SETCHELL & BATTEN (No.2)

[2018] FCCA 2402

FEDERAL CIRCUIT COURT OF AUSTRALIA

SETCHELL & BATTEN (No.2) [2018] FCCA 2402

Catchwords:
FAMILY LAW – Interim arrangements for child aged approaching three years of age – progression to unsupervised time with the child – allegations of family violence – assessment of risk – meaningful level of relationship – nature of interim hearing – high conflict – allegations of family violence – best interests.

Legislation:

Family Law Act 1975, s.60CC

Cases cited:

Setchell & Batten [2016] FCCA 2980

Applicant: MR SETCHELL

Respondent: MS BATTEN

File Number: ADC 2489 of 2016

Judgment of: Judge Brown

Hearing date: 23 August 2018

Date of Last Submission: 23 August 2018

Delivered at: Adelaide

Delivered on: 31 August 2018

REPRESENTATION

Counsel for the Applicant: Ms Dickson

Solicitors for the Applicant: Barbaro Thilthorpe Lawyers

Counsel for the Respondent: Mr Hemsley

Solicitors for the Respondent: Diane Myers Family Lawyers

ORDERS

Until further or other order

1. The child [X] BORN 2016 live with the mother.

2. The child spend time with the father at the Suburb 1 Children’s Contact Centre in the Kids Connect Playgroup for a period of up to two hours (2) each fortnight to commence on Saturday 8 September 2018, if this date can be accommodated by the director, or such other dates as is nominated by her and each alternate fortnight thereafter for a period of three (3) visits.

3. Upon the conclusion of the three (3) visits in the Kids Connect Playgroup, the child spend time with the father from 10:00am to 2:00pm each alternate Saturday with supervised handovers to take place at the Suburb 1 Children’s Contact Centre.

4. Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 28 November 2018 at 9:30am, to discuss the care, welfare and development of the child in an endeavour to resolve any differences between the parties in relation thereto.  The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.

5. Further consideration of this matter be adjourned to 4 December 2018 at 9:30am.

IT IS NOTED that publication of this judgment under the pseudonym Setchell & Batten (No.2) 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. On 17 November 2016, some twenty months ago, I delivered judgment[1] in respect of time spending arrangements, for a young child [X], who was born on 2016.  At the time, [X] was just eight months old.  The parties to the case were [X]’s parents – her father, Mr Setchell; and her mother, Ms Batten.

   [1]  see Setchell & Batten [2016] FCCA 2980

2. Accordingly, at this stage, I was dealing with a very young child.  In addition, it was also the case that [X]’s parents had had a very brief and unsatisfactory relationship with one another.  As a consequence, they had no experience of co-parenting [X] and did not trust one another.  Necessarily, there was no possibility of them being able to communicate directly, with one another, about issues to do with [X].

3. The combination of these factors had resulted in a situation where [X] did not then have any viable form of relationship with her father.  In addition, it was difficult to see what would be the best means for [X] to form a bond with her father, given it was her mother’s position that the father was a violent person, who had significantly assaulted her during the course of their relationship.  As such, she believed that the father represented a significant threat to [X]’s safety.

4. As is invariably the case, in difficult interim proceedings of this kind, the parties each took a different focus to applicable considerations arising under the Family Law Act. The father’s position was that [X]’s interests would be best served by her spending as much time as possible, with him, in as natural and relaxed a domestic setting as possible, preferably the home of one of his relatives.

5. The mother’s emphasis was on ensuring that [X] was as safe as possible and that the court should put protective concerns at the forefront of its deliberations, particularly in terms of [X] being exposed to family violence.  She wished any time between [X] and her father to be subject to thoroughly documented professional supervision.

6. At that stage I encapsulated the issue to be determined, by the court, in the following terms:

   “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.”[2]

   [2] Ibid at [2]

7. Ultimately, in November of 2016, I ordered that there be a process of supervised time between [X] and her father at the Suburb 1 Children’s Contact Centre “the CCC”.  The order made envisaged six sessions of time, each of two hours in duration, after the completion of which a report would be prepared by the supervisors concerned. 

8. This time began on 25 February 2017 and finished on 1 July 2017.  At the time of its completion, [X] was around fifteen months of age.  Mr Setchell described this time with [X] as being “magical” and believes [X] was comfortable in his care.[3]  However, for reasons upon which I will expand in due course, this intervention did not lead to any significant advance in the development of the relationship between father and child.

