SETCHELL & BATTEN (No.3)

[2020] FCCA 1164

FEDERAL CIRCUIT COURT OF AUSTRALIA

SETCHELL & BATTEN (No.3) [2020] FCCA 1164

Catchwords:
FAMILY LAW – Interim parenting arrangements for child aged 4 – allegations of family violence – mother alleges child was assaulted by father – father denies allegations – high conflict – assessment of risk – proportionate response to risks identified – questions to be asked – best interests.

Legislation:

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

Cases cited:

Setchell & Batten [2016] FCCA 2980

Setchell & Batten (No.2) [2018] FCCA 2402

Applicant: MR SETCHELL

Respondent: MS BATTEN

File Number: ADC 2489 of 2016

Judgment of: Judge Brown

Hearing date: 11 March 2020

Date of Last Submission: 11 March 2020

Delivered at: Adelaide

Delivered on: 11 March 2020

REPRESENTATION

Counsel for the Applicant: Ms Cocks

Solicitors for the Applicant: Barbaro Thilthorpe Lawyers

Counsel for the Respondent: Mr Clarke

Solicitors for the Respondent: Clarke Hemmerling Lawyers

Counsel for the Independent Children’s Lawyer: Mr Boehm

Solicitors for the Independent Children’s Lawyer: Legal Services Commission of South Australia

ORDERS

1. This matter be listed for final hearing before Judge Brown on 6, 7 & 8 May 2020 at 10.00am NOTING 3 days hearing time has been allocated and will not be exceeded without leave of the Court.

2. The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 8 April 2020.

3. The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 22 April 2020.

4. On or before 22 April 2020 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.

5. The applicant pay such daily hearing fee as required pursuant to the Family Law (Fees) Regulations 2012.

6. The family report writer, Ms A attend court on the final day.

7. The time which the child X born in 2016 spends with the father pursuant to the order made on 22 May 2019 resume on Saturday, 14 March 2020 NOTING such time occurs:

   (a)Each alternate Saturday from 10:00am to 4:30pm commencing on 14 March 2020; and

   (b)Each intervening weekend from 10:00am Saturday to 4:30pm Sunday commencing on 21 March 2020.

8. The parties on or before 12:00pm noon Friday, 13 March 2020, do all things necessary to confirm their enrolment with the Region B Child’s Contact Services to effect handovers NOTING if those services are not available, handovers occur inside the Suburb C Police Station.

9. Until further order:

   (a)All orders pertaining or requiring the mother to use a nominee (apart from the said services) to effect handover on her behalf be, and the same are hereby suspended; and

   (b)The mother be restrained and an injunction is hereby granted restraining her from causing or permitting Mr D to attend the said services or any other handover.

10. The father is at liberty to receive information regarding the child from her kindergarten and any other educational institution she attends, with such information to include the child’s attendances, absences, her development, her wellbeing and her educational progress.

IT IS NOTED that publication of this judgment under the pseudonym Setchell & Batten (No.3) 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

1. These reasons for judgment were delivered orally immediately following the conclusion of the interim hearing between the parties concerned.  The orders which were made, which reinstituted earlier orders of the court relating to care arrangements for the child concerned, remain controversial and have not been followed.

2. This has led to further interim proceedings being instituted, in the difficult circumstances arising from the Covid19 pandemic crisis.  Given the moment of these subsequent proceedings, it is appropriate that these reasons be transcribed and released to the parties concerned.

3. This afternoon, I have to deal with an application in a case in which Mr Setchell is the applicant and Ms Batten is the respondent.  The parties are the parents of a child, X, who was born in 2016. 

4. So X is recently four years of age.  Last year, on 22 May 2019, against a background of protracted and significant acrimony and dispute, some orders were made, by consent, which saw X spending time with her father on a fortnightly basis from 10.00 am until 4.30 pm on the first Saturday of the fortnight and in the second week of that fortnight time be extended to overnight, being from 10.00 am Saturday until the following Sunday at 4.30 pm.

5. For the purpose of giving effect to this arrangement, the child was to be exchanged between the parties at a children’s contact centre with handovers to be facilitated by the parties themselves.  The children’s contact centre in question is at Suburb E.  The fact that a children’s contact centre was utilised is indicative of the longstanding mistrust between the parties. 

