Backford and Backford and Anor

[2015] FamCA 662

FAMILY COURT OF AUSTRALIA

BACKFORD & BACKFORD & ANOR [2015] FamCA 662

FAMILY LAW – CHILDREN – Application made by mother to spend four hours on a Saturday – Best interests

Family Law Act 1975 (Cth) ss

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: 24 July 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 24 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Shearman

SOLICITOR FOR THE APPLICANT: Ms Seric of Legal Aid NSW Bankstown Family Law

COUNSEL FOR THE FIRST RESPONDENT: Ms Friedlander

SOLICITOR FOR THE FIRST RESPONDENT: Ms Simpson of Duncan Maclean & Associates Pty Ltd

COUNSEL FOR THE SECOND RESPONDENT: Mr Maddox

SOLICITOR FOR THE SECOND RESPONDENT: Ms Donald of Sarah Bevan Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Cook

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Wulf of Benatos White

Orders

1. That orders with respect to spending time with the mother continue to be suspended and the interim orders made on 22 July 2015 continue until 28 July 2015.

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

Respondent

Mr Keys
2^nd Respondent

REASONS FOR JUDGMENT

1. This is an application with respect to four of the five children who are the subject of these parenting proceedings, concerning whether they should spend time with their mother for four hours on Saturday afternoon.

2. The circumstances in which this application arises are a little bit different than a similar application that arose a couple of days ago.  The last application, which arose on the second day of the hearing followed some evidence which, in my view, was very significant evidence in relation to matters which give rise to potentially a risk of harm to two of the children, in particular.  Orders were then put in place in order for two of the children, B and C, who ordinarily live with their mother to spend two nights overnight with their respective fathers and siblings or half-siblings.

3. The parties have agreed that that arrangement, that is, that the children will spend time (including overnight time) with their fathers until this hearing is completed next Tuesday will continue.  The mother has also sought specifically to spend time with the children for four hours on Saturday afternoon in Suburb D, which appears to be the most convenient location between all of the various locations the children are staying.

4. It arose in the context that the mother originally only sought to spend time with the two girls who are living with her but who have been spending time with their fathers in the last couple of days, that is, B and C.  Then the mother consented to a proposal by the Independent Children’s Lawyer that it would be in the children’s best interest for all of them to spend some time with their mother, that is, all four of them.  So this is a slightly different application being an application to spend four hours of time with their mother, than the application made the other day.

5. Even though it is for a short period of time, that is, for four hours on Saturday afternoon, it is of course governed by the best interest considerations.

6. Two days ago when I was facing a similar application, the circumstances highlighted a tension between the considerations of the relationship that the children have with their mother, in particular, the children C and B, and the consideration relating to the protection from harm.

7. The issue of protection from a risk of harm in a general sense still exists.  It has not dissipated because in the main the issues of risk of harm whilst in the care of the mother appear to me, at this stage, without forming any concluded views, to relate to the mother’s judgment and understanding of the potentiality of risk and appreciation of matters that present a risk of harm that she does not seem to see as such.

8. It appears that the greatest concern on the evidence to date so far as the mother is concerned, relates to people the mother chooses to associate herself with or more importantly allows the children to come in contact with.  I have to add, however, that there have been other risks that have been identified in this case that relate to the children’s care and other parents such as the risk of accidental injury which appears on the evidence to arise in Mr Backford’s household.

9. In relation to the other best interest considerations, I do not know what the views of the children are to this application that they spend four hours with their mother on Saturday afternoon.  I do not suggest in any way that they would not want to spend any time with their mother because there appears no doubt that all of them have a close bond with their mother and especially B and C who we are primarily concerned with at this stage because she has been their primary carer, but we do not know at the moment how they feel about spending four hours with her particularly on Saturday and whether this will be more confusing and really what level of benefit it will provide them.