   [3] See father’s affidavit filed 25 July 2017 at [8]

9. Between 10 March 2018 and 16 June 2018, the father completed a further six sessions with [X] at the CCC and another report was prepared.  From his perspective, the time went well again, if not better than in the first tranche of time.  He now wishes to move to some unsupervised time with [X].  In this regard, he proposes 10:00am until 2:00pm each Saturday. 

10. Ms Batten is opposed to this course and believes that it is premature, given what she characterises as the still rudimentary nature of any parenting relationship between [X] and her father.  In addition, she continues to have concerns that the father is a violent person with little, if any, insight into what is required to be a competent parent of a very young and so vulnerable child such as [X]. 

11. In these circumstances, the mother’s primary position is that there should be a further course of six fully supervised visits at the CCC, directed towards the extension of the relationship between father and child, which occurs in the completely safe circumstances of the CCC, in which Ms Batten has some confidence.

12. In the alternative, and certainly not as a preference, she proposes that Mr Setchell spend time with [X], at an interactive play group, Kids Connect, which is offered by the CCC.  This provides a less rigorous form of supervision as it encompasses a group of children, who are able to interact and play, with their respective parents and each other, in an environment which is described as safe, fun and positive.[4] 

    [4]  See Relationships Australia (South Australia) website

13. The group is available to children aged zero to five years and is an “activity based group that promotes having fun and positive play.”  CCC workers are available to assist parents with activities.  Accordingly, there is supervision but it is less intense than provided in the initial phase of professional CCC supervision, which Mr Setchell and [X] completed in June of 2018.  In addition, other children and adults are involved. 

14. At the hearing before me, scheduled on 23 August 2018, neither party had ascertained their suitability for the Kids Connect program or indeed made any personal inquiries about its suitability for them and [X].  Mr Hemsley, counsel for the mother, proposed it on his client’s behalf, as a consequence of his own professional experience of it. 

15. Ms Dickson, counsel for the father discussed the program with her client.  From his perspective, the time is now right for [X]’s relationship with him to be normalised in a gradual and conservative manner, away from any professional supervision.  He does not believe that any further process of supervision, even in a light handed way is warranted. 

16. In addition, he is concerned that this proposal represents a further attempt by the mother to delay the advancement of his relationship with [X] and the time available at the CCC, through the proposed program, is inadequate. 

17. On the other hand, Mr Hemsley, counsel for the mother, indicates that the delicate and controversial situation currently prevailing between the parties, when coupled with [X]’s tender years dictate an extremely cautious approached should be taken.

18. These reasons for judgment are directed towards resolving this complex, controversial and emotion laden issue.  They should be read in conjunction with the earlier reasons for judgment, which set out some of the history of the case and the relevant legal considerations applicable to its resolution, which I will not repeat in this more recent decision, but which remain germane. 

19. At this stage, I must reiterate what I said in the earlier decision.  Once again, the proceedings arise at an interim stage.  As such, the case took part in a truncated form, which did not provide any opportunity for cross-examination and so resolution of the significant factual issues arising in the case, which largely centre on the nature of the parties’ relationship with one another, particularly whether it was characterised by coercive and controlling family violence. 

20. In a legal sense, in my view, the essential task, for the court, is one of assessing the nature of the risk, arising for [X], of being exposed to her father in an unsupervised setting, for the periods proposed by him.  Necessarily the assessment of risk cannot be an exact science but must depend on the court’s assessment of all relevant circumstances. 

21. The court cannot defer its responsibility to assess risk merely because of deficits in the evidence available to it, particularly at the interim hearing stage.  The best way to formulate the test to be applied is that the court should not put any child concerned in the place of a risk it assesses as being unacceptable for it to take.

22. After having assessed the degree of risk arising in the particular case concerned, the court must put in place responses, which are proportionate to the nature of the risk, so identified.  Necessarily, this cannot be done with any degree of complete precision, at this provisional stage, particularly in the absence of any extensive and expert psychological assessment of [X] and the nature of her relationships with each of her parents. 

23. In addition, the issue of risk cuts two ways.  There are also risks arising from depriving [X] of having a meaningful level of relationship with her father on uncertain grounds.  [X] is not yet three years of age.  The years of early childhood are very often central for any child to establishing intimate and comfortable parental bonds.  Up until this stage, there have been significant barriers in the way of [X] establishing such bonds with her father.  From Mr Setchell’s perspective, it is incumbent upon the court to be proactive in this regard. 

