological consequences arising, particularly whether the child concerned has suffered serious psychological harm.
As is the case in the present matter, it is often difficult for the court to reach definite conclusions as to what is the precise nature of the violence which has occurred between the parties to an intimate familial relationship; who has been the major proponent of that violence; what is the potential lethality of that violence in future and so its likelihood of re-occurrence; the degree and extent of any exposure to such violence by the children of those parties; and particularly what are and have been the psychological consequences for these children.
This is because family violence invariably arises within the private confines of a family home, in the absence of independent witnesses. Its victims may suffer a range of emotional responses, such as embarrassment, shame and indeed fear, which render the reporting of the violence to appropriate authorities difficult and accordingly its independent verification problematic.
In addition, the victims of family violence are intimately connected with the perpetrator of the violence concerned. This situation, of itself, creates emotional conflict and doubt. It is however now generally recognised that family violence is prevalent in all social settings and walks of life and represents a corrosive threat to the emotional well-being of children.
Accordingly, I am required to closely consider the parties’ competing claims of family violence. It is true that more often than not men, rather than women, are the perpetrators of family violence. But there can be no hard and fast rule in this regard and I must be careful of the danger of stereotypical judgments.
In this case, both parties assert that the other behaved in an aggressive and abusive way towards him or her. The wife asserts that the husband’s use of alcohol was a catalyst for his violent behaviour towards her. The latter stages of the parties’ relationship seem to have been difficult and unhappy from both their perspectives.
Family violence can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned. Obviously the latter behaviour is the more damaging so far as children are concerned.[26] Not all incidents of family violence will be necessarily damaging for a child.
[26] See JG & BG (1994) 18 Fam LR 255 at 261
Given that family violence is not homogenous in its qualities and can arise in a variety of context, at the interim stage, it is necessary for the court to assess the degree of risk which may come to any child concerned, if he or she comes into contact with the perpetrator of the alleged violence. It may also be necessary for the court to assess the consequences of such an outcome for the other parent and victim of the alleged behaviour.
Ms A described Ms Benson as being highly anxious. Certainly the process of professionally supervised time has been an abject failure. In this context, Mr Benson asserts that Ms Benson has either consciously or unconsciously projected her anxiety onto X, which has resulted in a situation where the supervised time, recommended by Ms A was doomed to fail.
This is a central consideration at the present time. It is Ms Benson’s contention that she was only being reactive to the child’s own inherent anxiety, arising from his own experience of his father. Accordingly, it is the underpinning of her case that there is an appreciable risk that X will come to some form of emotional harm, if he spends time with his father, in any form whatsoever, because of Mr Benson’s prior conduct.
In A v A[27] the Full Court of the Family Court said as follows:
“The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party’s capacity as the resident parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance.”
[27] A v A (1998) FLC 92-800 at 87,996
Children have the capacity to be remarkably perceptive to the emotions of adults around them, particularly, for obvious reasons, those upon whom they are emotionally dependent. Even if children cannot articulate those emotions or cognitively understand them, they may act out or replicate the emotions of such adults.
Mr Benson, supported by the independent children’s lawyer, wishes the court to move beyond a regime of professional supervised time for X, which in objective terms, is likely to provide an environment which is completely physically safe for X and embark upon a process in which the two interact without any external form of scrutiny or supervision.
Neither Mr Benson nor the independent children’s lawyer have any concrete proposals as to how this would occur and particularly how X would physically pass between his two parents, who have no facility to communicate with one another and clearly mistrust one another significantly.
If Ms Benson is anxious about X spending time with his father, the child is likely to pick up on this anxiety, regardless of whether it is objectively based or not. As such, X will react to it. Accordingly, the implementation of the father’s proposal, in the short to medium term, may result in X becoming anxious in turn, with perhaps some deleterious psychological consequences for him.
At the very least, any period leading up to X spending time with his father is not likely to be a happy experience for him, not least because of his mother’s probable reaction to it. As such it seems highly unlikely that the father’s proposal can be implemented seamlessly.
Accordingly the implementation of the father’s proposal represents an experiment for the court, the results of which are highly uncertain. The question for the court is whether such an experiment is warranted, at this interim stage, following its necessary consideration of the applicable section 60CC factors.
