SETCHELL & BATTEN (No.4)

FEDERAL CIRCUIT COURT OF AUSTRALIA

SETCHELL & BATTEN (No.4)

[2020] FCCA 1365

Catchwords:
FAMILY LAW – Arrangements for care of child aged four years – child has hitherto lived with the mother – parties engaged in continuous litigation regarding level of father’s engagement with the child – mother asserts father violent and controlling person – father asserts mother is intent on preventing child having a proper level of relationship with him – expert reports provided – evidence in respect of supervised handover arrangements – psychological abuse – limited issues hearing convened – hearing took place electronically – mother unrepresented – father and independent children’s lawyer propose provisional change of care arrangements – meaningful relationship – protective concerns – effects of change – assessment of risk – insight into parental responsibility – capacity to provide for child’s emotional needs – best interest.

Legislation:

Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 68LA, 97

Cases cited:

B & B (1993) FLC 92-357

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman (2015) FLC 93-654

Goode & Goode (2006) FLC 93-286

Mazorski v Albright (2007) 37 FamLR 518

N & S and the Separate Representative (1996) FLC 92-655

Slater & Light [2013] FamCAFC 4

Stevenson v Hughes (1993) FLC 92-363

Setchell & Batten [2016] FCCA 2980

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

Setchell & Batten (No.3) [2020] FCCA 1164

W & W (abuse allegations: unacceptable risk) (2005) 34 FamLR 129

Applicant:

MR SETCHELL

Respondent:

MS BATTEN

File Number:

ADC 2489 of 2016

Judgment of:

Judge Brown

Hearing dates:

8 & 13 May 2020

Date of Last Submission:

13 May 2020

Delivered at:

Adelaide

Delivered on:

29 May 2020

REPRESENTATION

Counsel for the Applicant:

Ms Cocks

Solicitors for the Applicant:

Barbaro Thilthorpe Lawyers

Counsel for the Respondent:

In Person

Counsel for the Independent Children's Lawyer:

Mr Boehm

Solicitors for the Independent Children's Lawyer:

Legal Services Commission of South Australia

ORDERS

That the father’s Application in a Case filed on 15 April 2020 be adjourned for further consideration to 6 July 2020 at 10.30am.
That during the period of the adjournment the child X born in 2016 spend a period of continuous time with the father from 11.00am on 12 June 2020 to the adjourned date on 6 July 2020 at 10.30am.
That the mother deliver up the child X to the father at 11.00am on 12 June 2020 with delivery up to occur at the child-minding service at Court on Level 2, 3 Angas Street, by Ms A and subject to her supervision pursuant to section 65L of the Family Law Act 1975, with the mother to immediately leave the service upon delivery of the child to the service.
Failure by the mother to comply with the terms of paragraph 3 herein AND UPON the father filing an Affidavit attesting to the mother’s failure to comply with the terms of paragraph 3 herein, a recovery order be issued pursuant to section 67Q of the Family Law Act 1975 in the usual terms.
That the mother undertake reportable therapy with the psychologist nominated by the Independent Children's Lawyer, Ms Q, directed towards assisting the mother to comply with her obligations under these orders and to support her to recognise the benefit to X of having a meaningful relationship with her father, with the costs of such therapy to be borne by the mother.
That the Independent Children's Lawyer forward to Ms Q a copy of:
(a)These written reasons for judgment dated 29 May 2020; and
(b)A copy of the Family Assessment Report of Ms A dated 18 April 2019 and the updated Report dated 10 March 2020.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon Ms A on a date and at time/s to be advised for the purposes of the preparation of an updated family report, such report to be released by the adjourned date of 6 July 2020.
Further consideration of the matter is adjourned to 6 July 2020 at 10.30am.

IT IS NOTED that publication of this judgment under the pseudonym Setchell & Batten (No.4) 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

Mr Setchell “the father” and Ms Batten “the mother” are the parents of X, born in 2016. They are in dispute about both interim and final arrangements for the care and parenting of X and have been for a lengthy period of time.
The parties have never been married. They began to live together in 2015. They separated on 11 June 2016, when X was around three months of age.
The father commenced the proceedings on 6 July 2016. The object of his application was to pursue a relationship with X. He had not spent time with the child following the parties’ separation.
The parties have been in constant litigation in the almost four years, which have followed. In summary, the father has consistently asserted that, for reasons unknown to him, possibly relating to some form of mental illness from which she suffers, the mother is incapable of supporting an appropriate level of paternal relationship between him and X.
More significantly, as the case has developed, it has become the father’s conviction that the mother’s conduct, in this regard, constitutes emotional abuse of X, in the sense that she, (Ms Batten) has primed the child to express negative views of the father, contrary to her personal experience of him; has orchestrated the child to become emotionally dysregulated and distressed in the context of spending time with her father; and has subjected the child to unnecessary examination by experts because of her irrational or manufactured concerns about Mr Setchell.
On the other hand, it is the mother’s position that both she and X have been the victims of the father’s family violence in the past. In these circumstances, it is her position that she has only done what any reasonable and sensitive parent would do to protect her child from coming to harm.
Significantly, as the case has unfolded from her perspective, she has denied that she has done anything, either consciously or unconsciously, to influence X to resist spending time with her father. To the contrary, it is Ms Batten’s position that X is a sensitive child, who is responding to an emotionally abusive situation generated by the father. Essentially, she portrays X as an abused child.
Given the polarised and extreme positions of each of the parties, at an early stage of proceedings – 23 August 2018 – it was ordered that X be independently represented in the case. This intervention has done little, if anything, to reduce the tensions and mistrust between the parties and so keep the focus on X, through the promotion of her best interests, within the matrix of considerations created by the Family Law Act 1975.
The genesis of this mistrust is easily identified. The parties were casually dating, when Ms Batten unexpectedly fell pregnant. This led to their cohabitation, when they must have barely known one another. Clearly, they never planned to start a family together. As a consequence, they have had no shared experience of parenting X together in a common household. It seems highly probable that their respective personalities, backgrounds and aspirations and views about all manner of things, including parenting, are largely incongruent.
Their relationship together was brief and unhappy and perhaps destined to fail. Currently, they each blame the other for this disastrous state of affairs. If they did not have a child together, they would have most likely gone their separate ways. But they do have a child and so remain linked together. Certainly, Mr Setchell has no desire to walk away from his relationship with X.
In these circumstances, it was inevitable that when Mr Setchell invoked the legal process, thereafter every interaction of the court and every order which it has made has been fraught with difficulty and controversy, and, to a certain extent, a level of hysterical overlay.
This process has led to three previous published judgments and numerous other court mentions, including several sets of contravention applications mounted by Mr Setchell, in which he has alleged Ms Batten has failed to abide by court orders in respect of making X available to spend time with him.
In addition, there has been a DNA test to scientifically ascertain paternity; two family reports prepared; a child protection services psycho-social assessment report; and extensive involvement from children’s contact centres,[1] which have been invoked both to supervise the father’s time with X and subsequently as mechanisms for her to be exchanged between the parties.
[1] Hereinafter referred to as CCCs
Over a tortuous process, which has taken place over several years, involving multiple interim hearings, Mr Setchell’s relationship with X has advanced from brief periods of professionally supervised time to overnight time, on alternate weekends.
This most recent arrangement broke down in late December of 2019, against a background of allegations of child abuse, leading to the most recent judgment.[2] At the time, a final hearing had been scheduled to take place in early May of 2020. In anticipation of this final hearing, an updated family report, to be prepared by the previously appointed expert, Ms A, had been scheduled for completion and release in early February of this year.
[2] See Setchell & Batten (No3) [2020] FCCA 1164
One of the purposes of this final hearing was to enable the court, if possible, to make findings of fact in respect of one of the central evidentiary issues in the case, namely whether the parties’ relationship was characterised by coercive and controlling family violence emanating from Mr Setchell and, if so, what were the implications of this for X emotionally and developmentally.
This issue featured in each of Ms A’s family reports. Mr Setchell has consistently denied inflicting family violence on Ms Batten. Whilst being able to provide an opinion in respect of each of the parties’ presentation to her, Ms A was at pains, in each of her reports, to point out that the final resolution of the issue fell to the court, as the ultimate finder of fact. In her first report,[3] Ms A assessed Mr Setchell as follows:
“… Mr Setchell did not present as a man who was consumed by the need for control or who was unable to function effectively as a pro-social positive role model for X.”[4]
[3] Family report dated 18 April 2019 hereinafter referred to as “the first family report”
[4] First family report at page 17 [60]
In this context, whilst acknowledging Ms Batten’s concerns about family violence and its implication for her own mental health, particularly an alleged diagnosis of PTSD, which remained extant at the time of her first report, Ms A opined as follows:
“Whilst a number of concerns remain before the court, with the information at hand, on the balance of probabilities, it was predicted that X would not be at an unacceptable level of risk of harm in either parent’s care. Rather, it was predicted that she would benefit and flourish from spending quality and meaningful time in each parent’s care. One benefit to such an arrangement would ideally be allowing X and her mother to ‘single reality test’ any negative thinking and mistrust Ms Batten had about X’s time in her father’s care, hopefully shifting Ms Batten’s perception of Mr Setchell over time.”[5]
[5] Ibid at page 17 [62]
This opinion led Ms A to recommend, as a prelude to X’s time with her father being built up, Mr Setchell begin to spend time with her, on a fortnightly basis, from Saturday morning until Sunday afternoon in the first week and during the day in the other Saturday of each fortnight. A CCC was to be utilised for the exchange of X.
The parties were unable to agree any advance on this regime of time through a process of alternative dispute resolution conducted under the aegis of the Legal Services Commission in late July of 2019. It was this impasse, which led to the final hearing dates being allocated and Ms A being requested to update her family report.
The May 2019 regime of time did not proceed without incident. Rather, it was Mr Setchell’s position that Ms Batten failed to deliver X to the relevant CCC, at Suburb E, on several occasions, without any proper explanation, culminating in the child last being made available to him on 7 December 2019.
Against this background, on 31 January 2020 he filed an application in a case in which he sought that X live with him and spend time, with her mother, on each Saturday. He requested that his application be listed urgently. The court accommodated his request and it was listed for hearing on 14 February 2020.
Ms Batten responded to the application on 12 February 2020. It was Ms Batten’s position that the father’s time with X should be suspended, or in the alternative, there should only be professionally supervised time between the father and the child at a CCC. These applications, in concert with Ms A’s second family report, feature in the court’s third published judgment.[6]
[6] See Setchell & Batten (No3) [2020] FCCA 1164
In his supporting affidavit, Mr Setchell deposed that overnight time did not commence until late July of 2019, due to unresolved logistical issues relating to supervised handover, which were ultimately by changing the location of the CCC. It was also his position that other aspects of the arrangement were plagued with difficulties thereafter, which difficulties he attributes to Ms Batten.
Mr Setchell married his current wife, Ms G in 2019. X was to be a flower girl at the wedding. X was delivered to the CCC but did not leave with her maternal grandmother and accordingly, was not present at the father’s wedding, which was scheduled for a Saturday.
Mr Setchell further complains that X was not delivered, to the relevant CCC, as required, on 3 October 2019, 16 November 2019 and the child herself ostensibly declined to leave with him on 23 November and 30 November 2019. The father deposes that no medical certificates were provided to justify the child’s non-attendance on 3 October and 16 November.
However, X did spend time with her father on 7 December 2019. From the father’s perspective, the visit went well and the child’s return to the mother was uneventful. The child was again due to spend time, with her father, on 14 December 2019, but Ms Batten advised that X was unwell, but provided no relevant medical certificate.
As he was entitled to do, pursuant to earlier orders of the court, Mr Setchell enquired of X’s general medical practitioner as to the nature of the particular health issue, which had apparently prevented her spending time with him on the weekend of 14 December 2019.
It was in this context that he was advised by the doctor concerned that Ms Batten had presented X to the practice on Tuesday, 10 December 2019 regarding a bruise to the child’s eye, which the mother asserted had been caused by X being punched in the face by him (Mr Setchell). He was apparently shown a photograph of the alleged injury.
Mr Setchell continued to attend at the relevant CCC in the hope that Ms Batten would deliver X there, but to no avail. He was not able to spend time with X on the weekend prior to Christmas or over the major celebratory days of Christmas itself because X was not made available to him, either at the Suburb E CCC or at the default location, which was the Suburb C Police Station.
Throughout this period, from Mr Setchell’s perspective, he was at a loss to know why X was not being delivered as neither Ms Batten nor her solicitor had advised him that anything was amiss and he had not injured the child. In this context, he sought the assistance of police, who contacted the mother. Subsequently he was advised that the mother had contacted the Suburb L Domestic Violence unit “to cancel X’s time with me”.
Up to this stage, Mr Setchell was apparently unaware that the mother had made a formal complaint against him as he had not been personally contacted by either SAPOL or the Department for Child Protection. Ultimately, on 22 January 2020, police attended at Mr Setchell’s home and he was questioned.
Mr Setchell was shown a photograph of X’s eye which showed an injury to it. Mr Setchell was concerned that this photograph was different to the one he had earlier been shown, when he attended at X’s doctor. Mr Setchell is suspicious about the provenance of this photograph.
In any event, Mr Setchell denied assaulting X. He deposes that the relevant police officer informed him that she had attended at his home only because the mother insisted that police do so. For what it is worth, given its origins in hearsay, Mr Setchell also indicated that the police officer concerned informed him that she believed X had been coerced and there were issues concerning Ms Batten’s mental health.
In his affidavit, Mr Setchell raised other concerns, which he held relating to Ms Batten’s care of X. These can be summarised as follows:
·Ms Batten completely excluded him from any information regarding X’s health, personal development and particularly relevant so far as the start of 2020 was concerned, where she would be attending kindergarten;
·X had begun to refer to him as “Mr Setchell” rather than “daddy” which she had previously done;
·X had apparently suffered two injuries to her eye, whilst in her mother’s care;
·X, when she was delivered to him, was dressed in dirty and inappropriate clothes and her hair was tangled and unkempt;
·On 7 December 2019, X was presented with face paint on her face, which was inappropriate given she suffers from eczema.
In her responding affidavit, Ms Batten deposed that X had returned from spending time, with her father, from July 2019 onward, increasingly despondent. She further deposed that X began to wet the bed and was not her usual self, which was commented upon by her day care centre.
Throughout August and September she sought medical advice but no treatment was required. Throughout this period, X began to make obscure comments that she was scared and bad things were happening, which were a secret (these were taken to be reference to what was occurring at her father’s home). She also made an odd comment to her doctor about her dad having hurt her on an occasion prior to 10 December.
In respect of the relevant weekend of 7 December 2019, Ms Batten deposed that she was able to deliver a reluctant X, to her father, by physically removing the child from her person. When she returned to collect the child she noticed there was a slight reddening about her eye, which did not initially concern her.
The next morning, she deposes that X complained about having a sore eye, which became increasingly discoloured throughout the day (Sunday, 8 December 2019). This became a black eye on 9 December 2019, which led Ms Batten to directly question X about what happened to her eye. In this context, Ms Batten deposed as to the verbatim content of her conversation with X as follows:
“When X woke up on Monday 9 December 2019 I noticed that she looked like she had a black eye.
I said,      "What happened to your eye"
She said,   "Daddy hurt my eye".
I said,        “Are you sure”
She said,   "Yes, Daddy hurt my eye".
I said,       "Was it an accident? Did you fall or something".
X then went quiet so I did not ask her anything further and did not want to jump to conclusions. I stayed home on Monday with X to make a doctor's appointment. They were completely booked out that day so I had to make an appointment to see the doctor the following day (Tuesday).
At about 6.30 pm that evening I was having dinner at my partner's parents house. Whilst we were at the dinner table X, completely out of the blue, said:-
"My eye is really sore. Daddy punched my eye. Daddy got really angry and I got really scared".
X was very emotional when she said it and was re-enacting a punching motion towards her injured eye. When X was asked if that was the truth she was very adamant that it was.”[7]
[7] See mother’s affidavit filed 11 February 2020 at [34] – [36]