6. The proceedings in this case have been on foot since 6 July 2016.  Necessarily, this must mean that, other than for the first three months of X’s life, the parties have been in constant litigation with one another about arrangements for the care of their child.  They have no shared experience of caring for her and each mistrusts the other to a significant degree.  This state of affairs cannot be helpful for X’s emotional equilibrium and development.

7. A variety of interactions have been engaged to maintain a relationship between the child and her father, given the parties separated prior to her birth.  These have included professionally supervised time by a trainee psychologist, Ms F; periods of time of professionally supervised time at a children’s contact centre; and other arrangements, culminating in unsupervised time away from the children’s contact centre. 

8. From the father’s perspective, it has been a long and tortuous process.  He asserts that the mother has consistently disregarded orders.  This has led to him bringing contravention proceedings against Ms Batten.  The court has been required to publish two lengthy judgments in respect of the case, which have centred on issues relating to the need for supervision of the father’s time with X.[1] 

   [1]  See Setchell & Batten [2016] FCCA 2980 and Setchell & Batten (No 2) [2018] FCCA 2402

9. The court has taken a cautious approach given the allegations of violence; the lack of any cohesive parenting relationship; and the tender years of the child concerned.  As such, the initial phase of the case was marked by a high degree of supervision of the father’s time with X.

10. Because of the difficulty in the case, X has been independently represented in the case.  The independent children’s lawyer is to be regarded as a party of equal significance to the other parties in the proceedings, the mother and father.  That is to say, the independent children’s lawyer has a right to make submissions and, indeed, has a statutory obligation to advocate the position he believes is in X’s best interests.

11. The independent children’s lawyer is Ashley Kent.  Mr Kent is an experienced family lawyer employed by the Legal Services Commission of South Australia.  He has briefed a barrister, Mr Boehm to appear on his behalf in these proceedings.

12. It has significantly been the mother’s position, throughout these proceedings, that Mr Setchell is a coercive and controlling person, who is extremely violent and was violent towards her during the parties’ brief relationship.  For his part, Mr Setchell has denied these allegations.  The allegations have not, as yet, been subject to any outside scrutiny by the court.

13. As I say, in May of 2019, after a family report had been prepared, the parties, to their credit, agreed on a regime which, in my view, was, in generic terms, congruent with X’s likely stage of development.  The report was prepared by Ms A, a family consultant with social work qualifications.

14. Ms A’s report was dated 18 April 2019.  She recommended that the father begin to have overnight time with X; with handover to be at a children’s contact centre; and with time to be increased once X started at kindergarten. 

15. X was observed to interact with both her mother and father, who attended with his partner, Ms G in a positive and affectionate manner.  X herself was described as a relaxed, happy, playful, well-adjusted child [who delighted] in shared play with her father and Ms G.

16. This was the background to the 22 May orders.  It is the father’s position that there have been constant difficulties with those arrangements and that the mother has been resistant to going through with the intention of those orders and has claimed that the child is unwell or has not been supportive of his time.  The father has subsequently married Ms G but X did not attend his wedding, which is a source of considerable unhappiness for him.

17. When the case returned to court in July of 2019, the positions of the parties remained polarised in the extreme.  In this context, their competing applications were fixed for final hearing in May of 2020 and Ms A was asked to update her report in the context of the next stage of time between the father and X having been implemented.

18. The mother’s position was that the child remained reticent and cautious about her father, and from her perspective, this must mean there was something untoward going on in her father’s household.  The father’s position is that the mother, for reasons to do with her own emotional needs, will not support his relationship with X and is, either consciously or unconsciously, manipulating the child against him.

19. This essentially provides the background to the current proceedings.  It is the mother’s position that in early December of last year – Saturday 7 December to be precise – the child sustained an injury to her eye, whilst in her father’s care.  It is further her position that the child later disclosed to her that she had been punched in the eye by her father. 

20. This led to medical intervention and photographs of the child’s face being taken.  On 10 December 2019, a Dr H of the J Medical Clinic apparently examined X and reported as follows:

    “This is to confirm that X attended the practise today.  She had bruising over her right eye and had reported that her father had punched her in the eye when he was angry and she was scared.”

21. The doctor in question does not report directly what the child said either to him or the mother.  He utilised the past tense in respect of what she said and it may be that he was reporting what Ms Batten said to him rather than what X said to him directly. 