24. Finally, it is axiomatically the case that Ms Batten has been [X]’s primary carer up until this stage.  I observed her demeanour during the recent court proceedings.  She was very upset.  Although her counsel, Mr Hemsley, both forcefully and appropriately put her case, she wished to make her own representations to me.  I demurred in this regard. 

25. However, without doubt, these proceedings are emotionally laden for all concerned.  In these circumstances, I am also not in a position to easily overlook the potential psychological consequences for Ms Batten, if an order is made, which she will find extremely difficult to support in an emotional sense.  I must primarily consider this issue from [X]’s perspective.  It will not be helpful to her if her primary carer and main source of emotional support feels overwhelmed, as this may possibly effect the quality of care provided to her. 

26. However, I also note that I have not, as yet, been provided with any expert evidence relating to her personal level of psychological functioning, particularly whether she personally operates under lower thresholds of anxiety than others and so is liable to a greater risk of emotional deregulation, if an order is made in respect of [X], with which she does not agree.  Again, whether she is a person prone to hyper-anxiety, is a matter of conjecture at this stage.

What has happened since the first interim determination

1. As is clear from the first reasons of judgment, at an early stage, the parties did agree on arrangements for [X] to spend time with her father, when she was approximately six months of age.  It was agreed that the father would spend 2.5 hours with [X], each Sunday, subject to the supervision of Mr F who, at the time, was a newly qualified psychologist under training. 

2. It was also agreed, at this early stage, that Mr Setchell would attend “counselling for anger management with Mr A, Mr T or the like”.  He was also directed to “engage in an appropriate parenting course”.  The mother is critical of Mr Setchell for either taking a tokenistic approach in respect of these orders or not complying with them at all.  This has heightened her concerns regarding the risk of [X] spending unsupervised time with the father, at this stage.

3. As I have described previously, the Mr F initiative was a failure.  It was against the background of this failure that the order for supervised time at the CCC was ordered.  Concurrently with a flurry of parenting applications, Mr Setchell commenced contravention proceedings against Ms Batten arising as a consequence of his allegation that she had breached the court orders regarding Mr F’s supervision of his time, with [X], without reasonable excuse. 

4. No doubt, this intervention also heightened the already extreme levels of tension between the maternal and paternal aspects of [X]’s family.  On 22 May 2017 Mr Setchell discontinued the contravention applications.

5. As indicated above, the series of supervised visits, envisaged by my order of 17 December 2016, took place in the first half of 2017.  Some visits had to be cancelled as a consequence of [X] being seriously unwell, resulting in her hospitalisation.  As a consequence of her illness, the first tranche of supervised visits was significantly interrupted.

6. The description of the first visit, on 25 February 2017, indicates that [X] was somewhat discomforted at spending time with two relative strangers, in the form of the supervisor and her father.  However, at the end of the visit, the worker described the father as displaying some good insight into managing the needs and requirements of a child of [X]’s age”.  In this context, there is no evidence that any aspect of Mr Setchell’s interaction with [X] was over reactive or likely to result in the child feeling overwhelmed.

7. In the second visit of 11 March 2017, [X] was observed to interact with her father on the floor and to become more relaxed as the visit progressed.  The supervisor also reported that Mr Setchell helped [X] to walk around the room.  Given her age, at the time, it is apparent that she was on the cusp of attaining this important developmental milestone. 

8. The next visit occurred after a significant hiatus.  [X] was still somewhat unwell and was shy when re-introduced to her father.  Gradually, [X] was noted to allow herself to engage in activities with both the worker and Mr Setchell.

9. [X] was clearly unwell during the visit.  Mr Setchell was described as wiping her nose whilst he spoke with a gentle tone.  Later, he sat with the obviously unwell [X] in his arms.  Thereafter, the report indicates as follows:

   “[X] began to whimper and the worker looked at her sympathetically.  [X] held out her arms to the worker who received the child from Mr Setchell.  Both Mr Setchell and the worker gently caressed [X]’s body and spoke soothingly to her.  Around five minutes later the worker who suspected that the child may be running a temperature suggested she should be returned to the mother.  Mr Setchell who reflected concern for [X] accepted the suggestion without hesitation.  [X] permitted the father to take her in his arms for a cuddle.  While she tolerated the embrace, he told her that he loved her and hoped she got better really soon”[5]

   [5]  See father’s affidavit CCC report being annexure S1 to the father’s affidavit filed 25 July 2017.

