Backford and Backford and Anor (No 2)

[2016] FamCA 206

FAMILY COURT OF AUSTRALIA

BACKFORD & BACKFORD AND ANOR (NO 2) [2016] FamCA 206

FAMILY LAW – CHILDREN - With whom a child lives – With whom a child spends time – Parental responsibility – Best interests of the children – Proceedings involving five children and three households – Where the proceedings were reopened after judgment was reserved – Unacceptable risk of harm posed by a child sex offender associated with the mother – Proposals to mitigate risk – Benefit of a meaningful relationship – Need to protect the children from harm, particularly harm from being subjected to sexual abuse – Nature of the children’s relationships with the parents and each other – Significant practical difficulty involved in spending time with the other parent – Concerns about each of the parent’s capacities – Aboriginal culture – Orders least likely to lead to further proceedings – Best interests of the children for the fathers to hold sole parental responsibility.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAC

Backford & Backford & Anor (No 2) [2015] FamCA 678
Deiter & Deiter [2011] FamCAFC 82
G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
M v M (1988) 166 CLR 69; [1988] HCA 68
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
R v WKD and R v MJN [2005] NSWSC 694

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: 1 April 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 20, 21, 22, 23, 24, 27 & 28 July 2015, 21 September 2015 & 12 & 26 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Shearman

SOLICITOR FOR THE APPLICANT: Legal Aid NSW Bankstown Family Law

COUNSEL FOR THE FIRST RESPONDENT: Ms Friedlander

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

COUNSEL FOR THE SECOND RESPONDENT: Mr Maddox

SOLICITOR FOR THE SECOND RESPONDENT: Ms J Bevan Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Cook

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Benetatos White

Orders

1. All previous Orders in respect of P born … 2004 (“P”), B born … 2005 (“B”), G born … 2007 (“G”), C born … 2008 (“C”) and H born … 2009 (“H”) (“the children”) are discharged.

2. Mr Keys (“Mr Keys”) is to have sole parental responsibility for the children P and B.

3. Mr Backford (“Mr Backford”) is to have sole parental responsibility for the children G, C and H.

4. The children P and B are to live with Mr Keys.

5. The children G, C and H are to live with Mr Backford.

6. The children P and B are to spend time with the mother as agreed between the mother and Mr Keys, or failing agreement every third weekend for three (3) hours on a day and time as agreed, or failing agreement on a Saturday at 12:00pm, commencing the weekend of 9 April 2016.

7. The children G, C and H are to spend time with the mother as agreed between the mother and Mr Backford, or failing agreement every third weekend for three (3) hours, on a day and time as agreed, or failing agreement on a Sunday at 12:00pm, commencing the weekend of 9 April 2016.

8. For the purposes of changeover the mother is to collect the children from the relevant father’s residence at the commencement of her time and return the children to the father’s residence at the conclusion of her time unless otherwise agreed between the mother and relevant father.

9. The mother is at liberty to communicate by telephone with the children when they are in the care of the other parent twice per week.

10. Each of the parents is to facilitate any reasonable request by the children to have telephone communication with their siblings or other parent.

11. Each of the parents is to advise the other parent in writing of any change of telephone number or residential address within 48 hours.

12. Each of the parents are to ensure that the other parent is promptly advised of any medical emergencies or serious illnesses suffered by one of the children whilst in their care which includes providing information to the other parent about the child’s treatment, treating doctor and hospital attendance.

13. Within 14 days of the children’s enrolment at any school, Mr Keys and Mr Backford are to do all acts and things and give all irrevocable authorities to ensure that whichever school the children may attend from time to time is authorised to forward directly to the mother copies of each child’s school reports and merit cards, any written material pertaining to each child’s academic and extra-curricular activities and order forms for school photographs for the children.

14. The mother is restrained from allowing or permitting the children to come into contact with Mr I born … 1941 at any time.

15. Each of the parents are restrained from physically disciplining the children and are restrained from allowing any other person to physically discipline the children.

16. The mother is restrained from leaving the children in the care of any other person when the children are spending time with her pursuant to these orders.

17. The mother is restrained from consuming alcohol while any of the children are in her care.

18. Each of the parents shall ensure that they do not say unkind or hurtful things about the other parent in the presence or hearing of the children and will use their best efforts to ensure that no person says unkind or hurtful things about the other parent in the presence or hearing of the children.

19. Within seven (7) days of these orders Mr Keys is to attend upon a general practitioner to obtain treatment or a referral to a suitably qualified professional for B to assist her in the transition to living with her father.