22. Anyway the incident triggered a Child Protection investigation and resulted in the father not spending any time with X, although initially the mother indicated to him that she was unwell on the subsequent contact weekends.  However, he complains that no medical certificate was provided to him.

23. This was the context in which Mr Setchell instituted a fresh round of proceedings, which he did on 31 January 2020.  He denies assaulting X.  He has been interviewed by police – he asserts that this occurred at the mother’s insistence. 

24. He has not been charged with any offence.  He has seen a photograph of X, which he asserts indicates a small bruise on her face.  He further asserts that the police officer who spoke with him was of the view that X had been coerced by her mother to make the statement that he had injured her.

25. I have been provided with a report from the Child Protection worker who was tasked with investigating the matter.  The worker concerned, Ms K also interviewed X.  Significantly, Ms A also revisited the family, in anticipation of the upcoming trial, and updated her family report on 10 March 2020.  Accordingly, I have a significant amount of expert evidence about the incident in question, in respect of which the parties themselves have very different views.

26. I also have the children’s contact centre report in respect of the supervised handover, which occurred on the Saturday prior to the mother’s reporting of the relevant injury.  The report noted no injury and X herself was questioned, by a centre worker, about how the visit with her father had gone.  She was positive and happy about it.

27. What is concerning about this particular case is that the child has had a documented injury and has consistently said to a number of experts that it was her father who occasioned the injury.  It is the mother’s position in that context that she is only acting protectively so far as X is concerned. 

28. The father’s position is that there should be a return to the previous orders of May.  The mother’s position is that it would be a proportionate response to the risk arising in this case that time be kept to daylight hours only.

29. Ms K, the social worker who investigated the child’s injury and the child herself in March of this year, opines that the notes from the children’s contact centre indicate that on the day of the alleged incident of harm to X’s eye, X did not present as distressed at handover following the visits with her father and selected a happy feeling card to represent her feelings about her visit with her father and his partner.  This would be considered unusual if X had been subject to an assault by her father during the visit.

30. The acrimony in this case and the possibility that X may have been exposed to negative attitudes about each of her parents adds further complexity to the difficulty in understanding the allegations of abuse.  Unfortunately it has not been possible to clarify whether X has been physically assaulted on the basis of X’s interview and other information obtained during this assessment.  So the CPS has concluded that they are not in a position to make a finding that the child has been injured by her father.

31. It is not my role to determine on the balance of probabilities whether X has or has not been assaulted by her father.  Rather, my task is to assess the risk.  Is there a risk that in future X may be assaulted or exposed in some way to emotional abuse or neglect by her father?  It is not the case that I must be satisfied that there is no risk whatsoever. 

32. Rather, the test is whether the risk is one which is unacceptable for me to take.  Having assessed the risk, I must put in place a response which is proportionate to the degree of risks so identified, and in this context it is the mother’s position that a proportionate response to the degree of risk is that there should be no overnight time.

33. As I say, Ms A re-engaged with the family concerned in late February of this year.  Ms A interviewed each of the parties concerned, and as perhaps one might expect, Mr Setchell’s view was that his first overnight visit with X was fantastic and thereafter this continued to be the case until his wedding, which was scheduled in 2019, when X was to be the flower girl. 

34. But as I say, that did not occur, and from Mr Setchell’s perspective, I suspect that he is perplexed that the little girl concerned did not get the opportunity to be a flower girl because, in general terms, one would think that a child of X’s age would like being a flower girl and he suspects that the mother was motivated, for other reasons, to ensure the visit did not take place. 

35. Of course I do not know whether that it is the case with X and what was her personal attitude to being at the wedding.  Anyway, again, the wedding issue is emblematic of the longstanding acrimony between her parents, which this child has to negotiate, which cannot be helpful to her, one would think.

36. The mother’s perspective was that the child is taciturn and reluctant to spending time with her father, which gives rise to all sorts of concerns that something is going wrong in the father’s household, and this incident with the child’s eye is just an example of what she regards as Mr Setchell’s hair-trigger temper. 

37. As Ms K opined, the difficulty in this case is X is a child who is not developmentally mature, she responds to the emotions of those around her.  It would be naïve to think that she is not well aware that her mother has an essentially negative view of Mr Setchell.  She loves her mother, no doubt.  How does she deal with that?  That, of course, is a rhetorical question, and when the trial proceeds in a few weeks’ time that is, no doubt, an issue that will be canvassed with Ms A.

