Setchell & Batten

[2016] FCCA 2980

FEDERAL CIRCUIT COURT OF AUSTRALIA

SETCHELL & BATTEN [2016] FCCA 2980

Catchwords:
FAMILY LAW – Interim arrangements for child aged ten months – consent orders made for time to be supervised by independent person – mother has unilaterally ceased time following memorandum to the court prepared by family consultant – role of family consultant – high conflict – allegations of family violence – nature of interim hearing – best interests.

Legislation:

Family Law Act 1975, ss.4(1), 4AB, 11A, 11E, 11F, 60CA, 60CC, 61DA, 65DAA

Cases cited:
Goode & Goode  (2006) FLC 93-286
Deiter & Deiter [2011] FamCAFC 82
M & M (1988) FLC 91-979
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
Eaby & Speelman (supra)
B & B (1993) FLC 92-357
W & W [Abuse allegations: unacceptable risk] [2005] Fam CA 892

Applicant: MR SETCHELL

Respondent: MS BATTEN

File Number: ADC 2489 of 2016

Judgment of: Judge Brown

Hearing date: 1 November 2016

Date of Last Submission: 1 November 2016

Delivered at: Adelaide

Delivered on: 17 November 2016

REPRESENTATION

Counsel for the Applicant: Mr Bowler

Solicitors for the Applicant: Marciano Lawyers

Counsel for the Respondent: Mr Hemsley

Solicitors for the Respondent: Diane Myers Pty Ltd

ORDERS

Until further or other order

1. Orders 2, 3, 4 and 5 of the orders made on 22 August 2016 be discharged.

2. Upon the parties acceptance into the supervised contact program offered by the (omitted) Children's Contact Centre, the father spend time with the child of the relationship X born (omitted) 2016 as follows:

   (a)there be no more than one session per fortnight which is not to exceed two (2) hours in duration;

   (b)each period is to be subject to the supervision of the Director of the Centre or his/her nominee;

   (c)the visits are to be at the expense of the father; and

   (d)after six visits the father is to obtain a report from the Director of the Centre regarding the children’s reactions to the visits.

3. The application in a case filed 21 October 2016 is dismissed.

4. The contravention application filed 14 October 2016 is adjourned to 19 June 2017 at 2:15pm for hearing and all other applications listed on that date for directions.

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

.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2489 of 2016

MR SETCHELL

Applicant

And

MS BATTEN

Respondent

REASONS FOR JUDGMENT

Introduction

1. These interim proceedings raise issues to do with family violence in the context of a very young child and the apparent failure of process of supervised time.  In difficult and conflicted circumstances, the issue for the court is what is the next step to take?

2. Should there be the inauguration of a more rigorous process of supervised time at a children’s contact centre which will necessarily involve a significant delay in its implementation, or should there be an advance to a less formal regime of lay supervision by a relative. 

3. Mr Setchell “the father” and Ms Batten “the mother” are the parents of X born (omitted) 2016.  At present X lives with her mother.  Mr Setchell aspires to have as close a relationship as possible with X, given her tender years. 

4. The parties separated after a brief relationship when X was around three months of age.  Since that time, he has had limited time with her.  It is the mother’s case that the father is a violent and controlling person. In particular she asserts that there is currently available to the court cogent corroborative evidence to support her allegation that she has been the victim of Mr Setchell’s controlling and coercive behaviour.

5. The father commenced these proceedings on 6 July 2016.  On an interim basis, he sought orders that would allow him to have time with X on each Saturday between 10:00am and 4:00pm and each Wednesday between 5:00pm and 7:00pm.  He did not formally accede to any need for his time with X to be supervised.

6. Ms Batten responded to this application on 18 August 2016.  She proposed that X spend supervised time with her father each Saturday between 2:00pm and 4:00pm.  She proposed that the time occur either at a contact centre or under the supervision of an independent professional person to be nominated by her and whose services would be paid for by the father. 

7. In addition, Ms Batten sought orders to direct the father to undertake a psychiatric assessment and to participate and complete an appropriate anger management course.  These interventions being directed towards what she perceived to be Mr Setchell’s significant difficulties in curbing his impulses.

8. At the request of the father, his application was listed urgently on 22 August 2016.  On this date, after some discussions between the parties conducted via their respective legal advisors, it was agreed that X would spend time with her father on each Sunday between 2:00pm and 4:30pm subject to the supervision of Mr F. 