20. Mr Keys is to follow the advice and recommendations made by the general practitioner or other suitably qualified professional in accordance with Order 19.

21. Within seven (7) days of these orders Mr Backford is to attend upon a general practitioner to obtain treatment or a referral to a suitably qualified professional for C to assist her in the transition to living with her father.

22. Mr Backford is to follow the advice and recommendations made by the general practitioner or other suitably qualified professional in accordance with Order 21.

23. Mr Keys is authorised to apply to the Registrar of Births, Deaths and Marriages NSW that the child registered as B born … 2005 be now registered as B Keys.

24. Pursuant to s 28(5) of the Births Deaths and Marriages Registration Act 1995 (NSW), the Registrar register B’s name in the form specified in order 23.

25. Pursuant to Section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a party contravenes these Orders are included in these Orders, annexed hereto.

26. All outstanding applications and cross-applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Backford & Backford & Keys 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

Introduction

1. Five young siblings have been separated for a number of years.  Each of them -  P who is 12, B, who is 10, G, who is eight, C, who is seven and H, who is six have the same mother, Ms Backford (“the mother”).

2. At the time of the first part of the proceedings in July 2015 the children lived in three different parts of the State, in three different households.  P lived with her father, Mr Keys (“Mr Keys”), her stepmother Ms Keys and half-sister S in a town in north western New South Wales.  B, whose father is also Mr Keys, lived with her mother and half-sister, C and their mother’s partner, Mr E, in a town in northern New South Wales.  G and H lived with their father, Mr Backford (“Mr Backford”) in Sydney.

3. After six days of hearing in July 2015 and submissions made in September 2015 judgment was reserved.  B and C continued to live with their mother and spent school holiday time with their respective fathers. 

4. In November 2015 Mr Keys and his family including P relocated to the Central Coast. 

5. Over the Christmas holidays B was spending time with her father on the Central Coast and C was spending time with her father in Sydney when their care arrangements changed.  Both Mr Keys and Mr Backford became concerned about a risk to the well-being of the children in the care of their mother.  Mr Keys retained B in his care and Mr Backford retained C in his care.

6. An application made by Mr Backford to reopen the proceedings to admit further evidence was granted on 12 February 2016.  On this date the interim orders that B and C live with their mother were suspended and orders were made that these children live with their respective fathers until the proceedings were reopened, and pending delivery of this judgment.

7. Each of the fathers respectively seek orders for sole parental responsibility of their children and that their children live with each of them and spend defined time with the mother and siblings. Mr Backford proposes that he continue to reside with his children in Sydney.  Mr Keys proposed at the completion of the proceedings that P and B continue to live with him on the Central Coast.  The mother proposes that B and C return to live with her in Q Town.

8. In the course of the first part of the hearing another possible parenting arrangement arose, as the mother said that she would be prepared to move to the Sydney or Central Coast area.  If she were to move and the orders she seeks were made, C and B would be able to spend more time with their respective fathers and other siblings. Under this alternate proposal, in the event that the orders sought by each of the fathers were made, the children would also be able to spend more regular time with their mother and their other siblings.

9. The Independent Children’s Lawyer (ICL) initially supported a continuation of the status quo at the completion of the first part of the final hearing, that the children remain in three different households.  At the completion of the entire evidence, the ICL’s position was that if the mother were to remain living in Q Town there would be an unacceptable risk of harm to B and C in their mother’s care, though the risk would not arise if the mother were to move to Sydney or the Central Coast.

10. There is no dispute about where P, G and H should live, as the mother agrees that it is these children’s best interest to remaining living where they are.  However, there is a dispute about where B and C are to live, as the mother proposes orders that would see them returned to live with her.  There is also a dispute about the arrangements for all of the children to spend time with their mother and with respect to parental responsibility.

11. I am required to make parenting orders which best meet the children’s best interests.

Background

1. The mother and Mr Keys, who are each 31 years old, met in 2002 when they went to school together in T Town in north-western New South Wales. Each of them is of Aboriginal heritage, but only the mother identifies as such.

2. After the mother completed high school and Mr Keys left school to undertake vocational study, their first child, P was born, in 2004. The parents were then living in U Town, the mother’s home town. The mother had the primary care of P and Mr Keys also had some involvement in her care.

3. The mother and Mr Keys separated for about six months from around mid-2004, but then reconciled.

4. In 2005 the mother, Mr Keys and P lived for some time in U Town together with Mr I, (“Mr I”) a close friend of the mother’s extended family. Mr I was subsequently convicted for child sex offences and the issue of the risk posed by him is dealt with later in these Reasons.