10. Thereafter, the next two visits were also cancelled due to [X]’s illness and rehospitalisation.  The fourth visit, after the interlude, began somewhat awkwardly.  Later, during the visit, Mr Setchell read [X] a story, whilst she snuggled in close to him.  Later, she played on his lap and smiled with pleasure when she heard her father say her name. 

11. The fifth visit occurred, as scheduled, on 17 June 2017.  Father and child are reported to have played cooperatively and reflected their mutual enjoyment in happy facial expressions.  Mr Setchell described the visit to the workers concerned as the best so far. 

12. The final visit of the first tranche of CCC time concluded on 1 July 2017.  The supervising worker reported that father and child played in a mutually satisfying fashion for around 45 minutes. Mr Setchell was observed to check [X]’s nappy and offer her food and drink successfully.  At the end of the visit, Mr Setchell gave [X] a hug, which she tolerated but did not reciprocate.  The worker noted that [X] had been providing her father with more eye contact than previously.[6]

    [6]  The first Contact Centre report is found at annexure S1 to the father’s affidavit filed 25 July 2017

13. In July of 2017, Mr Setchell further deposed that he had attended a Circle of Security Parenting course on 30 November 2016.  Against this background, he sought to move to unsupervised time with [X].  In response, Ms Batten deposed as follows:

    “I am glad that the father was able to make a positive start to building a bond with [X] as this is in her best interests.  However, the father’s time with [X] was not consistent for reasons beyond anyone’s control and accordingly, I am of the view that it may take further time for a secure attachment to be formed between the father and [X].”[7]

    [7]  See mother’s affidavit filed 26 July 2017 at [7]

14. It was further Ms Batten’s view, after having read the first CCC report that Mr Setchell had displayed hesitancy in dealing with [X] and was reliant on cues provided to him by the supervising worker as to what to do with [X].  It was also her assertion that the child returned from contact visits emotionally distressed.  On this basis, she proposed that there be a further tranche of supervised contact visits. 

15. The parties were able to resolve this controversy on the basis of an order made by consent, on 18 August 2017, which envisaged [X] spending two hours per fortnight in her father’s care, subject to the supervision of an experienced family consultant in the person of Ms K or Ms B. 

16. However, the time envisaged did not eventuate due to an application brought by Mr Setchell, on 29 September 2017, which threw the prospect of any further consensual developments in respect of [X]’s care, off limits.  On this date, Mr Setchell sought an order that the parties and [X] undergo a parentage testing procedure. 

17. For obvious reasons, the alleged evidentiary circumstances surrounding this application are delicate in the extreme and, as such, not likely to be conducive to the development of any conciliatory feelings between the parties concerned.  I will not repeat them in the context of these reasons.  However, the issue having been raised, all concerned recognised the necessity for it to be resolved, as soon as possible, particularly whilst [X] was young. 

1. On 22 January 2018, a parentage testing procedure report indicated that Mr Setchell was [X]’s father beyond any shadow of either legal or scientific doubt.  However, in the interim, whilst this report was being obtained, arrangements for Mr Setchell to spend time, including subject to the supervision of either Ms K or Ms B, as had previously been agreed, were held in abeyance. 

2. However, as matters transpired, it was Mr Setchell’s position that he could not afford to retain the professional supervisors previously agreed upon.  It was against this background that the arrangements were put in place, through the mechanism of a further court order, for there to be another tranche of supervised time at the CCC, which as indicated above re-commenced on 10 March 2018. 

3. Initially it had been envisaged that the proceedings would reconvene on 18 June 2018.  However, this date was subsequently administratively adjourned because the relevant CCC report was not to hand.  Accordingly, in this delicate matter, regarding the development of a paternal bond for a young child, there was yet further delay.  Regrettably, this delay has not assisting in any reduction in the acrimony between the parties, which remains extreme.

4. In this context, Ms Batten is critical of the father and those advising him for not being more proactive in respect of spending time with [X], after the visits stopped on 1 July.  It being her position, not supported by evidence in affidavit form, that he rebuffed her proposal for further supervised time, at the CCC, because he was going to (country omitted).  The import of her criticism that he placed issues to do with his personal life above his apparent desire to have a relationship with [X].

Other evidentiary issues

1. As indicated above, during much of 2017, [X] was significantly unwell.  She was diagnosed with Mycoplasma Pneumonia and Kawasaki Disease, which led to fibril convulsions.  It was clearly the case that she was a very unwell girl. 

2. This bout of extended illness disrupted the first tranche of supervised time, with the process then being further delayed by the paternity controversy.  In these circumstances, Ms Batten contends that the reintroduction of Mr Setchell into [X]’s life has been extremely confusing for her. 