9. An order was also made again by consent that the parties would enrol with the (omitted) Contact Centre with the intention of there being some supervised visits between X and Mr Setchell when the service was able to offer such a service, which was likely to be in excess of three months away. 

10. In my experience this is a common phenomenon in high conflict cases.  The perceived advantage being that the CCS in question will provide a report after six visits which will very often be useful in forensic terms for describing the quality of relationship between the child and parent concerned invariably a father.  This process is both cheaper and usually quicker than a full family assessment report.

11. It was also agreed between the parties that they would attend upon a family consultant pursuant to the provisions of section 11F of the Family Law Act 1975 in order “to discuss the care, welfare and development [of their child and] endeavour to resolve any differences [between them].”   The family consultant concerned was Mr P who saw the parties on 11 October 2016.

12. As will become clear in due course this intervention did not have the purpose stated in the order.  It did not assist the parties to resolve their differences.  Rather, it has exacerbated these differences as Mr P’s memorandum to the court seems to have been instrumental in de-railing the regime of supervision time envisaged in the orders of 22 August 2016.

13. Mr F has provisional registration as a psychologist.  He offers a service to separated parents which enables a parent to spend time with a child subject to his supervision and oversight.  He charges not insignificant fees in respect of this service. 

14. For individuals such as the father, the appeal of Mr F’s services is that there is no waiting time for them and he offers a significant level of flexibility in that he can undertake his role at private premises, which is what he did so far as Mr Setchell was concerned.

15. Children’s Contact Centres “CCCs” are largely funded by the Commonwealth Government.  At present, the demand for their services throughout the country in general and South Australia in particular is high.  As a consequence, there are significant delays in parents being accepted into them.  In addition at best CCCs can offer no more than two hours of supervised time per fortnight.

16. Mr F oversaw Mr Setchell’s time with X on 4 September; 11 September; 18 September; 25 September; 2 October; and 9 October 2016.  He has provided a report of each of these visits.  His retainer as the supervisor of Mr Setchell’s time with X, was terminated by means of a letter from Ms Batten’s solicitor delivered to him on 12 October 2016. 

17. At the same time, Mr Setchell’s solicitor was provided with a letter which read as follows:

    “I refer to the report following the child dispute conference … Mr P consultant has recommended that the current arrangements cease as a matter of urgency and that supervised time contact resume when the Children’s Contact Service facilities become available.”

18. It is Ms Batten’s position that she has no confidence in Mr F’s professional competence as she is concerned that X was potentially put at risk whilst she spent time with her father on these various occasions.  The implication being that Mr F was derelict in the performance of his supervision responsibilities.

19. In particular, she is concerned that X was not properly nourished and hydrated by being provided with the formula and other nutrients which she (Ms Batten) had provided for this purpose and, in addition, Mr F permitted Mr Setchell to take X outside of the premises which had been nominated for each supervised visit. 

20. In all these circumstances, it is Mr Batten’s position that X was returned to her distressed following these supervised visits.  It is her position that Mr Setchell has demonstrated no regard for X’s best interests by disregarding her directions in respect of the child’s feeding and, as indicated previously, she has no confidence in Mr F’s capacity to direct him in respect of them. 

21. On the other hand, it is Mr Setchell’s position that the visits proceeded satisfactorily and this is borne out by Mr F’s report.  He concedes that X did not consume all of the formula and other nourishment which had been provided for her.  However, it is his position that the child was adequately hydrated with water and her nappy was properly changed. 

22. Mr Setchell asserts that if X was emotionally distressed following her return to the mother, this distress is likely to be attributable to Ms Batten’s own emotional insecurities and fears which X has picked up upon rather than anything to do with the care provided by him to X, which he believes was appropriate.   In this regard, he relies upon the reports of Mr F.

23. The breakdown of these arrangements for Mr Setchell to spend supervised time with X has resulted in a flurry of further applications.  On 14 October 2016, Mr Setchell filed a contravention application, in which he alleges that Ms Batten has unilaterally terminated his time with X, in contravention of the court’s order of 22 August 2016. 

24. On 21 October Ms Batten has filed an application in a case, in which she seeks to suspend that order and in lieu thereof that Mr Setchell spend two hours per week, with X, subject to the supervision of the (omitted) Children's Contact Service. 