5. B, the second child, was born in 2005 and the family continued to live with Mr I in U Town.

6. The mother and Mr Keys separated in about February 2006 when B was six months old, and P was two. Mr Keys moved to V Town, another north-western New South Wales town about 100km from U Town. The mother initially remained living with Mr I and the two children in U Town.

7. Subsequently, Mr Keys came to U Town and took P into his care. The circumstances in which this occurred is a matter of dispute between the parties, but there is no dispute that the mother took no steps to have P returned to her care.  It is also not in dispute that Mr Keys left B in the care of the mother and took no further action for some years to develop a relationship with B.

8. At some time in 2006, Mr Backford and the mother, who had met online, commenced a relationship. In October Mr Backford moved to U Town to live with the mother in the home she shared with B and Mr I.  Mr Backford became a father figure for B.

9. In January 2007, the mother, Mr Backford and B moved to Sydney.

10. In about March 2007 Mr Keys moved with P to Queensland.

11. Mr Keys and the mother remained in intermittent telephone contact. It seems that they lost contact however in around early 2007 and Mr Keys only became aware through a family member that the mother had moved to Sydney with B and Mr Backford.  From at least mid-2007 Mr Keys did not have any contact with B and the mother did not have any contact with P.

12. In 2007 the mother and Mr Backford were married in Sydney.  B’s birth was registered with the surname “Backford” at around the same time.

13. In 2007 the first child of the mother and Mr Backford, G, was born.

14. In January 2008, Mr I indecently assaulted one of the mother’s nieces in U Town. He pleaded guilty to this offence, was convicted and sentenced to 12 months imprisonment. On appeal the conviction was confirmed.

15. In 2008, the second child of Mr Backford and the mother, C, was born.

16. In 2009 Mr Keys moved back to north-western NSW with P.

17. In 2009 the third child of Mr Backford and the mother, a boy named H, was born.

18. In December 2009, Mr Keys met his wife Ms W on an online dating site.  Ms W was then 18 and lived on the Central Coast.

19. In January 2010, Ms W came to T Town and stayed with Mr Keys for two and a half weeks, then moved to live with Mr Keys permanently. P at this stage had just turned six and began referring to Ms W as “mum”.

20. In December 2011 the mother who was still living in Sydney with Mr Backford apparently became aware that Mr Keys and P were living in T Town. The mother also says that she was informed that P was being neglected in Mr Keys’ care. The mother travelled to T Town, attended the local school and attempted to remove P.  The mother’s allegation that P was being neglected in the care of her father is a matter of dispute dealt with later in these Reasons

21. In April 2012 the mother left Mr Backford and the children on two occasions. On the first occasion she stayed away overnight and on the next occasion went with B, G and C to U Town and left H with Mr Backford for one or two weeks.

22. In June 2012 the mother and Mr Backford had an argument which precipitated their final separation. The mother left the house with B and C and left G and H in the care of Mr Backford. Two days later the mother and Mr Backford reached an agreement that this would be the ongoing parenting arrangement in relation to their children.

23. The mother then moved with B and C to U Town to live near her extended family. U Town is approximately a 30 minute drive from T Town.

24. In July 2012, when the mother moved with B and C to U Town, Mr Keys re-established contact with the mother. Mr Keys informed the mother that P played netball on Saturdays in U Town and suggested that she and B come to watch the game. The mother did this from around August 2012. Shortly after, the mother suggested that Mr Keys have B for the night and B went home with him and spent the night with his family for the first occasion since the parents separated when B was a few months old.

25. The mother travelled to Sydney in November and December 2012 to allow B and C to spend some time with their brothers and Mr Backford.

26. On 19 December 2012, Mr Backford commenced family law proceedings in the Federal Magistrates Court, as it then was.

27. On 18 February 2013 orders were made with the consent of the parties that P live with Mr Keys, B and C live with the mother and G and H live with Mr Backford. P and B were to spend alternate weekends together, alternating between their parents’ homes. Other orders were made for the children to spend time together and with the non-residential parent during school holidays.

28. The children spent time together and with the non-residential parent roughly in accordance with the orders during school holidays in 2013.

29. In November 2013 a psychologist, Dr F, interviewed the family members for the purposes of a Family Report.  Her report dated 9 December 2013 which was released the following day raises matters of concern in relation to the care of the children in each of the households.  Dr F’s overall recommendations at that time were that the mother and the fathers assume joint parental responsibility for each of their respective children and that unless further evidence were to come before the court, the then current arrangements for where the children live and how much time they spend with the other parent continue. 