3. Although, I am not in a position to definitively determine this issue, I would be naïve to think anything other than this process, extremely challenging and confronting for her parents, has also been difficult for [X], particularly given her obvious lack of cognitive insight into the conflicted circumstances surrounding her family.  Also [X] is not likely to have a fully developed memory and her conception of time is likely to be limited.  As such, she may not have a clear picture, in her mind, of who her dad is.

4. In this context, Ms Batten is highly critical of Mr Setchell for choosing to withdraw from [X]’s life, whilst the paternity issue was being resolved.  She did not choose to formally respond to the sensitive allegations made against her by Mr Setchell.  However, once again, I consider that I would be naïve to believe that they did not have some emotional impact upon her, particularly in the context of her position that she was the victim of a significant level of family violence, during the parties’ brief relationship.

5. In this context, it is common ground between the parties that, following their separation, Mr Setchell was charged with assaulting the mother.  As was his entitlement, he elected to contest the proceedings, which the prosecution ultimately withdrew.  The parties now have very different views to as why this is so.  It is the father’s position that this was because the charges in question had no merit.  On the other hand, the mother has deposed as follows:

   “I did not consent to the charges being withdrawn.  The trial was initially postponed due to [X] being hospitalised.  The charges were later withdrawn by police prosecution.  When I enquired as to why the matter was not proceeding to trial the prosecutor expressed concern about the impact on me and said that there were several adverse outcomes for domestic violence victims going to trial.  According to her risk assessment of the situation she advised that the impact of having to give evidence would cause significant adverse trauma for me that would potentially outweigh the penalty he could receive.  She reiterated that they were pursuing a custodial sentence, but said it was highly likely the father would receive a suspended sentence and fine if found guilty and the trauma caused from me having to give evidence might be more significant than the benefit of pursuing the matter”. [8]

   [8]  See mother’s affidavit filed 26 July 2017 at [4]

6. Mr Setchell further refutes the mother’s suggestion that his parenting course was a rudimentary one.  It is his evidence that he attended six to eight sessions.  In addition, he refutes the assertion that he did not complete anger management counselling. 

7. In this context, he has provided a letter, from Mr C, dated 9 August 2017, indicating that he attended five sessions between 16 September 2016 and 9 August 2017, with Mr C.  Mr C has written a letter to this effect, which concludes with the following paragraph:

   “You are also booked in for a further appointment on Wednesday September 20 at 2:30pm.  These counselling sessions have explored your relationship with your ex-partner Ms Batten and your relationship with your daughter [X].”[9]

   Mr C further writes that he is prevented from providing further details of the counselling due to confidentiality issues. 

   [9]  See annexure S1 to Mr Setchell’s affidavit filed 10 August 2017

8. Other irritations, in the parties’ parenting relationship, arise in respect of the payment of child support.  It is the mother’s position that child support for [X] was significantly in arrears.  On the other hand, the father asserts that he is abiding by the applicable assessment. 

The second CCC report

1. [X] was upset, at the outset of the first visit, on 10 March 2018, when she discovered her mother had left her.  However, when her father entered, she is reported as being captivated by Mr Setchell’s talking to her about the toys.  Thereafter, the two began to play together, with [X] said to have warmed to her father quite quickly.  Although, in the worker’s opinion, the effluxion of time had resulted in [X] not knowing her father, her view was that the child related to him well. 

2. In the second visit, Mr Setchell was able to change [X]’s nappy and was reported to be pleased to be conversing with her father.  At the end of the third visit, the following observations were made:

   “The worker noted and appraised Mr Setchell of the ease with which he relates to [X], making it comfortable for her to be happy in his company.  Mr Setchell appeared to display patience and empathy for the situation [X] is in, and his nonchalance tended to assist [X] to relax in his company, and display aspects of her personality.  The worker indicated to Mr Setchell that his demeanour tends to avoid stress for the child, who appears to blossom in the atmosphere created.” [10]

   [10]  See father’s affidavit CCC report being annexure S1 to the father’s affidavit filed 20 August 2018

3. The third supervised visit was also positive from the father’s perspective, as was the fourth.  At the end of the latter visit, the supervisor was positive about the level of patience and empathy demonstrated by Mr Setchell to [X].  However, it was also noted that [X] was likely to be still coming to terms with Mr Setchell’s large build and maleness. 