25. I note that this order is likely to be difficult to implement in practical terms as the service does not offer time in the parameters specified.  Rather, the service will be able to offer two hours of supervised time per fortnight.  As previously indicated, the delay in acceptance is likely to be considerable.  I have been advised that the delay is between 12 and 14 weeks. 

26. From the father’s perspective this delay is unacceptable.  He proposes that his time with X be extended rather than diminished.  In addition to the order for Sunday time, he seeks an order that he spend between 5:00pm and 7:00pm each Wednesday.  In deference to the mother’s concerns, he proposes that his time with X be subject to the supervision of one or other of his parents, Mr T or Ms D. 

27. Neither of the paternal grandparents has filed a formal affidavit in these proceedings.  The father’s counsel, Mr Bowler describes them as being honest and reliable individuals both aged in their early sixties.  As the parents of four children, it is Mr Bowler’s submission that they are experienced in providing for the needs of a child of X’s age.  It is proposed that the child be exchanged, to give effect to these orders, at the food court of a shopping centre convenient to the mother. 

28. Ms Batten is vehemently opposed to either of the paternal grandparents being the supervisors of the father’s time with X.  It is her position that she has had unfortunate experiences with both of these individuals which cause her to mistrust them.  She believes that they have a derisory attitude towards her and will not be protective of X, given the significant issues of family violence, which she has raised in these proceedings. 

Mr F’s report

1. Like all the evidentiary issues arising in this case, Mr F’s report and its methodology have not been subject to any scrutiny.  As previously indicated, Ms Batten has expressed concerns in respect of Mr F’s professionalism.  She deposes as follows:

   “I would describe the reports as being little more than a basic rundown of the father’s activities with X during his time with her.  The reports appear to lack any real substance and have not provided any real insight about the father’s level of child focus during his time with X.  I have also been concerned about the repeated inclusion of vague terms such as ‘child friendly’.”[1]

   [1]  See mother’s affidavit filed 21 October 2016 at paragraph 20

2. In particular, in various of his reports Mr F has indicated that Mr Setchell fed X pureed food and comforted the child until she fell asleep in his arms.  By way of example, on 2 October 2016, against the heading “3:10pm” Mr F records as follows:

   “Mr Setchell put a bib on X and sat directly in front of the pusher.  Mr Setchell fed X an entire serve of the provided baby puree and some water from a child-friendly cup.”

   Thereafter, Mr F records that Mr Setchell changed X’s nappy and when she began to cry, carried her in his arms until she fell asleep. 

3. During the following visit, on 9 October 2016 Mr F wrote as follows under the headings marked “2.45pm-3:15pm”.

   “Mr Setchell moved X to her bumboo seat and attempted to spoon feed X some mashed avocado.  X didn’t appear to enjoy the texture of the avocado so Mr Setchell spoon fed X some tinned Heinz pumpkin potato and beef from a 110 gram jar.  Mr Setchell sat X in a highchair and offered her a rusk to chew and continued to feed her the Heinz puree.  X soon became over tired and began to cry.  Mr Setchell picked X up and held her to calm her.  X fell asleep in Mr Setchell’s arms and Mr Setchell moved with X on his lap to the recliner sofa.”

4. Ms Batten has not referred to these particular entries.  She complains that Mr F did not ensure that Mr Setchell fed X the food which she had provided.  She also complains that Mr Setchell has provided the child with water rather than formula.  She also categorises Mr F’s reporting of his supervision of Mr Setchell and X as being glib in its terms. 

5. I am not in a position to resolve any factual issues between Mr F on the one hand and Ms Batten, on the other, regarding what did or did not happen during the period of time supervised by Mr F.  However, obviously Ms Batten herself was not present during these periods and Mr F is not likely to be aligned with either party.

6. It is Ms Batten’s evidence that X was returned to her, after spending time with her father, starving and dirty.  She asserts that only miniscule quantities of the food dispatched with the child were actually eaten.  Mr Setchell believes that Mr F’s record of his time with X is accurate.  Mr Bowler characterises the mother’s criticism of his client for providing the child with water as being wholly unreasonable.

7. In general terms, if Mr F’s reporting is accurate, the time between father and child was largely uneventful, with Mr Setchell attending to X’s needs whilst the child herself did not become emotionally distressed. 

8. Mr Bowler would also point to the modest extent of time which the father spent with the child as significantly undercutting the degree of risk arising from incomplete feeding and hydration.  At the end of the day, the child was away from Ms Batten for approximately 2½ hours out of the potential 168 hours of each week.