30. In January 2014, when P was spending time with her mother in U Town, one of the mother’s sisters (Ms M) assaulted P by slapping her on the head and face causing swelling, bruising and a cut lip.  An Apprehended Violence Order was sought for P’s protection.

31. In 2014 Mr Keys married his partner Ms W (“Ms Keys”).  Ms Keys also has aboriginal ancestry but does not identify as Aboriginal.  Mr & Ms Keys continued to live with P in T Town.  In May 2014 Mr and Ms Keys had a daughter, S.

32. In June 2014 the mother’s niece (who had been the victim of the sexual assault perpetrated by Mr I) was sexually assaulted at that child’s home in U Town where the mother, B and C were staying overnight.

33. The children continued to spend time together as siblings and with the non-residential parent in the April, July and September 2014 school holidays.

34. On around 18 November 2014 the mother began a relationship with Mr E (“Mr E”), a person she had known since high school.  Mr E was at that time living in Q Town following his release from prison in June 2014 having served a 12 year sentence for manslaughter.  Mr E’s previous violent conduct and the mother’s knowledge of it is a matter of dispute dealt with later in these Reasons.

35. On 25 November 2014, a week after this relationship started, the mother moved to Q Town with B and C and began living with Mr E. The mother did not inform either Mr Keys or Mr Backford of this move or provide either of them with the children’s current address or school details.

36. In December 2014 Mr Backford did not make G and H available to spend time with their mother in the Christmas school holidays. Mr Keys also refused to make P available in this period and the mother did not make B and C available to spend time with their fathers.

37. In January 2015 the mother enrolled B and C in school in Q Town. In the same month she was charged with drink driving and driving with unrestrained child passengers. She was subsequently convicted and her license was disqualified.

38. In the April 2015 school holidays the mother did not make B available to spend time with her father and did not request to spend time with P. C did not spend time with her father during this period and G and H did not spend time with their mother.

39. On 28 May 2015 the mother left B and C with her sister Ms N and Ms N’s partner Mr E (Mr E’s brother), when she and Mr E went to U Town for the day.  Mr I, who is a close associate of Ms N arrived at Ms N’s home when the children were there. 

40. After staying with Ms N, C complained to her mother of “pain in her vagina”.  On 31 May 2015 the mother presented C to hospital with fevers and she was diagnosed with pneumonia.  A urine test found blood in C’s urine and the mother became concerned due to the recent contact with Mr I and reported her concerns to hospital staff. Mr I was also present with the family in the Emergency Department, having been brought to the hospital by another of the mother’s sisters, Ms Y. 

1. A notification was made by a staff member at the hospital that C may be at a risk of harm.  Community Services records indicate that the complaint was “[s]creened in [by the Department] for suspicious indicators of sexual abuse”. Mr Keys and Mr Backford were unaware at the time that C and B had been brought into contact with Mr I.

2. In June/July 2015 school holidays G and H spent time with the mother and C and B in Q Town. P also spent time with her mother during this period and B spent time with P and her father in the following week.

3. In the course of the proceedings in July 2015 details concerning Mr I’s criminal history, evidence of the contact between C and B and Mr I, and C’s presentation at hospital in May 2015 came to light for the first time.  The mother had brought B and C to Sydney with her during the proceedings.  Following this evidence being adduced on the second day of the hearing, I suspended the current parenting orders and made orders placing the children in the care of their respective fathers. These orders were extended until the end of the proceedings a week later.

4. On 28 July 2015 following the completion of the evidence I delivered a judgment with respect to the interim arrangements pending final orders.[1]  It was anticipated that this interim arrangement may continue for a matter of months, as final submissions were not to be made until 21 September 2015 and thereafter the judgment would be reserved.  Included in the interim orders were restraints on the mother from allowing the children to come into contact with Mr I and certain named relatives including her sister Ms N.

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

5. On 21 September 2015, final submissions were made and the judgment was reserved.

6. G and H did not spend time with the mother in the October 2015 school holidays in accordance with the orders as the mother claims there was a lack of clarity about the changeover arrangements.