It was as a consequence of these alleged disclosures that Ms Batten arranged for X to be medically examined by Dr H. Ms Batten denies that the police were in any way reluctant to investigate her complaint or provided any indication that they believed that X had been coerced or that she herself was mentally unwell.
In the lead up to the hearing scheduled for 14 February, I was provided with the contact centre notes in respect of the supervised handovers occurring on 21 September 2019 and between 23 November and 11 January 2020. The report is under the hand of Ms M, who is described as the Team Leader of the Region B Children’s Contact Services. The actual workers, who were involved with the family, are anonymised by numerical acronyms.
Neither Ms M nor the anonymous workers have provided evidence in these proceedings and so have not been subject to any cross-examination. In these circumstances, I appreciate that it is likely to be difficult for anyone, who was not actually at the handovers concerned, to obtain an accurate impression of what occurred at each relevant incident.
This is because X herself is an immature child, who’s linguistic and cognitive skills are far from mature and the intricacies of body language, necessarily implicit in a handover situation, cannot necessarily be gleaned from an account of what people literally said and did. In addition, it seems highly probable that the various handovers in question were subject to a significant level of emotional charge.
In respect of the failed handover in 2019 – the father’s wedding day – it is clear from the provided notes that the workers concerned did not note that Ms Batten did anything to encourage X to go ahead with the changeover. Rather, the notes indicate that Ms Batten repeatedly said the child had already made it clear that she did not want to go.
The contact centre process, which occurred on this occasion, was extraordinarily protracted. My impression, again which I concede may be mistaken, was that the workers concerned went to extraordinary lengths, in the face of Ms Batten’s passive resistance, to secure X’s attendance with her paternal grandmother, whom all agree is referred to as “mama” by X, in distinction to Ms Batten who is “mum”.
The relevant notes are contained in four closely typed pages. They culminate with the following:
“The worker 753 asked X if she would like to go with mama today and see dad. X made a noise that worker 753 could not hear and worker 753 asked X if she could see her eyes as she could not hear what she said. The worker 753 asked her again and X said, "Mama." Ms Batten then talked about how X had already made her views clear earlier and was not happy with the process used and felt like X had been coerced into making a decision. The worker 753 told Ms Batten that a decision needed to be made about what to do, as the other service needed to start in the playroom.
The worker 753 suggested that Ms Batten ask X what she wanted to do. asked and X said she wanted to go with mama. asked the worker for clarification of what would be written in the notes about what was happening. then asked again and said, "Do you want to come with Mum and do things with Mum or go with Mama?" X replied, "Mama." X then followed the supervisor towards the door, ready to leave. The supervisor then asked X if she was ready to go and see mama, and X smiled, nodded and said, "Yes." X stood standing close to the supervisor staring at the door, waiting for it to open. The worker 753 then asked X if she wanted to say goodbye to mum and X returned to and said goodbye and took the communication book out of Ms Batten's hand and returned to the supervisor and handed the communication book over. X returned to the door ready to go.
Ms Batten then told X to stop and said she needed one minute to think about this. The worker 753 asked X if she wanted to take her jacket and X returned to , took her jacket, and returned to the door ready to leave again. Ms Batten then talked again, about how the process had taken 40 minutes, and that the CCS had coerced X into her decision. The worker 753 then stated that a decision needed to be made about what was happening as the other service needed to commence. Ms Batten then asked that moving forward that only one person speak with her and X when X is refusing to go. The supervisor agreed to this and also asked that Ms Batten allow the CCS to explore any refusal with X privately as it was important to capture the child's view. Ms Batten said, "No, I need to be there to advocate for her." Ms Batten then said that every time the CCS forces X to go, X blames her for allowing that to happen. The supervisor acknowledged her comments.
The supervisor then asked X if she was ready to go and X, holding her jacket, stood at the door waiting on the supervisor to open it.
Ms Batten then proceeded to move towards X and took her by the arms saying, "No, actually. I change my mind. She is not going.” X pulled back and Ms Batten pulled X towards her. X started to cry and pulled away. Ms Batten held on for a while then let go and X moved to stand behind the worker 753's leg. X remained crying behind the worker and did not go to Ms Batten. The supervisor then picked X up and comforted X, as she was upset and crying. X did not resist this and X settled and remained in the supervisor's arms.
Ms Batten raised her voice and said that X was not going. Ms Batten continued to talk about how X had refused earlier. The worker 753 said that the conversation needed to end as X was listening and it was not appropriate.”[8]
[8] See affidavit of Ms N filed 31 January 2020 containing Contact Centre notes being annexure 1 at page 4 - 5
Mr Setchell asserts that the only proper inference, which can be drawn from this record, is that after X, in the face of some pressure from her mother, indicated her willingness to leave with the paternal grandmother, upon which Ms Batten actively intervened to ensure that this did not occur, which is evident from the statement attributed to her “oh actually, I have changed my mind, she is not going.”
As previously indicated, X did leave the CCC on the morning of 7 December with her father and Ms G. This occurred notwithstanding the child initially expressing an unwillingness to go, whilst in the direct presence of her mother and her de facto partner, Mr D. However, when the worker asked Ms Batten and Mr D to leave, X is described as leaving with Mr Setchell and Ms G comfortably.
Mr Setchell returned the child to the CCC at around 4.30pm on 7 December. Nothing untoward was noted by the workers concerned, one of whom made an effort to assess X’s mood following the visit. This attempt is recorded in the following terms:
“The worker called X over to the office door. The worker asked X to choose a bear card that felt how she felt about today with her dad. X pointed at different bears and named different emotions including angry, sad and happy. The worker asked which bear was the same as her today and X said, "Happy.”[9]
[9] Ibid at annexure 2 at page 5
Mr Setchell places considerable emphasis on this entry, which he contends is not consistent with a child who had been assaulted during the preceding visit. From his perspective, it is also significant that no injury was noted and the child’s affect was not unusual.
As a consequence of the notification made on 10 December 2019, that X had been punched by her father, the child was referred to the child protection service, at the O Hospital, where she was examined by Ms K, a social worker with experience in interviewing vulnerable witnesses, particularly children.
Ms K provided a lengthy report, in respect of her involvement with the parties and X, as a consequence of her engagement, on 6 March 2020. Ms K first met X on 9 January 2020 and conducted a forensic interview with her the following day.
In the preliminary interview, it was noted that X was a talkative and friendly child, who developed a quick rapport with Ms K. In this context, Ms K, who referred to herself as “the clinician” reported as follows:
“The clinician provided a simple explanation about the purpose of the session; for X and the clinician to do some talking and playing to get to know each other. When the clinician asked X to tell the clinician something fun she had done lately, X stated ‘Daddy tried to do that, Daddy punched my eye’, while demonstrating with a closed fist movement toward her eye, and then poking her finger into her closed right eye.”[10]
[10] See forensic psycho social report dated 6/3/2020 at page 3
The propensity of X to give details of her father having assaulted her, without having been asked directly about these issues by Ms K, was continued during the forensic interview, which was replete with assertions by the child that she had been punched or smashed in the eye. However, X was described as being unable or unwilling to provide further details of the incident. In particular, she was not able to explain why she was scared and her father was angry.
In all these circumstances, Ms K formed the opinion that it was not possible to draw any strong conclusion regarding the likelihood that the child had been physically assaulted by her father. Ms K also reported a number of concerns about the case, which she summarised as follows:
“It remains concerning that an injury to X's eye was photographed and also confirmed by a doctor, and that X repeatedly made statements during her forensic interview about being 'smashed' or 'punched' in the eye by her father. Ms Batten has also alleged that X has been exposed to domestic violence allegedly perpetrated by her father, which would suggest potential risk to X in her father's care, although there does not appear to have been investigations into the allegations of domestic violence. Meanwhile, 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 visit with her father and selected a "happy" feeling to represent her feelings about her visit with her father and his partner. This would be considered unusual if X had been subjected to an assault by her father during the visit. 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.”[11]
[11] Ibid at page 9
To Ms K, Ms Batten reported that she had no mental health issues and did not use illicit drugs or alcohol. She further reported that Mr Setchell had been violent towards her, during her pregnancy with X, and up until the time she separated from him, when X was about six weeks of age.
Ms K summarised Ms Batten’s allegations of family violence in the following terms:
“… the physical violence allegedly perpetrated by Mr Setchell caused Ms Batten to require her “bottom teeth to be restructured” and that X had witnessed “a lot of violence”. Ms Batten further added that Mr Setchell possibly caused head injuries to X through “shaking” her. Ms Batten described Mr Setchell as having undiagnosed mental health issues and that because he was a labourer he declined to take medication.”[12]
[12] Ibid at page 4
Ms K was able to access previous child protection concerns raised with the Department of Child Protection. There was one previous notification, which occurred on 27 July 2016. The notification was that Ms Batten had been holding baby X, when the child had been grabbed from her arms by Mr Setchell after she (Ms Batten) had been pushed to the ground. It was further alleged that Mr Setchell had punched a hole in a door, close to the mother, whilst she had been holding X. The notification had been rated as requiring investigation but in fact had not been investigated.
Ms K’s report was not available to the court, at the first hearing date of Mr Setchell’s application. Nor was the second family assessment report. In these circumstances, on 14 February 2020, the court ordered that the father spend time with X, on each Saturday, between the hours of 10:00am and 4:30pm, with the time to be supervised by Mr P, the paternal grandfather. The child was to be exchanged by a nominee for Ms Batten and Mr Setchell, at the Suburb E CCC.
It is common ground, between the parties, that none of the handovers envisaged to take place with Mr P occurred. Ms Batten nominated her partner, Mr D to conduct the handover. Once again, I have been provided with a report from Ms M, in respect of what is said to have occurred, on 15 February 2020, from the CCC’s point of view. Again, the relevant report indicates that it was a protracted process, beginning at around 10:00am on 15 February 2020 and terminating at approximately 10.40am, when Mr D left the CCC with X.
The report notes that the relevant supervisor noted a semi-circular bruise, on X’s arm, when she arrived. After an introductory process, the supervisor asked X if she would like her father and grandfather to come into the room for a play. X nodded her assent. In this context, Mr D was requested to wait outside, but he declined to do so.
The relevant report indicates that Mr D indicated that he lacked trust in the workers and perceived that X’s needs would not be acknowledged, if she declined to go with her father. The supervisor advised Mr D that the usual protocol was that the drop off party left but if he (Mr D) insisted on staying, she would ask Mr Setchell if he agreed with such a course. Ultimately, Mr Setchell agreed that Mr D could stay.
During this protracted process, X is noted as continuing to play without showing any signs of distress. Mr D was asked to sit on the couch, but he declined to do so, sitting in close proximity to X. Although it is a relatively lengthy passage, in my view, it is appropriate that I record verbatim what the CCC worker indicates happened next:
“10.36 … Mr D entered the playroom. X was on the floor playing in the 'home corner', Mr D was standing in front of X. X turned and looked towards Mr D as he entered, X then turned back around and continued with her play. Poppy sat on the couch when he entered. Mr D said hello to X and knelt down a small distance behind X. X remained in her position, Mr D talked to X about the toys she was playing with and X verbally responded as she continued to play.
X lay down on her side, her head positioned towards where Mr D stood, Mr D remained kneeling at the base of her feet. X continued to respond verbally to Mr D. X smiled as she talked about the toys she was playing with, with Mr D responding.
10.39am: Mr D said, "Right that’s enough, I’m taking her." The worker asked him to wait. Mr D said, "Come on X, let's go." X stood up and took Mr D's hand.
The supervisor intervened, asked Mr D to stop, and explained, "X is okay, she's showing no signs of distress, they are just having a play." Mr D said, "No she has her back to him, she's clearly not looking at him, I don't want her to stay and put her at risk." The supervisor explained to Mr D that the changeover was not happening, it was only a play and that X was showing no signs of distress. X was still holding Mr D's hand with her head down.
Mr D replied, "No I'm taking her," and then started to talk about X not looking at Mr D. The supervisor informed Mr D she was not prepared to talk anymore in front-of X and invited Mr D to step out of the room. Mr D replied, "I'm not leaving her here, I’m not putting her at risk.” Mr D then walked towards the door still holding X’s hand and pushed it open. The supervisor advised Mr D he could possibly be breaching the Orders by taking X. Mr D replied, "I don't care." Mr D and X then left service at 10.40am.
During the above, Mr D did not respond other than to stand up from his kneeling position on the floor. Mr D stayed in this position until Mr D and X left. The supervisor apologized for what just happened. Mr D replied, "It's not your fault," and then asked if he was okay to call his lawyer to which the supervisor said he could.
Once Mr D was off the phone to his lawyer, he sat on the couch and was in tears talking about how much he has missed X. Mr D said that his lawyer would get in contact and that a report would be requested. Mr D felt the nominee being in close proximity to X was a bit intimidating. The supervisor informed Mr D that the CCS did ask Mr D twice to sit on the couch but he refused.”[13]
[13] See Children’s Contact Centre report dated 7 January 2020 at pages 3-4
This was the material before me at the time the parties’ competing applications came on for interim hearing on 11 March 2020. In addition, on the day prior to the hearing, I was provided with Ms A’s second assessment report. As part of the assessment process, Ms A again interviewed X, whom she described as a happy, easily settled, bright and confident child, who easily separated from her mother.
Note worthily, X was described as being avoidant of answering direct questions, from Ms A, in relation to her family. X’s interaction with both her mother /Mr D on the one hand and with her father/Ms G on the other were described in positive terms by Ms A.
As previously indicated, it was not Ms A’s role to determine whether Mr Setchell had been violent towards Ms Batten. Her role was to examine the child and assess her relationship with each of the parties concerned. However, as part of the forensic process, she was not able to overlook the issue of family violence, which necessarily posed a potential threat to X’s well being
Accordingly, the case represented a dilemma for Ms A. She assessed X to have a warm and loving relationship with her father. At the same time, Ms Batten had raised significant protective concerns. This caused Ms A to make alternative recommendations, depending on what findings the court ultimately elected to make. Her recommendations were as follows:
“Should further testing of the evidence by the Court find that X was at risk of harm in her father's care due to violence then Orders be made in line with the mother's proposal. This being for short periods of supervised time to take place between the father and child, at a CCC, with supervision remaining until perceived risk was reduced.
Alternatively, should the Court accept the mother had failed to support the father's relationship with the child, and was to continue to do so over time, then X shift into her father's primary care and spend time with her mother. X's time with her mother initially being weekend only, and then shifting to include mid-week time once X was effectively settled in her father's primary care.”[14]
[14] See updated family report of Ms A at page 17
Due to the urgency of the situation, on 11 March 2020, I delivered brief ex tempore reasons in support of the reinstatement of Mr Setchell’s time with X; the removal of Mr D as a potential handover agent; and fixing an alternative handover location – the Suburb C Police Station – in the event that the CCC was unavailable.
Given the moment of this decision, the ex tempore reasons have been transcribed.[15] I have no reason, on the basis of evidence currently available to me, to consider that my discretion miscarried on 11 March 2020. Again, it is common ground between the parties that the time envisaged in the relevant orders was not facilitated.
[15] See Setchell & Batten (No3) [2020] FCCA 1164
In addition, as is known to all concerned, around the middle of March 2020 the pandemic crisis engulfed Australia. This significant intervening event has influenced what occurred next.