The mother’s allegations of family violence

1. The parties met in April 2015.  They separated on 11 June 2016.  Accordingly, the parties have only had a fleeting relationship with one another and have no experience of jointly caring for X together.  The mother became pregnant a few weeks after they had commenced their relationship.

2. It is the mother’s case that Mr Setchell did not respond well to the news of her pregnancy, which was unexpected.  She alleges that, on 11 September 2015, she was strangled by the father, following a verbal argument between the two.  In support of her position, she points to an SMS message from Mr Setchell, in which he apologised for his behaviour.  She asserts that this message provide clear corroboration of her allegation. 

3. On 3 January 2016, the mother alleges that the father was cruel towards her cat, which led to an argument between the two, in which he shook her dragged her by the hair, threw scissors at her and attempted to crush her.  At the time she was in an advanced state of pregnancy.  She also alleges that the father verbally abused her and damaged a door.

4. Ms Batten also alleges that she was regularly assaulted by Mr Setchell, who would hit her on the head with an open fist.  These assaults caused her to sustain dental damage.  She has provided a dental bill in respect of the treatment received by her.  It is her position that, following these assaults, Mr Setchell would invariably apologise to her for his conduct but was otherwise incapable of changing his behaviour for any extended period of time. 

5. The mother also alleges that the paternal grandparents were violent towards her at the (omitted) Hospital shortly after X’s birth.  At this stage issues had arisen about X’s feeding – the child was apparently not suckling, which led to the paternal grandmother criticising Ms Batten. This allegedly led the paternal grandmother to become agitated, which precipitated an unpleasant altercation in which both Mr Setchell and his mother got physical with Ms Batten, pushing and grabbing at her, causing her caesarean wound to open.

6. Ms Batten asserts that there was a further violent altercation between her and Mr Setchell on 7 May 2016, to which X was exposed.  She alleges that Mr Setchell totally lost control of his temper and attempted to pull the child from her arms.  She further alleges that she was pushed onto the floor after which the father knelt on her chest with his knees which caused her to have difficulty breathing.  In the same incident, she alleges that he damaged her mobile telephone and punched a hole in a bedroom door. 

7. Mr Setchell has not specifically responded to these various allegations.  In his initiating affidavit, he describes Ms Batten’s behaviour as being erratic and extremely irritable.  In general and pre-emptive terms, he denies having behaved in an aggressive and threatening manner towards her.  The implication of his first affidavit being that Ms Batten is likely to falsify complaints against him, in an effort to ensure that he does not have a proper level of relationship with X. 

Mr P’s child dispute conference memorandum to court

1. Mr P’s memorandum is a relatively short document of nine paragraphs.  Under the heading Risk factors, Mr P wrote as follows:

   “Ms Batten also said that X is unsettled and distressed for a significant period of time after each visit with Mr Setchell, and theorised that she may be affected by Mr Setchell’s emotional state. This understanding is in accordance with what is known about the sensitivity of infants to the emotional states of their carers.”

2. Ms Batten also indicated to Mr P that she had understated her concerns about Mr Setchell, in her affidavit material to the court because she did not wish to compromise the prospect of maintaining a good working relationship with Mr Setchell. 

3. In a brief assessment of the parties’ parenting relationship, Mr P expressed an opinion that Ms Batten was cooperative and supportive of contact to such an extent that she could be seen as being at risk of compromising X’s safety and wellbeing with the level and nature of her current commitment to that relationship.  Mr Setchell was described as being dismissive of the mother’s concerns. 

4. In this context, Mr P opined that X might be experiencing detrimental effects as a consequence of her exposure to her father given Ms Batten’s description of his behaviour, mental health, emotional state, anger management and parental competence.  Under the heading Future directions, Mr P opined as follows:

   If Ms Batten’s concerns about the current arrangements are accepted it may be important for X’s wellbeing that the current arrangements cease as a matter of urgency, and that supervised contact only resume when the Children's Contact Service facilities become available.

1. Mr Bowler, counsel for Mr Setchell is critical of Mr P’s memorandum submitting that it is lacking in both focus and objectivity.  In particular, he points to the fact that Mr P did not have access to Mr F’s records and so was not in a position to test Ms Batten’s view of what had occurred in the several sessions between X and Mr Setchell. 