4. During the fifth visit, [X]’s demeanour was described as being cooperative and involved, whilst she played with her father, to whom she gave good eye contact.  In addition, it was reported that as time went by, and [X]’s ability to relax and enjoy took hold, her vocalising improved and she talked in excited tones to her father.

5. Similar themes marked the sixth visit, which concluded with the following incident:

   “[X] smiled at him and went into his arms freely.  Mr Setchell gave her a big kiss goodbye and [X] leaned into his hug before turning towards the door.  She turned back to wave goodbye and then proceeded to accompany the worker out of the room.”

6. I have tried to read both CCC reports carefully.  I am well aware that it is potentially imprudent for me to use them as some form of Rosetta Stone to interpret the nature of the relationship between [X] and her father.  They are not an expert family report per se.  The observations, however, are useful, coming as they do from an independent source.

7. The reports are therefore an important source of evidence, based on objective observations from a person who has no vested interest in the outcome of the process.  The observations indicated, in my view, a growing sense of relationship between father and child and a lessening of diffidence between them.

8. However, given [X] has only spent twelve supervised occasions, with her father, between 25 February 2017 and 16 June 2018, which were interrupted by a hiatus of around nine months, I accept that the relationship between the two cannot be regarded as fully formed.  Necessarily, it is somewhat stilted and artificial. 

9. What is significant about the reports is the fact that Mr Setchell handled what was obviously a difficult and sensitive situation well.  At no stage, did [X] exhibit any sign of such emotional deregulation or distress that any visit had to be terminated. 

10. In addition, and in my view of equal significance, notwithstanding the interruption, [X] and Mr Setchell were able to resume the process of establishing a relationship together without too much difficulty.  In this context, there was a significant flow of improvement in the relationship, which culminated in the child being able to hug her father at the last visit. 

11. It is the powerful submission of Mr Hemsley, counsel for the mother, that it is significant that it was only at this stage [X] was relaxed enough to embrace her father.  As a consequence, she submits that it is too soon to move away from supervised time and the overall tenor of the reports in question was that Mr Setchell consistently deferred to the workers concerned, in his approach to [X], rather than taking his own initiative. 

Consideration

1. As with all matters to do with children, the determinative issue is which of the outcomes proposed by the parties will best serve [X]’s interests, both immediately and possibly in the longer term.  The same matters are to be considered at both the interim and final hearing stage, although the nature of the hearing concerned is different.  I am well aware that I am precluded, as yet, from making findings of fact in respect of controversial matters and have limited input, from a social science perspective, as to [X]’s developmental needs.

2. Essentially, in order to complete the task required of me, what I must do is consider each of the relevant considerations, delineated in section 60CC of the Family Law Act, to the evidence currently available to me.  This task, given the respective positions of the parties, also entail me making some sort of assessment of the level of risk, arising for [X], out of each of the possible scenarios available for her to spend time with her father, going into the future.

3. I concede that the father’s position cannot be characterised as entirely risk free.  I accept that hitherto he has had only limited and significantly disjointed time with [X] and this time has been subject to supervision.  It is necessary for me to assess, as best I can, what risks arise from withdrawing from this situation, to the modest periods of time, proposed by the father, away from the CCC and whether any such risk is so extreme as to be acceptable.

4. In my assessment, the two reports from the CCC demonstrate Mr Setchell has been able to form a relationship with [X].  In this sense, she knows her father and is reasonably comfortable in his presence.  In particular the two have engaged in play together; Mr Setchell has changed her nappy; and provided her with food and drink.

5. Accordingly, in my assessment, Mr Setchell has demonstrated some level of understanding of what are the practical requirements of being a competent parent.  He can attend to [X]’s short term practical requirements for food, drink and toileting.  In my view, these requirements are not likely to be beyond his capacity for the periods of time envisaged by him, at this stage, which is 240 minutes in duration.

6. In my assessment, Mr Setchell cannot be described as a complete neophyte in terms of providing such needs to an infant of [X]’s age, over such a relatively short period of time, which will not encompass a more challenging interaction involving overnight stays.

7. The more difficult aspect of the case is how to predict the manner in which Mr Setchell will react and respond to any extreme level of emotional de-regulation, possibly to be exhibited by [X], in a situation away from sources of professional assistance.  In my view, there is no cogent evidence to suggest that Mr Setchell will expose [X] to any unacceptable risk of being abused or neglected.  The risk is one of a possible over-reaction to some challenging behaviour demonstrated by [X] if, for whatever reason, she becomes upset, angry or otherwise emotionally distraught.