The current applications

On 15 April 2020, the father filed an application in a case, in which he sought the following orders:
“1. That this Application be listed as a matter of urgency.
2. That the trial in these proceedings be expedited, and be heard electronically, if necessary.
3. That the child X born in 2016 live with the Father.
4. That the issue of the child's time with the Mother be deferred until the Mother files and serves affidavit material which satisfies this Honourable Court that she will comply with orders, and in particular, that she will deliver up the child to the Father at the conclusion of each period she has with the child.
5. In the event the Mother fails to deliver up the child to the Father for any period pursuant to any orders made by this Honourable Court:
a. A recovery order issue pursuant to Section 67Q of the Family Law Act 1975;
b. Such recovery order provide a direction to State and Federal Police to recover and deliver the child to the Father forthwith;
c. The child's time with the Mother is thereafter suspended until further order;
d. The Court will be satisfied of the Mother's failure to deliver up the child, upon receipt of an email from the Father's solicitor advising of same.
6. In the alternative to paragraphs 3, 4 and 5 herein:
a. The Mother deliver up the child X born in 2016 to the Father for time with him, in accordance with orders made on 11 March 2020;
b. In the event the Mother fails to deliver up the child for any period pursuant to the orders made on 11 March 2020:
i. A recovery order issue pursuant to Section 67Q of the Family Law Act 1975;
ii. Such recovery order provide a direction to State and Federal Police to recover and deliver the child to the Father forthwith;
iii. The child thereafter live with the Father until further order;
iv. All orders providing for the child to live with, or spend time with, the Mother thereafter be suspended until further order;
v. The court will be satisfied of the Mother’s failure to deliver up the child, upon receipt of an email from the Father’s solicitor advising of same.”