2. From my perspective, it is clearly the case that it is a misstatement of Mr P’s memorandum when Ms Batten’s solicitor wrote to Mr Setchell’s solicitor indicating that Mr P had recommended that the current arrangements cease as a matter of urgency.  He did no such thing, rather he asserted that if the mother’s concerns were accepted the time should cease. 

3. However, Mr P did not explicitly indicate that he himself accepted these concerns other than he opined that Ms Batten appeared to him “to be very focussed on being cooperative and supporting contact and a good relationship between X and Mr Setchell.  Mr Setchell would submit that her actions in unilaterally ending the modest program of supervised time between him and X would indicate otherwise.

4. In this context, it is Mr Bowler’s submission that the court should not accept Ms Batten’s concerns because they are not objectively supported by all the relevant evidence.  In particular, Mr Bowler’s submission is that Mr P’s memorandum is not of itself of any great evidentiary weight, as it did not involve any direct observations of the child with either of her parents and, as such, cannot be regarded as a formal family report or assessment and he did not compare Ms Batten’s view of the progress of the time with that of Mr F. 

The functions of family consultants

1. Pursuant to section 11A of the Family Law Act the functions of family consultants include the following:

   ·assisting and advising people involved in proceedings under the Act;

   ·assisting and advising the court and giving evidence in relation to proceedings before it;

   ·helping people involved in such proceedings to resolve disputes that are the subject of proceedings;

   ·preparing formal reports for the court.

2. The court has the discretion, granted pursuant to section 11F of the Act, to direct a party or parties in a proceeding before it to attend an appointment with a family consultant. Before exercising this power, as a consequence of provisions contained in section 11E of the Act, the court has the power to seek advice from a family consultant as to what is an appropriate intervention to service the needs of the parties concerned.

3. In all these circumstances, in my view, there was a lack of clarity about what was expected of Mr P, in the conflicted circumstances of this case.  Given the controversy between the parties, it was improbable that he would be able to assist them to resolve the issues in dispute between them.  In addition, it is clear that he was not in a position to provide an expert report given the limited nature of his interaction with the parties and his lack of exposure to X herself.

4. Rather, Mr P seems to have seen his function as to provide advice to the court which he did in a much qualified manner.  This was understandable given that he was not in a positon to resolve the factual issues in dispute between the parties.

5. Certainly, Mr P does not seem to have proffered any direct advice to the parties themselves.  In these circumstances, it seems to me to be regrettable that Ms Batten and those advising her have taken Mr P’s memorandum to be some form of family report, which justified her immediate disregard of the order to which she had earlier agreed.

The nature of an interim hearing

1. This hearing takes place at the interim stage.  As a consequence, it takes a different form to that which occurs at the final hearing stage.  At the interim stage, the hearing necessarily takes place in a truncated form and more often than not at an early stage of proceedings before there has been time for a detailed and independent expert assessment of the family concerned to be made.

2. The final hearing stage allows a more detailed examination of the evidence, including cross examination of various witnesses concerned.  It is at this stage the court is better placed to make findings of fact about contested evidentiary issues.  Although the nature of the hearing is different, the same legal principles apply at both the interim and final stages. 

3. At the interim stage, evidence is frequently hastily prepared or gathered against a background of crisis in the family concerned.  Emotional responses are invariably heightened and there is little time for calm reflection by the individuals affected by the dispute in question.  As a consequence of these matters it is often very difficult, if not impossible, for the court to resolve areas of factual dispute arising between the parties concerned.

4. It is also the case that, at the interim stage, I am obliged to follow a specific pathway which was delineated by the Full Court of the Family Court in the case of Goode & Goode.[2]

   [2]  Goode & Goode  (2006) FLC 93-286

5. In Goode & Goode, the Full Court of the Family Court indicated that in a truncated interim hearing, such as this one, the court should endeavour to analyse the factual situation focusing on what is agreed whilst bearing in mind that it cannot make findings of fact about all manner of disputed things.

6. Rather, the Court should focus on what is agreed or what appears to have been the situation in respect of prior care arrangements for the children concerned. In this context, it should analyse what findings should be made in respect of the relevant section 60CC factors.

7. Particular difficulties are likely to arise, at the interim hearing stage, in cases involving the assessment of the degree of risk which may arise to a child if exposed to a parent alleged to be violent or antisocial in some way when those allegations are vehemently denied. 

8. The specific difficulty being that such allegations can neither be definitively established because of the nature of the hearing in which they arise nor effectively ignored because of their potential to impact upon the overall safety of the child concerned if they subsequently established to be substantially correct.