8. The evidence, from the CCC, indicates Mr Setchell loves [X] and is deeply interested in every aspect of her life.  Hitherto, it would seem to be the case that he has interacted with her in a gentle and solicitous manner and the child has not become flooded or overwhelmed with emotion.  The CCC time has gone well, perhaps better than could have been expected.

9. On the last visit, at the CCC, now regrettably about ten weeks ago, [X] came quietly into the playroom and went straight to her father, positioning herself on his lap.  Thereafter they played together, with [X] being described as quite relaxed.  She smiled at her father and babbled and chattered as she played.  Mr Setchell lifted [X] up, whilst playing basketball. 

10. Accordingly, there is some evidence to indicate some level of familiarity between the two and no evidence of any overt apprehension or emotional dysregulation occurring, on [X]’s part, as a consequence of interacting with her father.  She seems to have presented as a placid and manageable child in the context of the CCC interaction with her father.

11. I have no independent and expert psychological assessment of [X].  As such, I have no insight into what is her idiosyncratic emotional make-up.  Is she a quiet and cruisy child, who copes well or is she more demanding and easily stressed?  What I do know, of course, is that she is 2½ years of age.  She is beginning to talk. 

12. As such, she is at a major developmental stage in which she is likely to be beginning to assert her desire to be independent of her carers.  In this context, can I take judicial notice of what parents call the terrible twos, when toddlers sometimes become more difficult in their management and may display some level of defiance, which may be demonstrated by tantrums and displays of temper?  Such outbursts, for obvious reasons, can be alarming and extremely challenging and it is not, of course, unknown for an adult to react to them acutely.

13. I also know that the parties in this case have no shared experience of parenting [X] together and each mistrusts the other intensely.  This is not likely to be a conducive environment in which to construct an effective arrangement for [X] to spend time with her father.  In particular, Ms Batten characterises Mr Setchell as a volatile and violent person, who when angry or stressed, lashes out.   

14. No doubt, in all these circumstances, she fears [X] may be subject to some form of violent outburst, emanating from her father, in the absence of some trained person if, for any reason, Mr Setchell becomes stressed by the child’s behaviour, including if she has a tantrum or becomes unduly distressed.

15. Ms Batten has never seen Mr Setchell interact with [X] for any length of time and so has no subjective basis on which to gauge the nature of the relationship between the two.  For obvious reasons, she is not likely to have complete confidence in what the CCC workers have reported.

16. Accordingly, I accept that Ms Batten is likely to be highly apprehensive at the prospect of [X] engaging with her father away from any level of oversight.  However, I have not been provided with any expert evidence to indicate that she is a person subject to preternaturally high levels of anxiety, which will have an extremely adverse impact on her parenting capacity.

17. All these risks are present and, as such, cannot be definitively rules out as possibilities.  It is not feasible that any situation, in which Mr Setchell interacts with [X], can be rendered risk free.  The situation surrounding the child is too conflicted and stilted for that to be possible.  Rather it is a question of the court assessing the nature of the risk arising and, after that assessment, putting in place responses which are proportionate to that risk.

18. The positive features can be summarised as follows:

    ·the time envisaged is brief;

    ·Mr Setchell has displayed some parenting capacity in respect of [X] at the CCC;

    ·[X] appears to know him and has interacted with him with apparent ease at the CCC;

    ·Mr Setchell loves [X] and is interested in her welfare, as such he is not likely to want to do her harm;

    ·nothing went wrong at the CCC, in particular [X] did not have any form of emotional melt down.

19. The negative features can be summarised as follows:

    ·[X] is very young and therefore highly vulnerable;

    ·she is at a crucial developmental stage;

    ·the mother distrust the father in the context of serious allegations of family violence;

    ·Ms Batten is [X]’s primary carer and, as such, her feelings and anxieties warrant careful consideration by the court;

    ·it must be unpredictable, to some degree, how [X] will react to being taken to some place with which she is not familiar, particularly beforehand if she picks up on some levels of anxiety from her mother;

    ·the CCC time may have proceeded without obvious incident but there have only been 12 visits which were significantly disrupted;

    ·it is ten weeks since the last CCC visit;

    ·it cannot be said that [X]’s relationship with her father is well established on this basis;

    ·in this context, there is no evidence to indicate how Mr Setchell will respond, in the absence of someone to help him, if something unexpected arises with [X];

    ·as such, it may be imprudent to act on the assumption of so far so good before considering a big jump in the case.