10. The mother presents the case on the basis that, of course, the children will want to see her and that is completely understandable because as she said the other day, and I accept completely that she was being very honest, that the circumstances in which the children came to be spending some nights with their fathers was a shock to her the other day.  Perhaps, in my view, what this is more about on Saturday is giving comfort to the mother in the circumstances in which the girls are currently spending time with their fathers rather than really being for the benefit of the children.

11. I do think it relevant that the mother only sought to spend time with B and C and, in my view, that tends to lend weight to that suggestion that I have just raised that it is more about comforting the mother in circumstances where she was quite shocked by the way in which events have unfolded.

12. It must have also taken the children by surprise.  They came down to Sydney to stay with the mother’s side of the family while the mother was going off to Court and then they were suddenly late in the afternoon or early evening taken to spend time with their fathers.

13. I am not critical of either of the fathers in the way in which it was explained to both B and C about what was happening over the last few days.  The notation that I have written is that the parties are to explain to B and C that they are to have an opportunity to spend time with their respective fathers and siblings from this evening until Friday and there is another part where I have written it is expected that the fathers explain to the children it is an opportunity to spend time with the other children.

14. I think that there is a risk that it will be confusing for the children especially, and I accept the submissions of Ms Shearman, that what they are used to is block time.  These are not children who have had the pattern like some other children do when they are spending time that they spend time with the parent with whom they are not living, where they go and have a couple of hours with the other parent.  It has not been their experience, and for B it will mean another trip down on the train.

15. In my view, I remain of the view that I tentatively expressed earlier that the presence of Mr E (while I do not criticise the mother for wanting to have Mr E with her) will be particularly confusing for B and C.  We know that B refers to two people now as “dad”, she is going to be in the unusual situation where all of that is going to be coalescing at once.  I do not know what the position is with C but she has gone from being with her mother calling another person in her mother’s life “dad” for a few months now being back with her biological father and then spending time with her mother plus the person who she also possibly still calls “dad” all at once.

16. Although I have said that I have some concern that the mother spending time with the children is more about comfort to the mother than for the children, especially as it is only B and C that she made the application for, I agree that she is being sensitive to the fact that the girls were brought down here for a few days for a specific purpose.  She is someone who appears on the evidence does not go anywhere without her children, that was confirmed by her cousin today, and I think that speaks in a positive way to her capacity.  However, in my view, it is strange that she only sought to spend time with C and B and not with the boys, especially when C is currently staying with those brothers in the same household.

17. The period of time we are talking about is four days.  I am aware that all up that will mean that it will be a week from when the children went to spend some time with their father, and the question will arise of what will happen next, but I cannot deal with that now and I cannot use that as a basis for some speculation.  The next step will be clearer because after that we will have the evidence of Dr F.

18. It appears to me, that on the very limited information I have, that C and B have managed in the last couple of days.  I think that the children may have gained the impression in the last few days that all of the parents are more cooperative and flexible than they have previously experienced.  One gets the sense that the children might think that it has been a bit of an adventure.  I think C going to school without being enrolled, (that (enrolling) would have been clearly inappropriate), but having the opportunity to go along was quite a creative way of dealing with the situation.  It was certainly more child focused than getting a carer to come in and look after C while the boys went off to school.  For B it was an opportunity for her to spend some time with her half-sister and a grandmother figure in her life.  I agree that there is the potential that they may already be a bit confused but I think four hours may be more confusing.  It is only for a short time and, in my view, there is only marginal benefit to be gained.  I think if anything the greatest benefit would be for G and H because they do not see their mother very regularly, but in circumstances where the mother only sought to be initially with the other two children I think there is too much potential for confusion. In my view, it is in the best interest of the children for the current suspension of orders to remain in place until next Tuesday.

19. For these Reasons, I make an order to that effect being that that the orders with respect to spending time with the mother continue to be suspended and the interim orders made on 22 July 2015 continue until 28 July 2015.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 24 July 2015.

Associate: 

Date:  14 August 2015