From Mr Benson’s perspective, such an experiment is clearly warranted, given the very significant risk that, if nothing concrete is put into place now, it may mean that X will lose the chance of having any proper level of relationship with his father and paternal family.
In support of his position, he points to the fact that, given the theoretically easier intervention of professionally supervised time has failed, the court has to embark on a more ambitious intervention, given his view that the deleterious long term consequence for X of losing a relationship with his paternal family grossly outweighs any short term difficulty for the child.
In addition, Mr Benson contends that there are significant risks, arising for X, from unnecessarily curtailing a potentially viable relationship for him on the basis of uncertain and contested claims of family violence. These various considerations must be balanced against one another, bearing in mind the parameters of an interim hearing.

Section 60CC considerations

I now turn to consider the primary considerations, arising under section 60CC(2) bearing in mind the limited nature of the hearing before me and the untested nature of much of the evidence arising in it.
At present X has no relationship with his father. If I accept Ms A’s evidence, which does not seem to be farfetched, he does not remember what his father looks like, having seen him only once toward the end of a period of approximately four years.
Does X have the potential to derive benefits from having a meaningful level of relationship with his father? On the basis of Ms A’s evidence, which I acknowledge has not been subject to any extensive scrutiny, the answer would appear to be an affirmative one.
Ms A described X as having a level of curiosity about his father. She described Mr Benson as an empathetic parent. Parents are a source of unconditional love for their children. The observed interaction described by Ms A was replete with meaning for both X and Mr Benson. At its conclusion the two hugged. X sought a last glimpse of his father, through the blinds, as he returned to his mother. This was a moving account.
I note the provisions of section 60CC(2A) and the need to give primacy to the protection of X from being subjected to or exposed to family violence and suffering either direct physical injury or some form of psychological harm as a consequence. Fundamentally, this requires the court to undertake some form of assessment of risk. What is the risk of the harm, describes in the section, befalling X, if he spends time with his father? If there is a risk, what is a proportionate response to the degree of risk arising?
In an objective sense, I would assess the risk of X suffering physical harm, as a consequence of spending time with Mr Benson, as being remote. I do not believe that he would willingly hurt the child. The possibility of this is not congruent with Ms A’s assessment of him, as an empathetic parent. In addition, if the parties are kept at arm’s length from another, the possibility of there being some direct altercation between them, to which X is exposed, seems small.
In any event, the allegations raised by Ms Benson relate to incidents four years ago, which occurred in the context of an unhappy and, on both parties’ accounts, a deeply dysfunctional relationship. The parties have now been removed from this shared and dysfunctional situation. In addition, there is scant objective evidence to support Ms Benson’s allegations.

Given X’s age, at the time of the parties’ separation, when taken with the report of Ms A, it does not seem probable that X will be re-traumatised, in some way, by the mere fact of having direct exposure to his father, a person whom he cannot know in any proper sense of the word.
What knowledge X has of Mr Benson is likely to have come to him from inchoate memories of his early childhood; from the brief meeting with his father, in the presence of Ms A; and significantly, at second hand, from Ms Benson herself.
The first issue can only really be explored in an expert setting – what memories and in what form does a seven year old child have from the time he was three and a half? It is also likely to be an issue of professional controversy. The second relates an anodyne experience for X. The third is unknown to me.
Following the observed interaction between X and his father, Ms A made, in my view, a cautious and appropriate recommendation for X to spend extremely modest amounts of time with his father in an environment, which must be regarded as being completely safe and secure in any objective sense. The reports indicate that X became infused with anxiety in this context.
It is difficult to ascribe with certainty what is the likely provenance of this anxiety. However, it seems more likely than not, given Ms A descriptions of her, that Ms Benson herself is the seminal origin of this anxiety for the child. I reach this conclusion for the following reasons.
There is the possibility that Ms A has incorrectly recorded her impressions of X, whilst he interacted with his father. However, given the wealth of detail in her description of the interaction, this seems unlikely. Another conceivable explanation, for the reportedly positive reaction of X to his father, is that it represented some form of aberration, on X’s part, from his usual behaviour.
Again, given X had no prior exposure to his father, for a period in excess of three years prior to the observed interaction, this also seems improbable. It might also be asserted, I suppose, that X is just a very shy, very reticent and very sensitive child, who became completely overwrought by the environment of the children’s contact centre, which was unfamiliar to him.