38. Ms Batten has also re-partnered.  Her partner is Mr D, and he has been the mother’s proxy at handover arrangements.  One would expect, for obvious reasons, that Mr D would be aligned with Ms Batten, whom he loves, and would adopt his partner’s view of Mr Setchell, although perhaps he has not got his own experience of Mr Setchell – from his own experience. 

39. In any event, I have some reports from the children’s contact centre at Suburb E as to Mr D’s involvement in handover, most recently in February of this year when, at best, I think it could be said that he was not strictly helpful or proactive to the process of X being encouraged to go with her father.

40. Court orders are significant, and each of the parties needs to bear in mind that I did not lasso you in here and impose my will upon you.  You came in here because there is a dispute between you.  Many, many, many, many parents have disputes with one another about their children.  They come to court to have those disputes resolved according to law with resultant orders being made, which regulate their disputes. 

41. I have to think about the integrity of the system overall.  If people do not obey orders, such orders will lose their currency and the system will fall into disrepute.  This would not be helpful for children and the integrity of the family law system overall, which is designed to be helpful to both parents and children.

42. There are obligations that people have to follow orders.  I am not sure what is exactly happening in this case, but it is not good enough for a parent to give lip service to an order and then, you know, metaphorically cross his or her arms and say, “Look, you know, the child is being wilful, or stubborn or upset.  There’s nothing more I can do.”  Parents have to keep trying.  They have to be proactive and so do those who are associated with them. 

43. That would seem to be the essential dilemma of this case.  Is Ms Batten doing enough to support X’s relationship with her father and to follow the court order or is she, for some reason currently unclear, intent on disrupting that relationship so that X does not have a father figure in her life? 

44. Ultimately, Ms Batten does not have the entitlement to disrupt the child’s right to maintain a meaningful level of relationship with those who are significant to her.  These individuals include not only her father but also members of her paternal family, who have also played a significant role in the case up to this stage.  Ms A, the expert who will give evidence in a few weeks’ time, has said there is a problem with this case and, no doubt, it will be the subject of the proceedings in May.

45. In determining the issues in this case, I have to apply Part VII of the Family Law Act 1975.  In the past I went to some considerable care and explained in writing what the legal principles I have to apply are, and each of the parties got the judgments.  I think there are two.  I would have hoped that they read them.  Whether they did or not, I do not know.  I concede that legal judgments are in fairly formal language.  The law itself is fairly formal and complicated, but it is not that hard. 

46. Everybody knows that I should make an order that is in the best interests of the child concerned.  Everyone knows that because everyone comes into court and says, “The only thing I’m concerned about is the best interests of my child.” 

47. But the law is more nuanced than that because I have to look at a long list of things, which I have to take into account in determining what orders are likely to be in a child’s best interests. The list of considerations is contained in section 60CC of the Family Law Act.

1. The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations.  Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Family Law Act set out in section 60B.

2. There are two primary considerations, which are as follows:

   “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.”

3. 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 protective concerns applicable to the children who are the subject of the relevant proceedings. 

4. These two things, the primary considerations, are the big-ticket items, and most cases are about the big-ticket items, certainly this case is. 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).

5. 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.  But the two big-ticket items are the need to protect a child from being exposed to abuse, neglect and family violence, and the benefit to the child of having a meaningful relationship with both of the child’s parents. 

6. In my view, to have a meaningful relationship with a parent, a child has to have sufficient time with that parent.  The time has to be reflective of development needs, but there also needs to be enough time to add meaning to the relationship. 

7. So parents and children have to interact in a variety of contexts, doing fun things, playing ball, looking at children in their party frocks, but also more boring things, like tending to a child who perhaps will not go to sleep properly or cutting a sandwich, feeding a child.  Also, children have an entitlement to know where they fit in on both the maternal and the paternal side.

8. So meaningful relationships are important, and this case has been going on for a very long time and Mr Setchell has had a variety of time and now he has got to overnight time.  So the desire, both on his part and the part of the court, was that meaning would be added to his relationship with X. 