9. The Full Court in Deiter & Deiter[3] has directed that in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity for the individuals particularly children who will be potentially affected by it.  Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved. 

   [3] Deiter & Deiter [2011] FamCAFC 82 at [61]

10. Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved.  Risk arises in every aspect of human endeavour.  No individual’s life, including the life of a child, can be rendered entirely free of all risk.  In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis. 

11. The court is frequently called upon to assess all manner of potential risks to the child concerned in proceedings coming before it.  These risks include the risk of exposing a child to a parent who is incapacitated by the consumption of drugs or alcohol; compromised parenting as a result of psychological illness or personality disorder; and possible risks relating to the exposure of a child to an angry, violent or unpredictable parent.

12. In M & M,^[4] a case which is not factually congruent with the current matter because it dealt with allegations of sexual abuse, the High Court formulated a test which has since been referred to as the “unacceptable risk test” as means of balancing the benefits arising for a child of interacting with a parent with possible detriments arising from exposure to that parent.  Essentially the court should not grant time to a parent with a child, if the situation envisaged would expose the child concerned to an unacceptable risk suffering some form of harm or abuse.

    [4]  See M & M (1988) FLC 91-979 at 77,081

The legal principles applicable

1. 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].

2. 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.

3. 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.

4. 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.

5. In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.”  Future protective issues for a child are the court’s priority. 

6. 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.  Depending on the circumstances of the case concerned one or more of these factors may come to the fore.

7. 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.

8. 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.[5] 

   [5]  See B v B: Family Law Reform Act 1995 (1997) FLC 92-755

9. 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 …”[6] As such the various factors in section 60CC are inclusive but not exclusive of one another.[7] 

   [6]  See B v B: Family Law Reform Act 1995 (ibid) at 84,220

   [7]  See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J

10. 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.”

11. 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 or other sexually abusive behaviour;

    ·repeated derogatory taunts;

    ·intentionally causing death or injury to an animal.

12. 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 unreasonably coerces or controls that person.  Both parties have made allegations against the other which fall within the examples listed in sub-section (2).

13. 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”. 

14. 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.”

15. In assessing cases involving family violence, the court needs to be aware of the nature of family violence in general terms.  Family violence, by its nature, is something that frequently occurs behind closed doors in the private confines of a family home. 

16. Accordingly, it is very often difficult if not impossible for there to be independent verification that it has occurred.  However, “the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.”[8]

    [8] See Eaby & Speelman (supra) at 80,322 [21] per Ryan J

17. In general terms, subject to child protective concerns and the overall best interests of the children concerned, the objects of Part VII of the Act and the principles underlying them, place an emphasis on the co-involvement of parents, in the lives and development of their children.

18. As a consequence of this emphasis, the legislation contains 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].

19. The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.

20. 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)].

21. 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)].

22. 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)].

23. The pathway, which the court is mandated to follow in determining parenting matters, as delineated by the Full Court in Goode & Goode can be summarised as follows:

    ·consider the section 60CC matters relevant;

    ·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 an interim matter only, it is not considered “appropriate” for it to be applied;

    ·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.

Discussion

1. It is now necessary for me to consider the various factors arising under section 60CC, bearing in mind the truncated nature of the hearing before me and the various evidentiary issues which remain in controversy between the parties.

2. From Mr Setchell’s perspective, the most important consideration for the court lies in the likely benefits arising for X of having a meaningful level of relationship with her father.  It is his case that it will be a retrograde step, if there is a significant break in the time he spends with X and when time is resumed, it can only be once per fortnight for a maximum period of two hours.

3. In this context, Mr Setchell points to X’s tender years.  He asserts that this first period of her life is likely to be important for her getting to know him and being able to feel relaxed and comfortable in his care.  As such, the relationship between father and daughter will be rendered meaningful if he is able to continue to spend regular periods of time attending to her needs, particularly without any great level of supervision.

4. Ms Batten characterises Mr Setchell as a reactive and violent person, who necessarily poses a significant level of risk to X.  In addition, she would assert that Mr Setchell has close to no parenting skills and a diminished level of insight into what it is to be a responsible parent.  It is her position that protective needs for X need to be prioritised in the fashion envisaged by the applicable legislation.