This may conceivably be so but in objective terms, in the environment of the children’s contact centre, the only thing X had to fear was fear itself. In my view, with the assistance of a properly motivated adult, most children should be in a position to overcome such inchoate fears. Having carefully read the report of the children’s contact centre, I can find scant evidence of Ms Benson either encouraging or ultimately directing X, to take part in the process ordered by the court.
In all these circumstances, the more logical explanation for the failure of the supervised process of supervision is that it emanates largely from Ms Benson’ unwillingness to let it proceed, either as a consequence of her own anxiety or for some other more covert motivation. Dr J is unable to find a psychiatric explanation for Ms Benson’s anxiety. He opined however that it was “inevitable that [Ms Benson’s] own emotional reaction would be evident to X.”
In this context, Ms A recommended that Ms Benson undertake some form of therapy to assist her with her anxiety. This has not occurred. In any event, from Ms Benson’s perspective, she does not have any issue with her anxiety about Mr Benson, as she asserts that her behaviour is perfectly rational and understandable. Accordingly the general efficacy of such therapy may be moot.
This is the central evidentiary issue, which cannot be definitively resolved in the context of interim proceedings such as these. In any event, the establishment of family violence, by Ms Benson against Mr Benson, does not automatically mean that there will be no relationship between X and his father. Rather, it is one consideration, albeit a paramount one, amongst many other considerations, which relate to X’s best interests.
In all these circumstances, it seems inevitable that, if the court proceeds with the intervention proposed by Mr Benson and the independent children’s lawyer, X will be exposed to the mother’s anxiety (and perhaps, if Mr Benson is correct, her passive yet aggressive opposition to X having any form of relationship with his father), which, in turn, is likely to have uncertain, but more likely than not, emotionally deleterious consequences for X.
Although it a clumsy metaphor, X is a sponge to the emotions, which surround him. He lacks the cognitive maturity to be able to interpret those emotions in any intellectual fashion and so defuse them in his mind. Rather, he can only soak them up and respond to them emotionally.
At this stage, a change of living arrangements for X, to circumvent his exposure to this anxiety, cannot be countenanced. This is because X has lived exclusively with his mother for the larger proportion of his life. To change this regime, in order to pursue an uncertain relationship with his father, at this provisional stage, cannot be justified in the context of X’s best interests. At this stage, much is unknown, particularly the precise aetiology of each party’s motivation in the case.
The next issue is whether it will be possible to inoculate X, in some way, against his mother’s anxiety and whether, notwithstanding the possible deleterious consequences for X, the greater good of him being re-united with his father, in some way, justifies the court in taking the experiment proposed by Mr Benson and the independent children’s lawyer.
This is not an easy question to answer, particularly at the interim stage and without further reference to the court appointed expert. In part, it must be answered by reference to what Ms Benson proposes. Neither Dr W nor Dr J has, in my view, been fully briefed about the level of complexity arising in this matter. They have not been provided with any input from Mr Benson and have apparently not read the report of Ms A.
In this context, Dr W expresses himself as being unsurprised that X does not want a relationship with his father and his [X’s] apparent symptoms could be interpreted as a response to trauma during childhood. These views can only originate with Ms Benson. They are not consistent with those of Ms A, who reported from a position of professional neutrality and as a person who had the significant advantage of actually seeing X in the presence of his father.
Dr W acts on the assumption that the history provided to him by Ms Benson is correct. The same is true in respect of Dr A. Indeed the same criticism can be levelled at the advice provided to Mr Benson by Mr V. In these circumstances, it is inevitable that Mr Benson will be mistrustful of Dr J, a person whom he played no part in selecting and whom he perceives to have already been influenced against him, as were Dr W and Dr A before her.
From my perspective, I am concerned that I have not been provided with any detail as to what Dr J hopes to achieve and the means by which she will achieve it, particularly what role it is proposed Mr Benson will take part in such a process. Ms Benson asserts that she wishes for Dr J to provide an opinion and a psychological assessment of X.
I appreciate that Ms A is not a psychologist but she was tasked, by the independent children’s lawyer, to provide her opinion on the best way forward in this case. The independent children’s lawyer was satisfied that she had appropriate qualifications and experience to undertake this task.