7. All of the children spent time with the mother in Q Town during the first part of the Christmas school holidays at the end of 2015 in accordance with the orders.  Mr Backford and Mr Keys contend that the children were brought into contact with Mr I and Ms N at this time although they were unaware of this contact until early January 2016.  C subsequently spent time with her father Mr Backford, and B spent time with her father, Mr Keys in the holiday period in January 2016.  The fathers each say that they became aware that the children had been brought into contact with Ms N and Mr I when they were living with their mother after September 2015 and both decided to retain B and C in their respective care.  B and C were not returned to their mother at the end of the Christmas holidays. The issue of alleged contact with Mr I and Ms N during this period is dealt with later in these Reasons.

8. Subsequently, Mr Backford made application to reopen the proceedings to adduce further evidence in relation to the issue of contact with Mr I and Ms N.  Mr Keys supported this application and also sought to adduce further evidence about another person staying at the mother’s home during the adjourned period. This application was granted.

9. By the time the proceedings were reopened in late February 2016 Mr Keys had relocated to the Central Coast with his wife and family including B.  C by this stage was living with Mr Backford and her brothers in Sydney.  The mother remained living in Q Town with Mr E.  The orders providing for C and B to live with their mother were suspended, pending further order.

Mr Keys

1. Mr Keys is 30 years old.  Apart from some short periods of time where he has worked elsewhere, he had resided in the northwest of New South Wales, primarily in T Town until the end of 2015. As noted, he is of Aboriginal heritage but does not identify as Aboriginal. He formed a relationship with the mother when they were at school together and left school in year 11 to train for an apprenticeship. He has been consistently employed, generally as a tradesman, since this date, though at the time of the resumed hearing was looking for work on the Central Coast.

2. Mr Keys and his wife, their young daughter and P lived on the Central Coast at the time of the completion of the hearing.  By this stage B also lived with him and his family on an interim basis.

3. Mr Keys has extended family in T Town including parents and grandparents.

Allegations of Mr Keys’ neglect of P

1. As outlined earlier, Mr Keys assumed the care of P in 2006 when she was two years old.  He took P to live in Queensland with him for some time and moved back to T Town in 2009.  Later that year he met Ms Keys online and she came to live with him in T Town in January 2010.  Ms Keys then assumed a role in the care of P.

2. The mother says in her affidavit that in 2011 concerns were raised about P (who was then almost seven) at her school.  The mother says that she heard from her (unnamed) aunt, a youth worker, and “community members in T Town” that P was being neglected.  She says that a cousin, Ms Z, who was a youth worker, told her that P was getting food from bins and eating it and when asked why this occurred, P is reported as having said that her father and his partner did not feed her enough. The mother says Ms Z also told her that P reported that she was always hungry and that if she was naughty she had to sleep without a pillow or bedding which made her upset and cold at night.

3. Although these proceedings do not concern the living arrangements for P, as the parties agree she should continue to live with Mr Keys, any limitations in Mr Keys’ parenting capacity or harm that may result from neglect is relevant to his capacity to care for B and other parenting issues to be determined in these proceedings.

4. Mr Keys was cross-examined about the circumstances in which the mother turned up at P’s school in December 2011 after having no contact with P for over four years.  He says that the teachers did not allow the mother to take P from the school which caused the mother to become abusive and P to become upset.  No records from the school relating to this incident or the allegations of neglect at this time were tendered.

5. On 3 January 2012, Mr Keys says police came to his home and carried out a welfare check of P. Mr Keys says that one of the female police officers took P for a drive, spoke to her privately and returned her, telling Mr Keys that they had no concern about P’s welfare.  No police records in relation to this period were tendered.

6. Dr F is critical of Mr Keys’ parenting capacity at around this time. She says in her report

   The subpoenaed material would suggest that certainly until the end of 2011 there was probably some chronic low grade neglect of [P] in [Mr Keys’] care and some school attendance issues. Some of [P’s] behaviour at the time, for example scavenging, lying and stealing, is consistent with a child who has experienced some emotional and physical neglect. [Mr Keys] referred to being proactive to addressing the issues with the school, but a different picture of [P’s] life with her father was presented by the police officer who attended at [Mr Keys’] house in January 2012.

7. Mr Keys was cross-examined about a heavily redacted record from Community Services which was tendered in the proceedings.  Although the identity of the reporter to Community Services is unknown, the mother told Dr F that she had complained to Community Services about Mr Keys’ neglect of P at this time.  The mother also complains in her trial affidavit that people had failed P, as prior to the mothers’ action, no complaint about the neglect had been made to Community Services.  Although it is difficult to gain a complete understanding of the document due to the redacted text, it suffices to say it contains a hearsay record of complaints made that P was being neglected and teased at school “ because she stinks”.  The record also says, “the [school] principal indicated that occasionally the child will turn up without lunch or inadequate lunch, and occasionally she will turn up in dirty clothes”.  The principal is recorded as describing these issues as “chronic but low-key” and previously thought they did not warrant referral to Community Services. 