5. Ms Batten makes many criticisms of Mr F’s professionalism and his report.  There is no cogent evidence to suggest that X has been exposed to family violence whilst in her father’s care or that her welfare was seriously compromised during the comparatively short period of time she spent with Mr Setchell, subject to Mr F’s supervision.

6. In these circumstances, in objective terms, the risk of X suffering some form of abuse, neglect or family violence, emanating from her father, whilst subject to the professional supervision of Mr F does not seem to me to amount to one that is unacceptably high. 

7. However, Ms Batten, rightly or wrongly, no longer has any confidence in Mr F and his retainer has been unilaterally terminated.  It is also undoubtedly the case that Ms Batten does not trust Mr Setchell’s parents as a consequence of what she alleges occurred at hospital following X’s birth.

8. This event, although I am not in a position to make any definitive finding about it, continues to loom large in the relationship between the paternal and maternal aspects of X’s family.  Again, although I am not in a position to determine whether Ms Batten’s mistrust of Mr and Mrs Setchell Senior has a basis in objective terms, I am not in a position to ignore it, particularly given the age of the child concerned and the lack of trust between the parties.

9. In B and B [9] the Full Court said as follows:

   “…It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection.  As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.”

   [9] B & B (1993) FLC 92-357 at 79,780

10. X is around nine months of age.  Obviously she is not yet vocal and able to communicate her needs easily.  Her transition to solid foods is not yet likely to be complete.  She is totally dependent on adults around her to supply her every need, including ensuring that she does not come to direct harm from unwitting engagement with objects within her physical environment.  As such, X will require constant supervision for some time to come. 

1. X will need to be fed by hand.  She may become easily tired and depending on her nature, possibly fractious.  When interacting with her father, she may not be able to comprehend why the individual who habitually cares for her (her mother) has disappeared from her life and whether she will return, given that she has no comprehension of time.

2. These are challenging circumstances, even for parents who trust each other and communicate well.  The parties in this case do not have these attributes.  Necessarily, in all these circumstances, the mother is likely to be highly protective of X.

3. From my perspective, these are the most important considerations – the tender years of the child concerned; and the fact that Ms Batten is her undisputed primary carer.  The factors alone dictate that a cautious approach needs to be adopted in the case.  In addition, due to the mistrust between the parties, there are unfortunately few options open to the court to move the matter forward, certainly at the pace of Mr Setchell’s preference.

4. X’s relationship with her father is, as yet, in its nascent stages.  Clearly it has the potential to be very important for X as she develops.  However, at this stage, the parties have no history of caring for her together.  They separated when she was a tiny baby.  For complex reasons, they now have absolutely no trust whatsoever in each other.  X, as of yet, is not likely to have a secure degree of attachment with her father based on a consistent history of interaction between the two.

5. This state of affairs makes every future transition of the child between the parties fraught with a high degree of difficulty.  Although it might appear trite to point it out, once trust has disappeared between parents, particularly the parents of young and vulnerable children, it is very difficult for that trust to be quickly restored.  In my view, there is a very real risk that X will pick up on this level of tension and this will have implications for her future emotional equilibrium.

6. Accordingly, although the nature of her relationship with her father is very important, that relationship is far from fully formed.  As previously indicated, the applicable legislation accords priority to protective concerns relating to children. 

7. Although the mother’s allegations regarding family violence cannot be substantiated at this stage of proceedings, I am not in a position to ignore those concerns, particularly in the context of the brief relationship between the parties and the vulnerable age of the child concerned.

8. In cases involving an extremely anxious parent or where the level of violence or abuse involved is significant, an order for supervised time may be the only viable option available to the court to ensure some form of relationship between the parent and any children concerned. 

9. In W & W,[10] the Full Court spoke of a tension between the protection offered to a child by supervised contact with the potential detriments occasioned by the artificiality and limitations offered by such supervision which can impact on the emotional wellbeing of the child concerned by a curtailment of his or her parental relationship.  Supervision has limitations.  It may not provide sufficient time for the fostering of an appropriate parental relationship.  It may prevent the parents concerned managing their own parenting relationship with one another.  It may at best be a temporary or stop-gap measure.

   [10] W & W [Abuse allegations: unacceptable risk] [2005] Fam CA 892

10. However, in cases where there is a high level of suspicion and apprehension in the residential parent’s household, supervision may be the only viable outcome because otherwise excessive anxiety on the primary caregiver’s part may adversely impact on that parent’s ability to care for the child concerned.  This exercise is part of the court’s task in assessing the magnitude of the risk involved and whether it is unacceptable.