In these circumstances, I am concerned that the engagement of Dr J represents a doubling up of resources, without any obvious advantage. In addition, I am concerned that Dr J cannot be regarded as an impartial expert, given her connection to the mother.
In all these circumstances, Mr Benson asserts that the proposed involvement of Dr J is likely to represent a further barrier to him having any form of relationship with X, particularly in the short to medium term.
Certainly there is no indication that Dr J will be engaged to deal with Ms Benson’s alleged anxieties or to inoculate X against them. In these circumstances, I can well understand why Mr Benson would regard Ms Benson preferred option as being a form of self-filling prophecy, on her part, in respect of what she wants to happen in the case.
In my view, this leaves the court with two major options. Firstly, the easier one in the short term, is to defer any next step until evidence has been taken from each of the parties, particularly within the contentious evidentiary matrix of family violence allegations vis-à-vis those of parental alienation, with the overlay of the expert evidence regarding the potency of memories of alleged childhood trauma for X.
The advantage of this is that the court will be able to make its own assessment of the veracity of each party’s claims in respect of the nature of their relationship. The disadvantage of that is that it will delay the implementation of any possible measures which may lead to the implementation of some form of relationship between X and his father.
It may also have the effect of further polarising the positions of the parties themselves and render it inevitable that the court will have to make an invidious decision – namely the only mechanism by which X is likely to have an appropriate level of relationship with his father is if he lives predominantly with his father and no matter how unpalatable such an outcome may be in the short to medium term as it is justifiable in a long term assessment of X’s overall best interests.
In this context, although no doubt Mr Benson regards her views as being self-serving and insincere, Ms Benson has expressed to a number of professionals, including Dr W and Dr J, that she wishes X to have some form of relationship with his father.
Accordingly, ostensibly at least, the parties have this in common. In these circumstances, it may well behove the court to at least contemplate an experiment prior to the inauguration of an exercise which may be tantamount to all or nothing from each of their perspectives. Essentially put Ms Benson to her word that she does want X to spend time with his father and is personally at a loss as to what to do next.
This leads to the second option which will involve the court constructing some form of regime which will see X spending time with his father, outside of any structure of professional supervision and without exposure to the direct agency of the mother in its implementation. It is, of course, a process fraught with all manner of difficulties, not the least of which is that the parties themselves are largely bereft of suggestions in respect of it.
Prior to turning to this issue, it is appropriate to turn to the relevant additional considerations arising under section 60CC(3). X’s views about spending time with his father are uncertain. X’s most significant relationships are with his mother and members of his maternal family. To all intents and purposes, he currently has no relationship with his father or paternal family.
Mr Benson is open to criticism for allowing his relationship with X to fall into abeyance. He has not participated in any aspect of X’s life since the parties separated. He has however provided child support, as assessed for X.
The mother’s proposal, at this juncture, does not represent any significant change of circumstances for X. The father’s final position represents a massive change. The court is not considering that change at this point.
In the short to medium term, the interim proposal of the father and the independent children’s lawyer, although currently unformed, represents some change for X, but in objective terms not a major one – X will remain in the predominant care of his mother. However, I concede any option, no matter how modest or hedged with precautions, has the potential to be blown out of proportion to what it is in objective terms, with possible adverse consequences for X.
There are significant logistical issues arising in this case. Mr Benson will have to come to Adelaide to interact with X, for possibly modest amounts of time. It seems inappropriate that there be a total immersion of X into his father’s care for an extended period of time. In addition, this is not in accordance with Ms A’s recommendations.
Accordingly, Mr Benson may have to come to Adelaide fairly regularly to spend time with X, which is interspersed over an extended period. This has the potential to be expensive. However, Mr Benson is not without financial resources and has indicated a commitment to having a relationship with X. As such, the practical difficulties are capable of being overcome, at least in the short to medium term. The emotional difficulties arising in the case are likely to be significantly more problematic.
The respective parental capacities of the parties and their level of insight into the very many responsibilities arising from being a parent are difficult to gauge at this stage. Ms Benson, no doubt, asserts that Mr Benson has demonstrated himself to being a flawed parent by his conduct both before the parties separated and up until now, as he effectively withdrew from X’s life. On the other hand, Mr Benson asserts that Ms Benson has done nothing material to assist X to have a relationship with him. There is some substance to both parties’ perspectives, in this regard, in my view.