The mother responded to this application on 17 April 2020. She sought orders which can be summarised as follows:
·The father’s time with the child be suspended and in lieu thereof he have electronic communication with the child via WhatsApp.
The relevant applications were listed on 21 April 2020. Slightly over a fortnight prior to the date originally scheduled for the parties’ final hearing. At the time, government mandated social distancing requirements and the directive of the court’s Chief Judge prevented parties coming into the court precinct in circumstances other than those of extreme emergency and even in the event of such emergency prohibited parties remaining for any longer than an hour and a half.
In these circumstances, rightly or wrongly, a decision was made that the final hearing would not proceed. However, I was persuaded that the situation was of sufficient urgency that it required the court’s urgent attention. As a consequence, the following orders were made:
“1.    Further consideration of the matter is adjourned to 8 May 2020 at 10:00am for an interim hearing to proceed by way of Microsoft Teams with one day allocated.
2.     It being anticipated that the morning will be taken up with equal periods of time of examination and cross-examination of the parties with the afternoon to be taken up with evidence from Ms A with the focus to be on the interim issues for the child to maintain her relationship with the father in the current circumstances, including the pandemic circumstances, and in this regard, if the mother wishes to rely on any medical evidence in respect of the child she is file and serve that evidence on or before 1 May 2020.
3.     The hearing dates of 6 & 8 May 2020 be vacated.”
At the time of these orders, each of the parties was legally represented, including Ms Batten. Regrettably, on the day prior to that scheduled for this hearing, Ms Batten’s legal advisor withdrew from the proceedings on the basis that Ms Batten had not been granted legal aid for the hearing.[16]
[16] The solicitor concerned has not filed a Notice of Withdrawal nor has he formally advised the court of this eventuality. Rather, it fell to Ms Batten to inform the court that she was without representation, which was clearly not her preference.

The issues in the case

It is the father’s position that both Ms A’s report and the court’s most recent judgment put the mother on notice that she needed to do more to facilitate X’s relationship with her father than she has currently done and further her constant resistance to the court’s orders was likely to be both counter-productive and potentially liable to lead to an extreme outcome in the case.
In these circumstances, counsel for Mr Setchell has pressed for the interim hearing envisaged to proceed, notwithstanding the fact Ms Batten is not represented and a potentially extremely momentous decision for all concerned, particularly X, will be determined through the not entirely suitable medium of an electronic hearing.
In this context, the central issue for the court is whether a consideration of X’s best interests justify it taking the extreme step of changing X’s longstanding care arrangements and disrupting her primary attachment to her mother in order to ensure that she has some form of relationship with her father, given expert evidence is of the view that this relationship is a positive one for the child.
The dilemma for the court being is it optimal for X that her mother, in effect, should be in a position to veto X having any form of meaningful relationship with her father because of her (Ms Batten’s) attitude towards Mr Setchell.
Ancillary to this issue is a consideration of whether the evidence currently available to the court is of sufficient moment to justify a finding that the mother’s conduct represents actual abuse of X, which is unacceptable for the court to countenance, and what is a proportionate response to the degree of risk so identified.
On the other hand, it is the mother’s position that the father is a violent and controlling person, who represents a poor role model for X, as well as a significant risk to her safety. It is her case that the evidence is unequivocal that she has been the child’s primary carer, since birth and therefore it is axiomatically not in X’s best interests to disrupt this central relationship to her.
The independent children’s lawyer is of the view that the current situation demands a significant intervention from the court in order to ensure that X has some form of relationship with her father. In this context, he proposes that the child be delivered to the father forthwith and spend time with him for a continuous period without any intervening exposure to the mother.
Related to these issues must be some form of consideration of the manner in which the hearing was held and whether it can be considered to constitute a fair trial. In this context, it also needs to be borne in mind that these are interim or provisional proceedings.
On the other hand, given the nature of the orders sought by both Mr Setchell and the independent children’s lawyer, the outcome of the interim hearing necessarily must have significant implications for both the child concerned and each of her parents.

The orders currently sought by the parties

Pursuant to section 68LA of the Family Law Act 1975 the independent children’s lawyer is under a statutory obligation to form an independent view, based on all the evidence available, as to what is the outcome likely to be in the best interest of the child to whom he/she represents. Thereafter, the independent children’s lawyer is required to advocate that view to the court.
It is the submission of counsel for the independent children’s lawyer, Mr Boehm, that during a period of adjournment, which should be set at the court’s discretion, X should spend time with her father for a continuous period, during which she does not interact whatsoever with her mother.
During this period, he seeks an order that Ms Batten undergo a process of reportable therapy with a psychologist, Ms McNichol, whom Mr Kent has nominated at Ms Batten’s expense. The rationale of this therapy is to assist Ms Batten to recognise the benefit of X having a meaningful relationship with her father. In order to facilitate these orders, Mr Boehm seeks the following:
·The delivery of the child to Mr Setchell occur via the court’s child-minding service;
·If the mother fails to deliver the child, as ordered, the police be authorised pursuant to section 67Q of the Act to recover her;
·Ms McNichol be provided with any reasons provided by the court and the reports of Ms A.
Mr Setchell, through his counsel, Ms Cocks, falls in with these proposals and supports them. From his perspective, it is imperative that the child come into his care as a matter of urgency in order to both protect X emotionally and to ensure that her positive relationship with him can be facilitated.
At an earlier stage of proceedings, whilst Ms Batten was still being represented by Mr Clarke, she formally proposed that she would be willing to abide by the court’s orders made on 22 May 2019, as reinforced in the orders of 11 March 2020, for X to spend a period of each weekend, including a fortnightly overnight visit, with her father.
In this context, she proposed that handovers occur at the Suburb C Police Station and, in order to ensure her compliance with such an order, there be a default provision that a recovery order should issue, if she failed to comply with the order, without further reference either to her or the court.
In order to assist her with supporting such a regime, Ms Batten proposed that she consult a psychologist, Dr R. Ms Batten has apparently attended Dr R in the past in connection with an alleged diagnosis of PTSD said to arise from her exposure to family violence emanating from Mr Setchell.
Up to this stage, Ms Batten has not previously provided any report from Dr R and, as a consequence, neither Mr Kent nor Mr Setchell believe that she can be regarded as being unbiased or appropriately qualified to provide the specialised therapy required in this case. Their preference is that Ms Batten attend a family therapist of their choosing. She is Ms Q, a psychologist, who practices in Suburb S.
More significantly, the father and independent children’s lawyer approach Ms Batten’s indication that she is now prepared to facilitate earlier orders with a mixture of incredulity and scepticism. It is their position that Ms Batten has been given ample opportunity in this regard and her behaviour throughout the proceedings to date must be regarded as emotionally abusive of X and so requiring the court’s immediate intervention, notwithstanding the possibility that such an intervention may be open-ended in its operation and perhaps unpredictable in its application.
In the context of the workability of Ms Batten’s proposal, it will be necessary to examine further evidence provided by each of the parties in respect of a handover, which occurred at the Suburb C Police Station on the weekend of 9/10 May 2020, that is part way through this current hearing.