11. In W and W[11] the Full Court said as follows:

    “We appreciate that the decisions in these cases have the potential for long term consequences for a child, and they require very careful consideration.  We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement.  The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.”

    [11] Ibid at paragraph 115

12. The fundamental task for the court is to assess the prospective dangers for any child, on the one hand, of spending time with a parent, who has allegedly been violent in the past and, on the other, of that child losing a potentially viable parental relationship.

13. In this particular matter, in my view, it is highly regrettable that the arrangement, envisaged in the orders of 22 August 2016, has broken down so comprehensively.  The time which the orders allowed Mr Setchell to spend with X was modest in its extent but regular.  Significantly, it allowed the father to begin to spend time with the child without a frustrating waiting period in a comfortable and familiar environment. 

14. As already indicated, in my view, in objective terms, the regime of supervision contemplated was sufficient to ensure that X was not likely to come to any serious harm.  In my assessment, it was an appropriate and proportionate response to the degree of risk arising in the matter, as manifested by the child’s tender years; the lack of relationship between her and her father; the mother’s likely anxiety; and the parties’ poor relationship with one another.

15. In this context, the intervention of Mr P has not had its hoped for consequences.  It did not assist the parties to resolve the issues in dispute between them.  In addition, in my view, it cannot be regarded as being in the nature of a report for the court.  Mr P begins both of the substantive paragraphs of his memorandum with the conditional preposition “if”. 

16. Significantly, Mr P was not provided with any of the material available from Mr F, which may have caused him to revisit both of the conditional propositions contained in his memorandum.  As Keynes is famously reported to have said: “when my information changes, I alter my conclusions.”

17. However, Mr P did not have that information.  In addition, as I have previously indicated, he did make any specific recommendations to the court in his memorandum dated 11 October 2016.  Regrettably, Ms Batten and those advising her assumed that he did.

18. In all the circumstances of this case, I have come to the conclusion that it is likely to be in X’s best interests for her time with her father to continue to be subject to some form of supervision.  In my view, it would warrant an unacceptable risk to allow the time to become immediately unsupervised just because of the failure of Mr F’s supervision.  I quantify this risk on the basis of the likely agitation Ms Batten will experience if the time became unsupervised – as she would see it prematurely – and also because of X’s age and vulnerability.

19. Having reached this conclusion, the more difficult aspect of the case is by whom should the time be supervised?  For reasons provided above, the father’s parents are not likely to be suitable given Ms Batten’s mistrust of them.  I have also reached the conclusion that it is not feasible to re-engage Mr F given Ms Batten’s unilateral rejection of him.

20. Regrettably, this leaves only one other option – professionally supervised time at the (omitted) Contact Centre notwithstanding the obvious disadvantages of delay which this will entail and the limitation in the time available.  This process will also allow some independent and objective assessment of the quality of the time the father spends with X.

21. At the first directions hearing it was inevitable that any time between father and child be subject to some form of supervision, most likely professional supervision.  As such, the concept of involving Mr F expeditiously was a good one.  Unfortunately it has not worked out as anticipated.   

22. I can appreciate why Mr Setchell would feel extremely frustrated at what has happened.  However, the court, in my view, cannot now unduly expedite the process of supervision merely because of the failure of the first attempt at such supervision.  Rather, notwithstanding Mr Setchell’s disappointment, there is no realistic option other than for the court to return to what it was likely to have done in the first place, in the absence of an agreed trusted lay supervisor, namely professional supervision at a CCC.

23. At this interim stage, it is not appropriate that the presumption of equal shared parental responsibility be applied in respect of X.  The relationship between the parties is too volatile and unstable for them to be able to make any consensual decision regarding X’s care.  Rather, at this stage, it is a case of the court doing the best it can, in extremely difficult circumstances, to ensure that X remains both safe and has at least the prospect of developing some form of relationship with her father in the future.

24. As previously indicated, the decision to terminate Mr F’s retainer precipitated a flurry of litigation, including a contravention application which will centre on whether it was objectively reasonable for Ms Batten to do what she did.  What the pursuit of this application will achieve in material terms, so far as advancing Mr Setchell’s relationship with X, is unclear to me.  However, in the conflicted circumstances prevailing, I have no alternative other than to fix the matter for hearing.

25. 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 one hundred and twenty six (126) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:         17 November 2016