Backford and Backford and Anor

[2016] FamCA 106

FAMILY COURT OF AUSTRALIA

BACKFORD & BACKFORD AND ANOR [2016] FamCA 106

FAMILY LAW – CHILDREN – Interim parenting – Application made during the period in which judgment was reserved – Events since judgment reserved – Best interests of the children  -- short time in which interim parenting orders are to operate – Risk to the children – Likely effect of a change in circumstances – No recovery order made.

Backford & Backford & Anor (No 2) [2015] FamCA 678

Deiter & Deiter [2011] FamCAFC 82

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346; (2007) 26 Fam LR 422

APPLICANT: Mr Backford

FIRST RESPONDENT: Ms Backford

SECOND RESPONDENT: Mr Keys

INDEPENDENT CHILDREN’S LAWYER: Ms Wulf

FILE NUMBER: PAC 5703 of 2012

DATE DELIVERED: 12 February 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 12 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Shearman

SOLICITOR FOR THE APPLICANT: Legal Aid NSW Bankstown Family Law

COUNSEL FOR THE FIRST RESPONDENT: Ms Rebehy

SOLICITOR FOR THE FIRST RESPONDENT: LBK Solicitors

SOLICITOR FOR THE SECOND RESPONDENT: Sarah Bevan Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Benetatos White Solicitors

Orders

1. The proceedings are reopened only with respect to the following issues:

a.Any contact that the mother or children may have had with Mr I since 21 September 2015.

b.Any contact the mother or children may have had with the mother’s sisters since 21 September 2015.

c.Any person other than the mother and Mr E staying overnight at the mother homes after 21 September 2015 and

d.the circumstances leading to the non-compliance with orders with respect to G and H’s time with their mother in the October holidays 2015.

1. The proceedings are listed for further hearing for 3 hours at 10am on 26 February 2016.  It will also be expected that further and final submissions with respect to further evidence be made that day.

1. Mr Backford is to file and serve a single consolidated affidavit by 19 February 2016 to comprise only the relevant parts of his previous affidavits filed 2 February 2016 and 10 February 2016 and evidence in relation to the matter set out in Order 1(d).  Evidence touching upon matters other than those referred to in the previous orders will be struck out.

1. An affidavit is to be filed by the second Respondent’s wife Ms Keys with respect with any conversation she had concerning the matters set out in Order 1(a) – (d).

1. The mother is to file and serve an affidavit in relation to the matters raised in Mr Keys’ affidavit filed 12 February 2016 and Mr Backford’s affidavit filed
   10 February 2016, by 19 February 2016.

THE COURT NOTES

1. Mr Keys relies upon his affidavit filed 11 February 2016 in respect of evidence touching upon matters referred to in Order 1. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Backford & Backford and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5703 of 2012

Mr Backford

Applicant

And

Ms Backford

First Respondent

And

Mr Keys
Second Respondent

REASONS FOR JUDGMENT

1. I am considering today two applications:  one brought by Mr Backford, the first respondent and one of the fathers in the parenting proceedings, which is, in effect, joined by Mr Keys, who is the second respondent and father of the remaining children in the family.  And I also have, in effect, competing interim parenting applications, with the mother seeking a recovery order with respect to two of the children, and applications by each of the fathers for variations in the interim parenting arrangements.

2. The parenting application which is currently reserved involves the five children of the mother and the two fathers.  Due to circumstances beyond the control of the children, they have been separated from one another for most of their lives and lived in three different parts of the state.  At the time that the trial was completed at the end of July and in September 2015 when final submissions were made, the eldest girl, P, lived with her father and his wife, which, at that time, was in the far west of the state.  The two boys lived with their father, Mr Backford, in Sydney. Two other girls, one daughter of each of the fathers, B and C, lived with their mother in Q Town. 

3. The parenting proceedings took place over a number of days in July 2015 and, as I’ve indicated, the submissions with respect to final orders were heard in September 2015. 

4. As is set out in my earlier decision published as Backford & Backford & Anor (No 2)[1] and delivered on 28 July 2015, there were a number of dramatic events and associated change that occurred in the course of the proceedings.  Of particular concern being a matter which gave rise to significant issues of risk of harm to the children in the care of their mother related to the role of a person Mr I who has been a significant figure in the lives of the mother and her sisters and has been present, in some way or another, throughout the children’s lives. 

   [1] [2015] FamCA 678.