The hearing of 8 May & 13 May 2020

When the truncated interim hearing was scheduled, Ms Batten was legally represented. Her solicitor apparently withdrew on the day prior to the hearing, after arrangements had been made for it to be conducted electronically, via Microsoft Teams, the court’s chosen digital platform.
Notwithstanding the withdrawal of her solicitor, arrangements were made for Ms Batten to attend via her computer and webcam from her home. Counsel for the independent children’s lawyer and Mr Setchell attended from their respective chambers via webcam. Mr Setchell and his solicitor attended from the solicitor’s office. Later, Ms A attended court to give evidence from her office, again via webcam.
The parties were each able to see and hear one another. There was some background noise and some other technical difficulties of a transitory nature. There was much saying of things such as “I did not catch that” or “would you say that again”.
The subtleties of body language, particularly useful in managing misunderstandings and the direction of cross-examination were rendered opaque by the computer screen. More significantly, the medium did not allow for the development of any rapport between the various interlocutors concerned.
As a consequence, we each talked over one another from time to time as a result of an inability to pick up the physical cues of one another. It was easier when the expert witness was asked questions, posed with the precision arising from expertise, by counsel for the father and the independent children’s lawyer. It was difficult for counsel to object expeditiously and efficiently to objections to questions, particularly from Ms Batten.
To say it was a difficult and emotionally laden hearing would be an understatement. Ms Batten presented as emotionally distressed and reactive throughout the case. She indicated, at the outset of the proceedings, that it was impossible for her to conduct them on her own behalf because she would not be able to ask Mr Setchell any questions as she had been the victim of his family violence. On more than one occasion, she told me that she had to leave to vomit.
However, she always returned to her computer and was able to engage with me. It was also my perception that, although she did not agree with the positions put by either Ms Cocks or Mr Boehm, she was aware of the issues in the case. Given her situation and her extreme protestations, I asked her if she wished to adjourn the proceedings – this necessarily being the implication of her statements to me. Counsel for the other parties opposed any adjournment of the proceedings.
In my view, the case and the mother’s presentation in it presented the court with an exquisite dilemma. On the one hand, there could be no doubting that Ms Batten was at an extreme disadvantage in having to conduct her own case. It was also apparent, not only from her behaviour in court, but also throughout the history of the case to date, that she is an extremely emotional person.
On the other hand, the case was obviously urgent and past evidence indicated that, ostensibly at least, Ms Batten had gone to unusual lengths to frustrate court orders in respect of Mr Setchell having an ongoing relationship with X and, significantly, the utilisation of an extreme emotional response, on her part, was part of the mechanisms, which she had used to do so.
In all these circumstances, I was concerned that to adjourn the proceedings may pander to Ms Batten’s approach in the case and so be fundamentally unfair to Mr Setchell and, indeed, prejudicial to X’s best interests. At the end of the day, in addition, I had determined, in difficult circumstances that an interim hearing should be the mechanism adopted by the court to enquire into what was the best outcome for X on a provisional basis, given that her relationship with her father seemed to be in abeyance.
In these circumstances, not without some trepidation, I elected to proceed with the hearing, which took place over most of the sitting day set aside and was thereafter adjourned, for further submissions and, as it turned out, some brief additional evidence, to a further half day hearing on 13 May 2020.
The fundamental obligation of the court is to ensure that the parties to the proceedings have a fair hearing according to law. Parties are entitled to present their cases as they see fit and subject the cases of their opponents to scrutiny through cross examination.
Given the importance of the proper administration of justice to the community as a whole, it is also fundamental that legal hearings be open to public scrutiny and so not occur behind closed doors, unless there is some compelling reason which justifies the closure of the court to groups other than the parties concerned and their legal representatives.
Section 97(1) of the Family Law Act 1975 directs that proceedings under the Act, conducted in the Federal Circuit Court are to occur in open court, although the court, pursuant to section 97(2) does have a discretion to close the court to exclude persons or classes of persons from the court.
Section 97(3) of the Act also directs that the court should proceed without undue formality and ensure that proceedings are not protracted. These provisions recognise the fact that family law proceedings are to be characterised as matters of private law, relating as they do, to issues to do with the care of children and the division of property.
Family law proceedings are frequently emotionally charged for those involved in them, particularly those cases involving the care and safety of children. Notwithstanding the best intentions of the legislature, they remain highly adversarial in nature. Necessarily, the court is often called upon to adjudicate accusations of extraordinary gravity, involving allegations of heinous parental behaviour.
Regrettably, even in such emotionally charged circumstances, there is no guarantee that each of the parties concerned will be legally represented and so have the professional barrier of a trained advocate to protect them from the more extreme emotional aspects of the relevant case and in order to ensure that focus remains on the issues at hand and appropriate and proper questions are asked.
However, the absence of legal representation, in itself cannot be the ground for any permanent stay of proceedings. This would not be fair to any other party concerned, who is legally represented or congruent with the best interests of the child concerned. It axiomatically being in such a child’s interests that parental controversies, particularly those relating to safety, be resolved as soon as is reasonably possible.
Accordingly, in some cases, notwithstanding the potential difficulties pertaining to the process, it remains the court’s responsibility to conduct hearings, whilst aware of the difficulties entailed, including those difficulties arising because a party is unrepresented and, in the current case, the medium available for the hearing itself, is far from optimal.
However, at the same time, the court also has a fundamental obligation to ensure that whatever form the case takes it remains procedurally fair. Procedural fairness dictates that a party to proceedings is entitled to be given the opportunity to present any arguments, which he or she considers vital to the case concerned and is able to test evidence comprehensibly through the process of cross-examination. If a person is deprived of either of these opportunities, the relevant trial cannot be characterised as being a fair one and, as such, would represent an affront to the principles of justice.
The hearing before me was far from optimal. The greatest difficulty being that Ms Batten was not represented and is not of a personal disposition well-suited to having to present her own case. Like many unrepresented persons, it was very difficult for her to formulate precise questions and she was inclined to make statements in respect of what her case was rather than put propositions requiring elaboration to the witness concerned.
More significantly, given the emotionally charged subject matter of the case and the moment of the issue to be canvassed in it – namely, the removal of X from her care – and the fact that her lawyer had only recently withdrawn, it would have been unreasonable to expect her to approach the case with anything approximate to a degree of emotional detachment. Even if Ms Batten is capable of such detachment, in the best of circumstances, which appears doubtful, these most emphatically were not the best of circumstances.
Mr Setchell presented well in the case. He answered questions precisely and clearly. His testimony was not affected by excessive emotion. I felt that I was able to assess his credit through the electronic medium notwithstanding its deficits, which Justice Perram of the Federal Court has described as being “like swimming in aspic”, which respectfully appears to me to be an apposite metaphor.
I believed Mr Setchell’s evidence. He presented as a person who was focussed on X’s best interests not the advancement of his own cause. As such, I accept that he has brought his current extreme application as a last resort and not as an act of vindictiveness against Ms Batten. I reach this conclusion, to a significant degree, as a respect of how he behaved at the disastrous handover, at the Suburb C police station on 16 May, to which I will return in due course.
I accept that he does wish to have a proper and meaningful level of relationship with X because he loves her. He is also a determined person. Others might have been dissuaded from pursing a similar application to his by the ferocity of Ms Batten’s resistance.
From Mr Setchell’s perspective, it is fundamentally wrong, both by him and X that Ms Batten should be able to get her own way by a process of hysterical manipulation, of the court system; the CCC system and most significantly of X herself.
In my view, this is the central issue in the case. The proceedings are not designed to punish Ms Batten for any personal failings on her part, nor to reward Mr Setchell for his persistence, in the face of great obstacles. They must always remain focussed on what is best for X. She is not to be awarded, like a prize, to the more deserving parent.
In this context, her entitlement to enjoy the benefits of having a loving and meaningful relationship, with each of her parents, is one of the central components of how the court assesses her best interests. The question arising being whether the price, in emotional terms, for X of obtaining such an outcome is a price worth paying, in either the short or longer term.
Ms Batten did not present well. I did not find her to be a credible witness. She was certainly hysterical from time to time. She is an emotional person and it seems probable to me that she has become habituated to achieving her preferred outcome by displays of extreme emotion. She would attribute her extreme behaviour to the fact that she has been the victim of Mr Setchell’s violence towards her. I have some significant reservations that this is the case.

However, this central issue in the case was not subject to any direct scrutiny in the case other than Mr Setchell denied it and Ms Batten asserted it. There was scant independent corroboration available. Given the structure of the Family Law Act, I will have to turn to the issue in more detail, notwithstanding this state of affairs and the limited nature of the hearing before me.
However, to some extent, I found some aspects of Ms Batten’s presentation to be overblown. I simply do not believe many of the things she said to me, not only during the current round of hearings but earlier. The question arising being can this adverse finding be attributable in any way to the electronic medium adopted for the hearing with all the implicit difficulties, which I have identified or so be regarded as intrinsically unfair to Ms Batten.
It is for this reason that I have taken some time to identify what I regard as the collateral issues, arising from other documentary sources of evidence arising in the case, which, in my view, also provide a significant basis for me to have doubts about Ms Batten’s credibility. Her presentation, through the electronic medium, did nothing to mitigate the father’s assertion that she is a highly manipulative person, who lacks the insight to understand her behaviour has the potential to be seriously deleterious to X’s emotional wellbeing.
In any event, a balance must be struck, in any proceedings concerning a child, between the interests of a parent in being able to present his/her case to their best advantage and the paramount concern of the court to ensure that the safety and best interests of the child involved are advanced. In certain circumstances, this must entail the court having to conduct a hearing in a setting which is not optimal or even is far from optimal.
In all these circumstances, I am satisfied that it was in X’s best interests that the hearing proceeded in the manner in which it did and that the court now adjudicates the various controversies arising from the father’s application in case as a consequence of the fact that the trial of the matter could not proceed due to the pandemic crisis. Although the hearing was far from perfect, I am satisfied that it was sufficient for its purpose.
In addition, notwithstanding the moment of the issue which is to be determined, it remains an interim or provisional hearing. The Full Court has recognised that, frequently, for pragmatic reasons relating to the need for the court to assess risk, interim hearings must take place in a truncated or shortened form.
This is the case in the present matter. The hearing before me was not the three day hearing originally envisaged, involving the parties and other interested persons each being present in the court room, and all the relevant witnesses being extensively cross-examined so that every nuance of their evidence was readily amenable to scrutiny.
It was, however, a significantly more extensive hearing than that which ordinarily occurs at the interim hearing stage, at which the court is frequently called upon to make potentially momentous decisions, for the parties concerned, on the basis of a consideration of untested affidavit evidence only.
In the present matter, there was some cross-examination and additional oral evidence presented. More significantly, this was a case in which there had been extensive involvement from a family consultant in the family concerned and she was available to provide additional evidence. Accordingly, although the hearing was truncated, it was still reasonably extensive.
In addition, although the orders sought by the father and the independent children’s lawyer are significant in nature, they are not intended to be final in nature and are capable of being reversed. The positions of both Mr Setchell and Mr Kent is that the court should review the arrangements for X’s care, after Ms Batten has engaged with an appropriate therapist, whom they assert should be Ms Q.
If this intervention is successful, Mr Setchell and Mr Kent contend the court will then be in a position to revisit the orders, which they currently seek, if necessary after a final hearing. However, in the interim, they contend that X’s situation, particularly the estrangement of her from her father and the risk she is being subject to emotional abuse, dictate that the urgent mechanism of the hybrid hearing utilised to date be engaged.
In my assessment, although I acknowledge that it is open to being perceived as self-serving, the circumstances of urgency surrounding X justified the court approaching the issues in the manner in which it did, notwithstanding the potential moment of any decision required to be made. It was not appropriate to adjourn the proceedings.