I must not and cannot lose sight of X’s age. He is not yet seven years of age. He cannot be held responsible for the conflict and confusion which surrounds this case. He is not to be rewarded, like a prize, to the parent whom I consider to be the more deserving or hard done by. His best interests remain paramount.
Ms Benson seeks the transfer of the case to the Magellan program conducted by the Family Court. The Magellan program is a specialised list of cases involving serious allegations of physical and sexual child abuse, which require the involvement of state based child protection authorities. In my view, this case does not meet the program’s relevant selection criteria. Families SA have nothing to add to the case. An independent children’s lawyer has already been appointed and input obtained from an independent expert.
Ultimately, no matter what is the outcome of these interim proceedings, it seems highly probable that there will have to be a detailed adjudication of the various factual issues in dispute between the parties. In my view, this is a highly complex case, which presents no obvious or ready solution. The positions of the parties are polarised in the extreme and they appear to have no facility to reach any form of compromise.
In these circumstances, it behoves the court to consider in which court the case can be finalised sooner, given its innate level of complexity. However, I also bear in mind that I have some familiarity with it and neither Mr Benson nor the independent children’s lawyer seeks its transfer as yet. In addition, this court is called upon to make some interim arrangements for X and, in pragmatic terms, if it makes orders to this effect, it makes sense that this court should oversee their consequences.

Conclusions

After what I hope has been a great deal of careful thought, I have come to the conclusion that a consideration of X’s best interests warrants that the court should attempt some process by means of which he is given an opportunity to interact with his father, whom I accept loves X and so have the capacity to be a beneficial aspect of X’s life.
I appreciate any such regime will be experimental in nature and its ultimate outcome unknown. However, given the positive aspects of Ms A’s report, I have come to the view that a careful and properly calibrated experiment is warranted. In my view, the major threat to such an experiment is not likely to reside in either Mr Benson or X but rather in Ms Benson. In an objective sense, I assess that X will be completely safe from physical harm, whilst he spends modest periods of time with his father.
Given the complete failure of the process of supervised time, which involved Ms Benson delivering X to the contact centre and remaining in the vicinity whilst X was with his father, it will be necessary for the court to consider other mechanisms by which X passes between his parents. There are no honest brokers available. In these circumstances, the only available place for handover would appear to be X’s school, in the absence of Ms Benson.
Thereafter, it appears to me to be appropriate that in one week, provided Mr Benson is able to come to Adelaide, he should spend time with X during that week, from after school on say Monday and Wednesday until around 6.30 pm. During this period father and son can play together and then have an evening meal at a locale likely to be appealing to a child of X’s age.
Then Mr Benson can drop X back to his mother’s home, signalling his arrival by sounding his car horn or by sending a text message to Ms Benson’s mobile phone, so that X may alight from the vehicle and then walk unassisted to the front door of his home. This will avoid the necessity for any direct interaction between the parties themselves and the exposure of X to any overt expressions of emotion from either of them.
In order to make this week-long visit viable, I propose to add a further weekend visit. Ms A, after the process of professionally supervised time, recommended a Saturday visit. Unless Ms Benson is removed from the context of exchange, I have grave concerns that this can work. The alternative is collection from school on Friday afternoon, with return the following Saturday afternoon.
Ms Benson will greet such a prospect with consternation, but unless she can propose some alternative mechanism by means of which X is exchanged between his parents on Saturday afternoon, I can see no alternative. This Saturday visit is, in my view, essential for the normalisation of the paternal relationship. It is on this occasion that father and son can kick the footy, go to a sporting event, a movie or the zoo or some other child focussed activity, as envisaged by Mr Benson.
I propose that there be two such regimes of weekly time separated by approximately six weeks, which can occur following the end of term three school holidays. Again, in the absence of any alternate proposal from Ms Benson, the need for a neutral handover point in the form of school premises is integral to this process.
Earlier, I spoke of the possibility of X being inoculated against the consequences of his mother’s anxiety (and possibly passive or active opposition) to him spending time with his father. As I am at pains to point out, this is the greatest potential risk to X. X needs to be aware, if at all possible, that he is not responsible for the situation which confronts him and be aware that it has resulted as a consequence of an agency independent of both his parents, namely the court.