9. As I say, I have got to give more weight, in appropriate cases, to the need to make orders protecting children from coming to harm because, you know, if a child has been assaulted by a parent that is the worst example of parenting: hurting a child, it is a complete abnegation of what it is to be a capable parent.  It is abhorrent.  It is abhorrent.  It is terrible to think of a parent assaulting a small child.

10. But I also have to bear in mind that there are many explanations as to why children get injuries and why they say particular things.  I have got to look at all the evidence overall and think objectively: what is the risk?  And, of course, one of the greatest risks in this case is the parties’ poor relationship, which provides fertile ground for miscommunication and for innocent events to be misconstrued.  Also, in some cases, parents consciously exaggerate or misreport incidents in an attempt to gain the upper hand over the other parent concerned. 

11. Everything the parents do, in this case, is viewed by the other, through a prism of hostility which is distorting.  No one trusts one another.  No one has the capacity to get on the phone and say, you know, “What happened to X?  Did she fall over or whatever –?”

12. Rather everyone thinks automatically of the worst.  The worst.  What effect is that going to have on the child as she grows up?  Anyway, I have to assess the risk and I am not of the view that the risk of reinstating the overnight time is unacceptable, for the following reasons:

    ·No injury was noted on X’s report on return to the children’s contact centre;

    ·Her mood was happy;

    ·The DCP have not substantiated the complaint;

    ·The father denies the allegation and the police are not taking any action against him;

    ·X’s behaviour is not consistent with a child who has been abused by her father.

13. In reaching this conclusion, I have also read Ms A’s report carefully.  She has seen X with her father on not one or not two, but I think three occasions – perhaps I am wrong about that – and she says:

    “Whilst appearing comfortable in close proximity to her father, initially X did not initiate physical contact with her father, nor did Mr Setchell impose this on X.  However, after about 15 minutes X asked her father to tie her shoelace and moments later she was seen to nestle into him while seated side by side on the floor building train tracks.  Mr Setchell appeared attuned to X’s cues and gently placed his arm over her back before giving her a quick, affectionate back rub.

    After 20 minutes of interaction the consultant informed X and the adults that it would be time to leave in five minutes.  Mr Setchell asked X if it was okay to give her a hug goodbye and X instantly opened her arms and leaned into her father.  She ended up sitting in his lap on the floor, enmeshed in his arms, whilst giggling as the hug turned into tickles.  X then spontaneously jumped from her father’s lap into the lap of Ms G, tickling her whilst laughing at her own actions.  X then repeated the same with the paternal grandfather who was seated across the room, on the lounge.”

14. This report of the observed interaction between the two speaks of the child having a meaningful level of relationship with her father.  The dilemma in this case is that Ms A says, well, she does not know, as nor do I, precisely how this child came to have an injury.  In fact, it may be impossible ever to get to the bottom of that, but does that mean that the child will not have a meaningful relationship on the basis of an uncertain allegation? 

15. Because the risk cuts both ways.  Should the child not have the opportunity to have a meaningful level of relationship with her father which Ms A observed, with the two giggling and hugging each other, on the basis of the mother’s suspicions and other pieces of evidence which are uncertain or ambiguous?  I am not persuaded at this stage that there is. 

16. In this context, Ms A opines that at some point consideration may have to be given to the child’s primary care arrangements being changed.  She was concerned at the facility of the child to make accusatory statements about her father – both to her and other professionals – which were not congruent with how X otherwise presented. 

17. That is a very significant recommendation – a very significant recommendation – a very significant recommendation and it is on the cards.  It is on the table.  So everyone needs to think about that very carefully as we move forward.

18. Everyone needs to think about what court orders mean, and that it is not good enough to say, “Look, I did my best.  I really tried, not my fault, not my fault, not my fault,” whilst the endless struggle between the parents goes on and on for the upper hand.  Everyone, I think, needs to think very carefully about that. 

19. So for those reasons I am going to make the orders as proposed by the father.  I do not think Mr D, at this juncture – I mean him no disrespect, but I think another approach needs to be taken because there is an expectation that orders, once made, are not to be interfered with. 

20. So for those reasons, I will make the orders in terms of the minute.  The orders will be as set out at the commencement of these reasons for judgment.

I certify that the preceding sixty seven (67) paragraphs are a true copy of the reasons for judgment of Judge Brown .

Associate: 

Date: 4 June 2020