Legal principles applicable

Although I have detailed the applicable legal considerations in previous judgments, it is necessary for me to outline them again. This case is fundamentally about the assessment of risk, within a matrix of considerations provided by section 60CC of the Family Law Act.
The various risks arising can be summarised as possible:
·The risk of X suffering psychological harm as a consequence of her mother’s actions;
·The risk of X losing the benefits of having a meaningful level of relationship with her father;
·The risk arising for X of upsetting, even on a limited basis, her relationship with the parent who has hitherto been her primary provider of care;
·The risk arising for X of being placed in the care of a person who has been categorised as violent and controlling and so may be an inappropriate role model for X or even be a person who may expose the child to some form of abuse;
·The risk of causing Ms Batten some form of harm, by virtue of a precipitate action, which causes her to suffer some form of psychological dysregulation. An outcome which would not be helpful to X, if Ms Batten is ultimately found to be the preferred custodian of X.
The relevant provisions are to be found in Part VII of the Act. In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration [see the Act at section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
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 Act set out in section 60B.
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.”
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.
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.
Abuse, in respect of a child, is defined by section 4(1) of the Act. It means:
“(a) an assault, including a sexual assault, of the child; or
(b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.”
It would seem to be the case that each of the parties rely on this definition, particularly that contained in sub-paragraph (c). The father asserts that the mother has caused X serious psychological harm by manipulating her to make false allegations against him and orchestrating X to experience distress at handovers, which is not congruent with her actual experience of him, which is loving and nurturing.
For her part the mother asserts that X has been exposed to abuse by having been exposed to family violence in her father’s care and because Mr Setchell directly assaulted her [section 4(1)(a)], when he punched her in the eye. Ms Batten was not a witness to this alleged assault but relies on what the child herself has reported and the injury noted by Dr H.
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.”
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;
·stalking;
·repeated derogatory taunts;
·intentionally damaging or destroying property; and
·the withholding of financial support.
Accordingly, family violence means not only violence which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person. Both parties have made allegations, against the other, which fall within the examples listed in sub-section (2).
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”. Again, in section 4AB(4) the legislature has included examples of conduct which may amount to such exposure, which include:
·overhearing threats;
·seeing or hearing an assault;
·comforting or providing assistance to a member of the child’s family, following an assault;
·cleaning up after property has been damaged; and
·being present when police attend an incident involving an assault.
X was a babe in arms when the parties separated. It is beyond the bounds of possibility that she has any recollection of what occurred between her parents when she shared their home with them. Thereafter, she has had limited exposure to the relationship between her parents. She has been exchanged, between her parents, hitherto, in closely managed circumstances.
The mother has alleged that Mr Setchell behaved violently towards her for the outset of the proceedings in 2016. She described him as being angry and aggressive towards her. This behaviour is said to have manifested in the following incidents, which occurred both before and after X’s birth:
·He was cruel and neglectful of her cat;
·He shook her by the shoulders and called her ugly;
·He punched her in the head and pulled her hair;
·As a consequence, she had to seek dental treatment as a consequence of having to bite down hard on her lower teeth;
·He damaged a wall by punching it;
·He hit her phone out of her hand;
·He pulled X from her during an argument.
Ms Batten relies on a dental invoice; some photographs of damaged and patched sections of a wall; some text messages from Mr Setchell in which he apologises for smacking her in the head; a record of a counsellor whom the parties saw during their relationship; and reports made to her antenatal general medical practitioner.
As a consequence of complaints made by Ms Batten, Mr Setchell was charged with assaulting her. She also applied for an intervention order, against Mr Setchell, on 25 August 2016, which was after he had instituted the proceedings, in this court, seeking to spend time with X.
I have not been provided with either the charges or the witness statements provided to police in support of the criminal charges laid against Mr Setchell. He pleaded not guilty to the charges concerned, which were ultimately withdrawn by police.
Ms Batten has deposed that she did not consent to the charges being withdrawn and this action was misguidedly taken by the prosecutor concerned, who was worried about the impact of her having to give evidence in the proceedings against Mr Setchell. No evidence has been provided, from the police to corroborate this assertion.
When the charges were withdrawn against him, Mr Setchell consented to a final intervention order. This intervention order notes that it was made without admission of the facts. Mr Setchell asserts that he consented to the order for pragmatic reasons because he had exhausted his funds as a consequence of contesting the criminal charges against him.
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. 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.”[17]
[17] See Eaby & Speelman (2015) FLC 93-654 at 80,322 [21] per Ryan J
This is the case in the present matter. Ms Batten’s case is that she was the victim of coercive and controlling violence which occurred privately between her and Mr Setchell. If her evidence is correct, Mr Setchell’s behaviour would constitute family violence and, as such, is potentially a significant issue in the case. Violent parents are not appropriate role models, for children, who learn their behaviour and how to deal with difficult situations, from how their parents behave.
Family violence is not homogenous in its qualities and can arise in a variety of contexts. It can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, or it can be more systematic and deliberate arising from a clear power imbalance between the parties concerned.
It is clear to me that the parties’ brief relationship was deeply unsatisfactory from each of their perspectives. It is more difficult to ascertain whether it was one characterised by coercive and controlling behaviour or what violence arose between them occurred because of mutual frustration and discontent relating to their imprudent cohabitation.
There can never be any excuse for violent behaviour. However, the purpose of the relevant legislation is to protect children from its consequences, not to punish its perpetrators. Given the manner in which this case has progressed, it is difficult for the court to characterise the episodes of family violence catalogued by Ms Batten and make precise findings in respect of the allegations made.
As with other aspects of abuse, it is a question of the court endeavouring to assess the relevant level of risk from any particular circumstance arising from the case. In Deiter & Deiter,[18] the Full Court 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, to any individual, particularly any child, who will be potentially affected by it.
[18] See Deiter & Deiter [2011] FamCAFC 82
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.
The Full Court in Slater & Light expressed the task of assessing risk in the following terms:
“The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [19]
[19] Slater & Light [2013] FamCAFC 4 at [37]
The only individuals, likely to know with certainty, whether the father did assault X, by punching her in the eye during that weekend in December 2019, are X herself and Mr Setchell. X is a young child, who is not cognitively nor linguistically mature. Given her age, she could be subject to manipulation or influence. Mr Setchell, unless the injury could be innocently explained, is unlikely to admit to intentionally assaulting X.
In these circumstances, it is not the duty of the court to determine definitively whether the assault did or did not occur. Rather, it must determine the risk of such an incident occurring again and what its implications are likely to be. As indicated above, this must be done by means of an objective assessment of all relevant facts.
If it were done on the basis of a parent’s subjective view alone, it is improbable that this would be a useful exercise because it would almost certainly result in capricious or unfair outcomes. For obvious reasons, a person such as Ms Batten is not in a positon to bring a clear and unbiased mind to the assessment of risk, given how closely she is entwined emotionally in the issues arising in the case.
Overlying these concerns is the fact that allegations of abuse and responding allegations that some manipulation of the child concerned has occurred in order to secure a damaging disclosure about the conduct of a parent, frequently occur in the aftermath of relationship breakdowns where the parents concerned communicate poorly, if at all, because of antipathy and suspicion.
The parties have never ever had a functional parenting relationship. They communicate, at best, through lawyers. They fervently distrust one another, following a brief relationship. Indeed, it is not improbable that they now actively dislike one another. If it were not for X, no doubt each would be content never to see the other again. In such circumstances, the prospect of one party taking some form of concerted action in order to remove the other as an active participant in their own life and by extension in the life of the child concerned cannot be discounted.
For obvious reasons, such circumstances provide fertile ground in which words or actions can be misconceived, misunderstood or indeed be manipulated. Regrettably, it is also not unknown for allegations of abuse to be made for tactical or mischievous reasons. It may be difficult to differentiate between these various scenarios and in some cases there may be a conflation of them.
In the context of sexual abuse, Fogerty J pointed out as follows:
“…courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”[20]
[20] See Per Fogerty J in N & S and the Separate Representative (1996) FLC 92-655 referred to in W & W (abuse allegations: unacceptable risk) (2005) 34 FamLR 129 at [95]
In my view, these comments are apposite to the current matter. The court is required, in assessing risk, to subject the various allegations concerned to some level of careful scrutiny, bearing in mind the consequences of making a wrong assessment – it may possibly result in X not having a proper level of relationship, with her father, on spurious or confected grounds.

There is a family violence order. It is final but was made without a contested hearing or any court making findings of fact in regards to it. Mr Setchell denies that there is any proper factual basis to justify the making of the order. There is no evidence to indicate that it has ever been breached.