In this regard, if at all possible, I would want Ms A, in conjunction with Mr Kent, to explain the orders, which have been made to X and provide him, in terms likely to be understandable by a child of X’s age, the rationale for the making of the orders, particularly that the orders are the product of an agency external to both his father and mother.
If Ms A deems it appropriate, I propose that either she or Mr Kent could read a letter, from me, to X explaining the orders. I would want X to keep the letter, which could be in the following terms:
“Dear X,
My name is Judge Brown. Your mum and dad have come to my court and asked me to decide when and where you should see your dad.
I know your dad has not seen you for a long time. He told me that he loves you and wants to see you. I have decided that you should see him after school on a few times and spend time with him on a few Saturdays over the next couple of months before the Christmas holiday.
Your dad will collect you from school and drop you back at home. I expect you and your dad will be able to do some fun things together. Maybe you could go to the movies or have a pizza together or whatever you would like to do.
Mr Kent is the lawyer I have asked to be your lawyer in the court. He organised for you to see your dad with Ms A. I have asked them both to explain what is going to happen next to you so you don’t have to get scared about it. Perhaps, you could think about what you would like to do with your dad and let them know what it is.
After you have seen your dad I have asked Ms A to see you again, so you can tell her how it went and she can tell me and Mr Kent what you said.
I understand you might be worried about all of this and how your mum feels about it too. But I think it will be alright. Anyway this is what I the judge have decided is best for now.
Bye for now
Judge Brown”

It is also likely to be appropriate for Mr Kent to alert X’s school about these orders so that the school authorities can provide whatever support is available to assist X with the orders. It is implicit in what I have decided that Ms Benson will play no part in X transitioning to his father’s care. It may be possible for a teacher to assist in this regard, but I appreciate that this may not be possible.
Following two cycles of this arrangement, separated by a period of around about six weeks, I will direct that Ms A revisit X to ascertain what has been his reaction to this arrangement. In my view, this will be also be the appropriate stage at which to determine what is the next step to be taken in the case, particularly whether it should be fixed for final determination and in which court this should occur.
I appreciate that Mr Benson will have to commit to coming to Adelaide on two occasions prior to the end of the year for a period of around a week in each case. I also acknowledge that there will be a significant level of expense involved particularly because he will have to arrange some form of suitable accommodation for himself and on one night for X also.
It will also be necessary for Mr Kent to liaise with Ms A as to times when she can be engaged to provide the input into the case, which I have determined is necessary. In order to allow both Mr Benson and Mr Kent to make the necessary inquiries and put the resulting arrangements into place, I will simply order that the independent children’s lawyer formulate a minute in terms of these reasons for judgment within fourteen days of the date of this judgment. I will also grant liberty to re-list the matter on short written notice to deal with any consequential matter.
I hope I have considered this difficult matter carefully and thoroughly. The orders I propose are, in my view, conservative ones designed to progress X’s relationship with his father, given the failure of the process of supervised time.
Given the content of Ms A’s report, I do not think that it would be in X’s best interests for the court to throw up its hands in despair and do nothing about advancing the relationship between X and his father in the short to medium term.
In my assessment, the more time which passes between the successful re-introduction of X and his father, upon which Ms A reported, and any further introduction between the two, the more problematic the case becomes. For this reason, I have embarked upon a modest experiment, which has some safeguards incorporated into it.
The alternative is do nothing until a trial can be scheduled or embark upon the process proposed by Ms Benson, which I assess to be uncertain in both its aims and methodology and, as such to be problematic in terms of its prospects of success. For these reasons, I have decided to proceed in the manner outlined above.
I appreciate that Ms Benson will consider my judgment to be flawed. However, she has said she wants X to have some form of relationship with his father. I take her at her word. Her attitude will be instrumental in whether the next steps, for X, as I have outlined them, can occur without undue stress for the child. Given the failure of the process of supervised time, in my view, the court has no real alternative to the orders as I have conceived them.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding two hundred and forty-nine (249) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate:

Date: 25 September 2014

[2014] FCCA 2204

25 September 2014

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