5. Indeed, at one point, Mr I lived with the mother and Mr Keys.  It suffices to say that Mr I is a convicted paedophile who, even up until the present, on the mother’s evidence, continues to involve himself with at least one of the mother’s sisters who, herself, has children. The mother and all the parties could be left in no doubt that the risk of harm posed by Mr I is a central issue in these proceedings.  Essentially, the issue of Mr I played such a significant role in the proceedings that I suspended the mother’s time with the children, who she had brought to Sydney with her, in the course of the proceedings, because it became apparent that, up until shortly before the hearing, the mother was continuing to associate with Mr I and failed to appreciate the risk of harm that was posed by him.  In my decision of 28 July 2015, I considered whether to continue the suspension of the mother’s time with the children and the interim arrangements more generally prior to the submissions and then pending judgment. 

6. It is clear from that judgment that a significant, if not deciding, factor at that stage was the evidence of Dr F, the expert in the matter, who considered the issue of the circumstances and, quite frankly, the problems that were presented in each of the parents’ homes. She ultimately recommended that the status quo remain, even though she described this family constellation as a borderline Family and Community Services matter. 

7. The independent children’s lawyer adopted the position at that time and maintained it in final submissions that the status quo should remain, whereas each of the fathers promoted the position at that time and, of course, in final submissions, that orders be made in the terms of they proposed, which involved the children living with each of their respective fathers.

8. In many respects, although there have been some significant events in the meantime, I am now facing a similar set of circumstances and similar considerations to that which I was facing on 28 July 2015.  The significant events that have occurred in the meantime, in summary, are that over the Christmas holidays when B and C, who were living with their mother in Q Town, spent time with their respective fathers, the fathers each retained those children in their respective care. Each of the fathers claim that the children and, in particular, P, informed them that the mother has continued to allow them to come in contact with Mr I or, specifically, on a particular occasion, and her sister R, even though there is a restraint in place prohibiting her from doing so, and also that another person has spent the night at the children’s home with their mother, also contrary to orders.  Each of the fathers who have retained their child in their respective care has now enrolled the children in local schools and the children are each living with their siblings. 

9. The relevant best interest considerations that have to be applied to matters involving interim parenting decisions are those set out in Goode & Goode[2] and the particular relevant matters in this case, which, as I say, in my view, are much the same today as they were on 28 July were set out in that judgment on 28 July.  However, there are three new factors which I must consider. 

   [2] (2006) FLC 93-286; [2006] FamCA 1346; (2007) 26 Fam LR 422.

10. Firstly, the period of time under which the interim orders were to operate in July last year was a matter of months, whereas the period of time in which these orders are to operate on this occasion is two weeks, bearing in mind that I will either deliver my final judgment on 26 February or the proceedings will be re-opened and further evidence will be heard on that date.  The period of time in which the interim arrangements are to operate is a factor of some significance referred to in the case of Deiter & Deiter[3], especially when the children are having to endure difficult circumstances.  In these circumstances, two weeks is obviously a much shorter period than the months that were contemplated on the last occasion. 

    [3] [2011] FamCAFC 82.

11. Secondly, there are now some additional matters of risk.  Although I am unable to make any findings today about the matters that each of the fathers raise in their affidavits in support of their application to re-open the hearing, those affidavits, and, in particular, the mother’s affidavit, indicate that, at the very least, Mr I still does come to Q Town from time to time and is a close associate of the mother’s sister. That sister, although restrained from having contact with her, the mother regarded – or, certainly, at the time of the hearing a few months ago – as a close and supportive and important person to her.  Given the seriousness of the risk of harm posed by Mr I in these proceedings, in my view, even on the mother’s case, that particular factor is one of significance.

12. The third factor is the issue of the likely change in circumstances.  In the previous judgment on 28 July 2015 I had to consider the possibility of further changes in the children’s circumstances at that time.  Since that date, B and C and P have had another change in their circumstances in that P has moved to the coast, a fair distance away from the mother, with her father and B is now living with her father and siblings.  B and C have had yet another change in schools.  Depending upon what happens in the final judgment, if the interim orders were made as sought by the mother, there could be up to two more changes for those children within a period of weeks. 

13. As I have already mentioned in passing, it is most unfortunate that the changes in the children’s circumstances have occurred in the way in which they have and that the fathers have taken unilateral action rather than informing the independent children’s lawyer and having the matter brought before the Court in a more orderly fashion

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 12 February 2016.

Legal Associate: 

Date:  25 February 2016