The recent evidence

The judgment delivered on 11 March 2020 envisaged X spending time with her father on the following Saturday 14 March 2020, with the mother to deliver the child at the Suburb E CCC, in the absence of Mr D. Thereafter there was to be further time the following weekend. The time did not take place on either occasion. Again, Mr Setchell’s solicitor has obtained a report in regards to the abortive handovers from Ms M.[29]
[29] See affidavit of Ms N filed 8 April 2020
On each occasion, Ms Batten was a little late to the appointment and on her arrival indicated that X would not get out of her car. The relevant worker went out to the car, on 14 March, notwithstanding it was contrary to CCC policy for her to do so. She reported what happened as follows:
“10:15am The supervisor went out to the car. X was sitting in her car seat. A female person was also sitting in the front passenger seat. X looked at the supervisor and then at Ms Batten. The supervisor asked X how she was and asked X if she wanted to come inside. X said something that the supervisor could not hear and so she asked X to repeat it. X looked towards Ms Batten and then back at the supervisor and said, "Daddy punched my eye." The supervisor acknowledged what X had said and asked her how it made her feel. X's replied in a soft voice, "Sad," as she looked down.
The supervisor asked X if she would like to come inside and see her dad. X replied, "No." The supervisor offered X to come in and have a play, X shook her head and looked towards Ms Batten. Ms Batten was telling X if she wants to go in she can. The supervisor asked X if she would like to come in and have a play with her mum. X nodded her head to indicate yes. Ms Batten took X out of the car seat. X walked into the contact centre with Ms Batten and the other female person.”
Other attempts to encourage the child to engage with her father proved futile and the process was called off after about fifteen minutes. Mr Setchell was informed by the supervisor that the handover would not occur “due to X refusing”.
The visit on 21 March 2020 followed a similar pattern. The relevant portion of the report reads as follows:
“Ms Batten returned carrying X who had her head resting on Ms Batten's shoulder. The supervisor greeted X with a broad smile. X did not smile back but said, "Hi," very softly. The supervisor asked, "Are you ready to see Dad?" X shook her head then said softly, "No." The supervisor asked, "Okay, do you want to go say hi to Dad and I'll bring you back to Mum?" X again shook her head and replied, "No." Ms Batten settled X on the floor and remained in close proximity. The supervisor knelt to X's level and thanked her for being brave and coming in. X asked, "Can I play with the toys?" The supervisor said, "Sorry not today." Ms Batten said to X, "Because of the germs." (Noting due to Covid-19 the CCS was not providing toys for children to play with). X leant on Ms Batten's knee as Ms Batten knelt next to her. X buried her face into Ms Batten who gently cuddled her. Ms Batten encouraged X to disclose more and said, "You know you can talk to the lady. You won't get into trouble." X softly said, with her finger on her eye, "Daddy poke my eye." The supervisor acknowledged this and again thanked X for being brave.”
It is Ms Batten’s evidence that the handovers did not occur on “clinician’s advice”, the implication being that the relevant workers concerned did not proceed with the handover because of concerns relating to X’s emotional status. I do not necessarily accept that this is the case. The handover did not occur because X refused to go to her father and the workers concerned did not feel they had the authority to force the issue, given CCC regulations and Ms Batten was not inclined to be more proactive.
The bare words of the report do not convey the emotional tone of the handover or the mother’s body language during it. As such, I concede that it is difficult for me to re-construct, from a distance, what actually happened. However, notwithstanding this difficulty, in my view, it is noteworthy that some three months after the alleged disclosure of the child having suffered a punch to the eye, X repeated these disclosures to the contact centre workers as the apparent pretext for her reluctance to spend time with her father.
In my view, it is also significant that, at the conclusion of the second failed handover, the report notes that Ms Batten encouraged X to disclose more information about her father’s alleged conduct towards her. The passages caused me a significant level of disquiet. On balance, it seems more likely than not that the child’s refusal to separate from her father originated more with the mother than with X.
I am perplexed that, if Ms Batten was genuine in her apparent protestation to the worker that she was caught between a rock and a hard place because of the court order, she was not able to do something of a more proactive nature to support the child separating from her. In all these circumstances, on balance, I am satisfied that there is something significantly lacking in the mother’s parental authority/capacity so far as X is concerned.
Ms Batten may consider that she has ample grounds to feel resentful that Mr Setchell has continually brought her back and back to court. In addition, on a visceral basis, she may perceive that Mr Setchell adds no value to X’s life. Be that as it may, the law is clear on what are the obligations of a parent, who is subject to a time spending order.
In Stevenson v Hughes[30] Fogarty J expressed the duty as follows:
“It is important…that custodians appreciate that they are not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or passive resistance.”
Rather the duty concerned involves active obligations incumbent on a parent to encourage a child to spend ordered time with the parent and if necessary direct the child to attend in compliance with the relevant court order. Positive encouragement and support are what is required not token efforts or the subliminal conveyance to a child that they have a choice to make about time spending and what that choice should be.
[30] Stevenson v Hughes (1993) FLC 92-363 at 79,816
On the evidence available to me, on balance, I do not consider that there is an unacceptable risk that Mr Setchell will assault X in future. I reach this conclusion primarily on the lack of corroborative evidence that such an assault occurred on the weekend of 7 December 2019. No injury was noted on X, when she was returned to the CCC and she was reported by herself to be happy.
I am further concerned that, whenever given the opportunity to do so, X complains of having been assaulted by her father. These complaints arise without any inquiry from the person to whom the complaint is given. As such, there seems no connection between the child’s statements and what is actually happening to her and her apparent mood.
This is particularly so in the context of the process of supervised handover and when Ms A was compiling the second family report, to which I will return when I consider Ms A’s evidence in more detail shortly. In all these circumstances, it seems to me to be more likely than not that Ms Batten approached each of the supervised handovers with the intention that they would fail and utilised X, in some way, to ensure this objective was achieved.
I am fortified in this conclusion by the lack of proactive steps, on her part, to facilitate the handover, particularly any express direction made by her to X that she was to go. Essentially, it seems to me to be more likely than not, that X took her cues, as to what was to happen at the handover, from her mother (and on one occasion at least from Mr D).
I acknowledge that these are findings not lightly to be made. They go directly to the mother’s capacity as a parent. They also fly in the face of the mother’s oral evidence, provided to the court, on 13 May 2020 that she wished X to have a positive relationship with her father and Ms Batten herself was willing to comply with any future orders in this regard. In my assessment, I can have no confidence in these assurances, given Ms Batten’s previous conduct up to this stage.
From 27 March 2020 onwards, due to the Covid19 crisis, the CCC was no longer available for supervised handover. In these circumstances, the default location of the Suburb C Police Station came into play. It is common ground that Ms Batten did not attend, with X, at the police station on either 28 March or 4 April 2020. Ms Batten did not provide any explanation, either to Mr Setchell or his solicitor, as to why she did not attend.
I acknowledge that arrangements for all children, subject to court order, were thrown into uncertainty as a consequence of the pandemic emergency. It was a time of great stress for everyone. Against this background, the father’s solicitor wrote to the mother’s solicitor indicating that her client was sensitive to health requirements relating to social distancing and isolation, which were of particular importance to him because Ms G was expecting their child shortly. Ms Batten did not respond.
It was Ms Batten’s evidence that she did not attend at the police station on medical advice. In this regard, she made reference to the fact that X was diagnosed with Kawasaki disease in 2017. In this context, she deposed as follows:
“I understand that the cause of Kawasaki disease is unknown. As the illness frequently occurs in outbreaks within a population, an infectious agent (such as a virus) is believed to be the likely cause. Given the outbreak of coronavirus my concerns for X’s health have been heightened and I have taken all steps that I consider necessary to protect X for catching the virus or a reoccurence of the Kawasaki disease.”[31]
[31] See mother’s affidavit filed 17 April 2020 at [27]
Ms Batten deposed as to having a belief that there was a serious risk that either Mr Setchell or Ms G might pass the virus onto X. In these circumstances, Ms Batten expressed incredulity that the father would put X’s health at risk by demanding that he spend time with her.
Ms Batten’s assertions, regarding the child’s health and her particular susceptibilities, are not supported by any independent medical evidence. In addition, from my perspective, what is striking about her protestations is the fact that, up until the pandemic crisis, Ms Batten had not done anything, in my view, of a proactive nature, to support X’s relationship with her father.
Finally, in my view, it is also noteworthy that she did not have the courtesy to discuss these issues directly with either Mr Setchell or his legal advisors. Rather, she elected unilaterally to disregard the court’s order. Although I am not in a position to discount the seriousness of the pandemic itself, nor to dismiss the mother’s subjective fears about it, I am concerned that the mother was inclined to seize upon the crisis as a pretext to frustrate Mr Setchell and the court’s order further.
I appreciate that the formalised setting of the witness box may not always provide the best instrument to assess the credibility of any individual witness. As I have already observed, the shortcomings of the adversarial trial, as a means for ascertaining the truth, are likely to be amplified when such a hearing is conducted through the somewhat alienating medium of a fully electronic hearing.
For these reasons, I concede that I must be extremely careful before making an adverse credit finding in respect of Ms Batten. She was unrepresented. No doubt she was nervous, when she gave her evidence. Certainly, she was emotional. The case is of great moment to her personally. It is her position that it was unconscionable that she should be called upon to confront her abuser in the court proceedings and she was unprepared for the case.
However, notwithstanding these factors, when I examine the entirety of the evidence available to me, I am unable to believe her protestations that she wishes X to have a meaningful level of relationship with her father are true. To my mind, the evidence indicates the complete opposite and it is more probable than not that she will do whatever she can, including the emotional manipulation of X to ensure that there is no such relationship for the child.
It is highly probable that the relationship between the parties was highly unsatisfactory, from both their points of view and during it each of them behaved inappropriately. In these circumstances, notwithstanding the lack of corroborative evidence, it is also possible that Mr Setchell, despite his denials, was more culpable than Ms Batten in the creation of this unfortunate state of affairs.
However, be that as it may, it is my view that Ms Batten is inclined to exaggerate and manipulate her evidence to achieve her preferred outcome. I do not assess her to be a credible witness and am of the view that she is inclined to game the system – that is embellish her complaints of misbehaviour against Mr Setchell in an attempt to remove him as a participant in her and X’s lives.
Significantly, in my view, however serious Mr Setchell’s past behaviour towards Ms Batten may have been (and to a large extent, this is unknowable, given the status of the evidence), it is not of sufficient moment to result in Mr Setchell forfeiting his relationship with X given the benefits X has already received and can be anticipated to continue to receive from having a significant relationship with her father.
In this context, Ms A’s evidence is central. She had a significant advantage over me, in these proceedings, in the sense that she was able to observe X interacting directly with each of her parents and so form a visceral impression of what she was like and what was her idiosyncratic disposition. In particular, in drawing her impressions of X, Ms A was not guided by the accounts of either her father or her mother, which are each likely to be affected by some level of subjective bias.
When Ms A spoke with X and observed her with her father and Ms G, X had not interacted with her father for around three months. She presented to Ms A as a happy, easily settled, bright and confident child. During the observed interaction, X easily separated from her mother to engage with Ms A for the purpose of the family assessment.
Ms A reported her initial engagement, with X, in the following terms:
“When X was informed of the purpose of the assessment her response was "Daddy punched my eye". X said this 3 consecutive times; however, she said this with no sign of distress or negative emotion. X was unable to add any contextual information despite multiple, direct questions asked of her.
X shrugged her shoulders and made a non-verbal noise as if to say "I don't know" when asked questions about kindy, her mother's house, and her memories of time spent with her father. It was only towards the end of the play session that X described in a tone consistent with her narrative that she loved kindy and her best friends were U and V, and they loved to play Hide-And-Seek.”[32]
[32] See family report dated 10 March 2020 at [47] - [48]
In her oral evidence, Ms A noted that this disclosure was spontaneous and occurred without the child exhibiting distress or placing the incident in context. In these circumstances, Ms A categorised her disclosure as being a learnt behaviour, which was characterised by her parroting information provided from another source. The only logical inference, regarding the source of this information, is that it came from Ms Batten and she (Ms Batten) wanted X to provide this information to Ms A.
Ms A was undoubtedly of the view that X had a very positive and loving relationship with both her mother and Mr D. As such, it was highly probable that X would look to her mother for guidance as to how she was to respond to any particular situation. In all the circumstances, Ms A accepted that it was likely that X would be tentative, when introduced to her father, for the observed interaction and so it proved to be.
Initially, X avoided eye contact with her father, Ms G and Mr Setchell senior, whilst remaining focussed on her play. She did not initiate any physical contact with her father for the first fifteen minutes of the session, during which Mr D arrived unexpectedly to check on the session. Why he felt the need to do so is unclear to me.
After this period, Ms A observed that X seemed to spontaneously thaw and then warm to her father, who responded sensitively and appropriately to the difficult situation. She described him as being not pushy or overstated in his interaction with the child. Ms A was impressed with the overall quality of the relationship, given the level of interruptions to it. Her assessment of Mr Setchell was that he was a sensitive parent.
It was this aspect of Ms A’s evidence, which I found particularly striking. She deposed that she formed the impression that X was being herself with her father, whom she unquestionably loved. By this I take it that X was able to relax in her father’s care, without expectation as to how she was to behave and what she was to say. Ms A was effusive in her description of the quality of the relationship, which she observed between father and child, describing it as joyous, delightful and a privilege to witness. Overall, Ms A said it was a delightful interaction to observe.
In all these circumstances, given what she was informed of in respect of the progress of the case up to the date of the hearing, Ms A was unequivocal in expressing the view that it would be in X’s best interests for her to live for a period of time, in her father’s sole care, in order to consolidate her relationship with him, whilst Ms Batten attempted to change her outlook on X’s relationship with her father, which Ms A considered Ms Batten was incapable of supporting in any significant way whatsoever. I accept this central recommendation.
In her report, Ms A wrote as follows:
“Without a shift in care X would remain at significant risk of failing to repair her relationship with her father and be in a position to maintain a long term meaningful relationship with her father, as well as a sense of connection with paternal family members. With the information at hand, concern remained as to the mother's genuine ability to support the father's relationship with X. Concern remained as to the effect the mother's attitudes towards the father and her anxieties for X in his care had on her capacity to be effectively attuned to X's needs, observe and interpret X's cues objectively, and put X's needs before her own.”[33]
[33] Ibid at [69]
In her oral evidence, Ms A expanded on these concerns. In particular, Ms A considered that it would not be in X’s best interests to be deprived of the prospect of having a male role model, in the form of her father, as she developed through childhood into adolescence. It would be also potentially damaging, for X, if having lost this seminal relationship, she came to the view that her father and the world in general was a generous place. This might prevent her forming her own secure relationships as she matured.
In addition, Ms A was concerned that if X lost her relationship with her father, she would attribute the loss to some flaw in her own personality and this might lead her to become anxious and, if her anxiety became entrenched, to lead to the development of some form of anxiety disorder, as she grew older. In this context, she was concerned that the child would almost certainly adopt her mother’s flawed view of Mr Setchell, if she was not able to maintain her own currently positive views of him.