20. I have to do the best I can to balance these factors, against one another to reach the outcome, which I consider will best serve [X]’s interests, in this very difficult case.  There is no obvious clearly preferable outcome, in my view.  Whatever occurs, it will have some deficits for [X].

21. I accept that, as time unfolds, she is likely to benefit from having a meaningful level of relationship with her father.  This is a very important consideration, not only now but potentially for the rest of her life.  I also appreciate that the years of early childhood are central for a child forming close bonds with parents and other family members.  In this very difficult case, much time has already been lost, for [X], in forming those bonds with her father.

22. It is not the function of CCCs to provide an indefinite mechanism in which a parent can interact with a child.  Although CCCs are invariably very well run and provide a comfortable and appropriate setting, with toys and activities readily available, for such interaction to occur, they remain institutional in nature and as such can only offer a limited amount of time.  As such, they are not well placed to enable parental relationships to reach their full potential, which is a process requiring both quantity and quality of time to become truly meaningful. 

1. Ultimately for a parent/child relationship to grow and develop exponentially it is necessary for the two concerned to engage in a wider range of activities, which are only available in a private domestic setting, over time.  Parent and child need to hang out together in as unstilted environment as possible and do the ordinary things parents and children do together such as preparing a meal and getting ready for bedtime and so on and so forth.

2. One of the rationales for the Government’s funding of CCC’s is to provide a mechanism for separated parents to move to a process of self-regulation of their parenting arrangements.  The objectives of these services are outlined in Children’s Contact Services: Guiding Principle Framework for Good Practice, published by the Australian Government Attorney-Generals’ Department,  as follows:

   “CCSs occupy a unique and important position within Australia’s family law system with their core business focusing on the needs of separating or separated families.

   CCSs enable children of separated parents to have safe contact with the parent they do not live with, in circumstances where parents are unable to manage their own contact arrangements.  Where separated parents are not able to meet without conflict, CCSs provide a safe, neutral venue for the transfer of children between separated parents.  Where there is a perceived or actual risk to the child, they provide supervised contact between a child and their parent or other family member.  Parents may be ordered to attend a CCS by the family court to facilitate changeover or have supervised visits with their children.

   The key goal of CCSs is to assist separated families to move, where possible and it is considered safe to do so, to self-management of contact arrangements, both in terms of changeover and unsupervised contact.  CCSs ensure that the children’s best interests are kept central to the contact process.  Services should only accept cases after careful assessment and where they consider that their facilities and resources allow them to deliver services that are safe and appropriate for all parties.

   The overall objective for CCSs is to provide children with the opportunity of re-establishing or maintaining a meaningful relationship with both parents, and other significant persons in their lives, when considered safe to do so.”

3. The question is it now safe to move away from the CCC, so far as [X] and the parties are concerned.  In my view, it is clearly the case that the parties themselves cannot directly manage any exchange of [X] between them.  In addition, if the parties are prevented from coming into direct contact with one another, this will prevent [X] being exposed to family violence in the future.

4. It would also, in my view, be highly regrettable if the parties were compelled to utilise a police station to exchange the child between them.  Some other public space cannot as yet be justified.  These circumstances mandate the use of the CCC for supervised handover for at least the short to mid-term and so tie the parties to it for some time to come.

5. The issue is whether the court needs to move directly to the process of building a paternal relationship for [X], based on the more natural environment of her father’s home, for relatively confined periods of time, as a prelude to incrementally extending that time until overnight time is reached or whether the intermediate response advocated by Ms Batten is preferred, which will potentially provide further reassurance to her and so a firmer base for the next controversial step to be taken.

6. On balance, I have reached the conclusion that it is preferable to adopt a more cautious approach, but not as extensively as the mother proposes.  Risk remains but, in my view, it has been much moderated by what is reported by the CCC. 

7. I will order that there be a series of three further sessions, on a fortnightly basis, at Kids Connect, thereafter the time can be each Saturday, as Mr Setchell proposes with handover to occur at the CCC.  The primary purpose of reinstating a fairly brief and less rigorous form of supervision, at Kids Connect, being to provide a safe reintroduction of father to child after the recent break in time from the last visit in June.

8. The case has not progressed as expeditiously as I would have liked through the court process.  No end date has been fixed and no arrangements made for an expert parenting assessment of the parties themselves.  In these circumstances, I will refer the parties to a family dispute resolution conference on 28 November 2018 to discuss arrangements for [X] going into the future, including the festive days of Christmas and birthday prior to the matter returning to court on ****.

9. 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 ninety seven (97) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:     31 August 2018