Backford and Backford and Anor

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

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

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.

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.

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.

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).

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

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…

CaseChat Overview and Summary

In *Backford and Backford and Anor*, the Honourable Justice Hannam of the Family Court of Australia considered an application to reopen proceedings concerning parenting orders. The dispute involved allegations of non-compliance with existing orders and the need to consider further evidence relevant to the children's welfare.

The court was required to determine whether to reopen the proceedings and, if so, on what specific issues. These issues included any contact the mother or children may have had with Mr I and the mother's sisters since 21 September 2015, any overnight stays at the mother's home by persons other than the mother and Mr E after that date, and the circumstances surrounding non-compliance with holiday contact orders for G and H in October 2015.

Justice Hannam reasoned that reopening the proceedings was necessary to address specific, relevant matters that had arisen or required further clarification. The court directed the filing of consolidated and specific affidavits from the parties, including the mother and the wife of the second respondent, Ms Keys, to address the identified issues. Evidence not pertaining to these specific matters was to be excluded.

The proceedings were adjourned for a further hearing of three hours on 26 February 2016, at which time final submissions regarding the further evidence were to be made.

Orders of the court

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.

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.

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.

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).

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

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established