Most significantly, Ms A was concerned at the consequences for X if, on the one hand, she was perceived by her mother as being the victim of a person, whom she loved and of whom her experience had been otherwise positive. This cognitive dissonance had the potential to lead the child to have a conflicted narrative in respect of who she was and where she fitted in, again leading to the possibility of emotional difficulties later in life.
Finally, Ms A considered it potentially abusive of X that she had been presented to various experts for the purpose of expressing criticism of her father, whom she loved and enjoyed spending time with. Overall, Ms A did not think it helpful for X’s emotional development that she was called upon to portray herself as a victim, which was not congruent with her experience of her father.
I agree with Ms A’s assessment. I am gravely concerned at the emotionally corrosive consequences, for X, of her having to describe her father as the perpetrator of an assault on her. Given the extremely positive relationship, which Ms A described with Mr Setchell – a relationship which has been maintained notwithstanding very great difficulties – I am of the view that Ms Batten’s conduct does fall within the indicia of abuse as categorised in section 4(1)(c) of the definition of abuse contained in the Act.
In this context, I am satisfied that, if something of an urgent remedial nature is not attempted, X may lose her relationship with her father, which is likely to be extremely detrimental to her in the longer term and, if things remain as they are, there is a significant probability that X’s level of anxiety will increase rather than diminish.
The tenor of Ms A’s evidence is that it would be a significant change for X, if she was moved into her father’s care, even on a temporary basis. Obviously, such a course is not without its perils. However, Ms A characterised X as being a resilient child and her father as being really sensitive to her needs.
Ms A was also impressed at the father and Ms G’s proposals to provide X with some level of continuity, in their home, in the event that she did come into the father’s care. In this regard, Mr Setchell indicated that he would take a month off work and ensure the child remained at her existing childcare centre. In these circumstances, Ms A expressed a view that she was optimistic X would cope with such a change.
The hearing on 8 May finished late in the afternoon. There was no time for any of the parties to make their final submissions. In these circumstances, I elected to make an order that X spend time with her father on the ensuing weekend, with the child to be exchanged between the parties at the Suburb C Police Station.
To a large degree, the order was an experiment to see if there was any truth in Ms Batten’s assertion that she would be proactive in supporting X’s relationship with her father and had taken on-board the evidence provided by Ms A that although she could be considered to be a good mum, she was falling down in her capacity to support X’s relationship with her father.
The case returned to court on 13 May 2020 when each provided their perspective on what had occurred. Once again, it is my finding that Mr Setchell is the more reliable historian as to what occurred. I am satisfied that his evidence regarding Ms Batten is correct. He described Ms Batten as being hysterical and hyper-ventilating during the handover and, as such, precipitated what I can only describe as an emotional debacle for X, which was calculating and designed to draw some form of intervention from any unwary bystander.
In these circumstances, although on the one hand the mother was loudly protesting to X and all who were present that X had to go, on the other hand, she was otherwise winding up the child, in an emotional sense, so this outcome would not be achieved. Ms Batten, once again, did not approach a potentially difficult situation with any degree of equanimity or with the intention of the required interaction being discharged efficiently. Ms Batten’s actions led to the child being, in her phraseology, inconsolable.
Sadly, I am left with the impression Ms Batten wished to create the maximum degree of chaos with a view to precipitating the involvement of any member of the public, who happened to be utilising the police station at the time, to become involved in some way so that the handover would have to be aborted.
In my view, greatly to his credit, Mr Setchell indicated that he had no wish to go ahead with the handover in the circumstances precipitated by Ms Batten but she insisted. In so doing, I am satisfied that, against his own interests, Mr Setchell acted in a child focussed manner. He was calm and measured and acted in a way to minimise the child’s distress.
In contrast, I am satisfied that it was Ms Batten’s intention to make the handover as emotionally fraught as possible and she did so to advance her own agenda, which was to sabotage the court’s order or otherwise make a similar order untenable. In these circumstances, it is amazing that the child did separate and go with her father, who in my assessment, showed maturity and restraint in dealing with the close to impossible situation.
It is further Mr Setchell’s evidence, which I accept, that X quickly settled when she got to his car and the two enjoyed a pleasant time together thereafter. In addition, in order to assuage Ms Batten’s concerns, Mr Setchell sent her a photograph of X, from his home, showing her behaving contentedly. Again, this is child focussed and conciliatory.
In her evidence, Ms Batten indicated that she was unable to control X’s behaviour and, in her view, the child was displaying an emotional response to her father. Given Ms A’s evidence, in my view, it is more probable that the child was displaying an emotional reaction to her mother and her mother’s desire that the handover, if it occurred at all, occurred with the maximum degree of difficulty. In so doing, X’s emotional integrity became a piece of collateral damage, in the achievement of the mother’s overall objectives.

Conclusions

It is untenable that X be subjected again to such an emotionally fraught handover or series of handovers. The court has attempted a range of interventions – all have been frustrated. As the proceedings have proceeded, it is my apprehension that there has been an escalation of difficulties rather than otherwise and Ms Batten has been the instigator of this escalation.
It is equally untenable that X should lose her relationship with her father because of these difficulties and Ms Batten’s conduct. She should not be permitted to dictate whether X does or does not enjoy the benefits of having a relationship with her father, whom, on the basis of Ms A’s evidence, I accept she has a close and loving relationship.
The court cannot stand mutely by in the face of such manipulation. It cannot be in X’s long term best interests that she lose the love of her father, in the early years of her childhood because of the difficulties of handover and/or because of the mother’s implacable opposition to Mr Setchell being involved to the prerequisite degree necessary, in X’s life, to fulfil her best interests through the achievement of a meaningful level of relationship with her father.
More significantly, I am satisfied that the mother’s conduct does amount to serious psychological harm of X. As such, the court is under a proactive duty to protect X from being subjected to such a form of abuse in future [see section 60CC(2)(b)]. The corrosive nature of the abuse and Ms Batten’s lack of insight into the consequences of her conduct and her disregard of court orders generally, to a large degree, forces Mr Setchell and the court’s hand.
The abuse in question is complex and multi-faceted. In broad terms, it arises because the mother is intent on depriving X of the benefits of having a central relationship to which she (X) is entitled [see Family Law Act at section 60B(1)(a) & 60B(2)(a)]. X herself has no personal experience of her father thus. The law dictates that children have a right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together.
The law directs the protective concerns are to be given priority in respect of care arrangements for any child [see section 60CC(2A)]. That is not to discount the importance of children securing the benefits of having a meaningful level of relationship with those who love them, principally their parents, but without discounting the importance of grandparents.
Children derive their sense of identity from interacting with their parents. It is not in X’s best interests that at best she have a stunted or distorted idea of what sort of person her father is or, at worst, no relationship with him at all and this situation comes about at the dictation of one of her parents.
The evidence available to me indicates that Ms Batten is intent on preventing Mr Setchell and X knowing each other, as the law envisages, because of her personal animus for Mr Setchell. Her objective is to be achieved through her distorting the child’s perception of her relationship with her father to X and otherwise manipulating the child’s emotions to this end.
This cannot be justified and is harmful for X, notwithstanding what is the state of the mother’s own personal belief as to whether Mr Setchell is or is not a coercive monster, as she has consistently portrayed in her material. This portrayal can only come from Ms Batten and has the potential to be psychologically corrosive for X, with long term implications for her mental health and capacity to form healthy relationships in future. Fundamentally, it is a view which is not congruent with her own personal experience of her father and is therefore abusive.
This situation, highly regrettably, requires urgent remedial action, which necessarily involves its own significant level of risk because it may, in turn, precipitate any number of potentially uncertain and volatile outcomes. The issue for the court being whether the likely effect on X of changing the long-standing arrangement for her care cannot be justified when her overall best interests are considered [section 60CC(3)(d)].
X loves her mother. If she is moved to her father’s care, it will be disruptive for her and she may have difficulty comprehending why it has occurred and may blame herself for it or otherwise internalise the outcome. Ms Batten is also likely to behave in an extreme and unpredictable fashion.
Ms A assesses X as a resilient child and Mr Setchell and Ms G as sensible and sensitive individuals, who will be able to manage the sequelae of such an outcome. In addition, it is hoped that it will be a temporary measure and, after some therapy, Ms Batten may be safely re-introduced into X’s life.
The difficulty with such a proposition is that it is not known how successful, if at all, Ms Batten’s involvement with Ms Q will be. Certainly, the involvement will not come about with any sense of acquiescence on Ms Batten’s part. She is likely to attend under sufferance and, as such, the therapy may not have its desired objective, in the absence of any proactive commitment to it, on Ms Batten’s part.
There are risks in changing X’s living arrangements, given the volatile parenting relationship between the parties. For the reasons I have provided at some length, I am satisfied that the reasons for this volatility can be sheeted home to Ms Batten’s behaviours and attitudes.
In my assessment, what happened at the most recent handover, at the Suburb C police station, when viewed in the context of the long standing difficulties arising from X separating from her mother, indicate that it is the father who has the greater capacity to supply X’s emotional needs and the greater degree of insight into what are the proper attributes of being an insightful parent [see section 60CC(3)(f) &(i)].
In my view, the risk of changing X’s living arrangements is acceptable in the short to medium term given the alternative is likely to be her relationship with her father will be subject to further vicissitudes and, if Ms Batten is entrusted, either directly or through a proxy, with exchanging the child, she will be exposed to further psychological threat.
More significantly, a change to her father’s care seems to be the best mechanism for the child to have a viable one with her each of her parents, rather than just one, which seems to me to be the likely outcome if she remains in the care of her mother. To have a meaningful relationship with both parents is clearly the best outcome for X and, to my mind, justifies the extreme intervention proposed by the father and supported by the independent children’s lawyer.
In addition, I am satisfied that, difficult as it is likely to be, X has a sufficiently robust relationship with her father and is herself resilient enough to cope with the change of care, if it is carefully managed. In this context, I propose utilising Ms A to manage the transition, at the court’s family dispute resolution centre.
Thereafter, in the period of three or four weeks after the transition, I will direct that Ms A re-engage with the family to see how X and each of her parents are coping. It will also give Ms Batten an opportunity to engage with Ms Q and perhaps for Ms Q to provide a preliminary appraisal of the likely prospects of success of the counselling/therapy proposed for her to provide and the willingness of Ms Batten to engage in it.
These are extremely significant orders. Necessarily they will be controversial. Ms Batten is entitled to seek legal advice in respect of them. Accordingly the date set for the transition will be in approximately fourteen days of the date of these orders.
It is not in the best interests of X that the presumption of equal shared parental responsibility be applied. I am satisfied that there are reasonable grounds to support a finding that X has been subject to abuse. In addition, these are provisional arrangements and it is not appropriate for the presumption to be applied [section 61DA].
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding two hundred and ninety three (293) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate:

Date: 29 May 2020

[2020] FCCA 1365

29 May 2020

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