8. Documents produced by the Department of Family and Community Services refer to some concerning later notifications made in October 2013 alleging that P was being psychologically harmed by excessive physical discipline at home including being “flogged” with a belt or whip and being given insufficient food.  Under cross-examination Mr Keys denied that he had hit P with a belt or whip, though he agreed he had smacked her on the hand. Although it appears that the notification was “screened in” by Community Services it does not appear that any action was taken by the Department. 

9. The Community Services records also indicate that there were concerns about P’s school attendance and behaviour in around August 2014.  It is recorded that the school principal stated that [at an unspecified time] the father had “treated the child like crap, locked all the food cupboards, and was given bare essentials for lunch.”  It is also recorded that the principal said “that these [August 2014] allegations did not surprise him” as they sounded similar to the way in which P had been treated “when she first lived here with the father”. 

10. Under cross-examination Mr Keys denied ever having been spoken to about P being neglected.  He denied providing insufficient food and dressing P in clothes that were old and ragged but agreed her clothes were not brand new.  He said that he did not send her to school in dirty and stained clothes and denied that she had poor personal hygiene.  He did agree that he was aware that other children were teasing P but denied that anyone brought it to his attention that it was related to her personal hygiene.  The father also said that he did not send P to school without lunch, but agreed the school had contacted him claiming that he had not provided lunch.  He said he had provided lunch on these occasions but P had thrown it in the bin on the way to school.

11. It is difficult to make a positive finding that P was neglected by her father at times between late 2011 and mid-2014.  The source of the complaints appears to be unnamed community members and the school principal who is not on affidavit and was not cross-examined.  Comments attributed to the principal and others appear in some records to be first and second hand hearsay.  The ultimate source of the complaints to Community Services may well be the mother herself.  There are no documents from the school or police to corroborate either the allegations or Mr Keys’ denial that he neglected P, though I note and attach some weight to Dr F’s impression from the documents she had seen that P had been neglected. 

12. Despite the deficiencies I am satisfied on the available evidence that there was a level of low grade but chronic neglect of P in the care of the father and Ms Keys over a period of years.  In forming this view I attach some weight to the fact that the school principal had some concerns but they were not sufficiently serious for him to contact Community Services.  It also appears that Community Services itself took no further action as a result of any of the notifications.  

13. I am also satisfied on the basis of school records, and as it is not in dispute between the parties, that P also was exhibiting behavioural difficulties at school and home in around the second half of 2014 such as lying, swearing and stealing.  Mr Keys was aware of this behaviour as it had been brought to his attention by the school and it was also evident at home.  On one occasion when P was questioned about her behaviour by school staff she cried and said “it is because of who I live with”.  It is to be remembered that at this stage P’s step mother and father were recently married and had a young baby in the home, that the mother was forming a relationship with Mr E and that earlier in the year P had been assaulted by one of the mother’s sisters.  In other words, in my view, P had many issues in both of her parent’s households to contend with, which may provide an explanation for her behaviour during this period.  I am unable to make a finding that shortcomings in Mr Keys’ care of P were the cause or only cause of these behavioural problems.

Mr Keys’ relationship with B

1. Dr F’s other main concern with respect to Mr Keys relates to his relationship with B and effective abandonment of her at six months of age, a critical age of development.  In the first part of the proceedings in July 2015, Dr F said that Mr Keys’ proposal that B come into his care demonstrated little insight into how this would impact on B and his family’s system and she questioned whether he had the emotional capacity to attend to B’s emotional needs given his past parenting of P.

2. Dr F opined that Mr Keys’ proposal to move to the Central Coast at the time of her assessment would not “be a child focused move”.  At the time Mr Keys was living in T Town which is approximately 30 minutes’ drive from U Town where B was living with her mother.  At the time of the first part of the trial in July 2015, B had been moved by her mother to Q Town, a three and a half hour drive from Mr Keys. Mr Keys then said he had been considering a move to the Central Coast for a number of years but had not identified a particular town, had no accommodation or a job, but intended moving in any event. 

3. By the time the proceedings resumed for further hearing in February 2016, Mr Keys had moved with his family to the Central Coast and B was in his care.  As a result of the move B and P live a slightly greater distance from their mother than at the commencement of the proceedings.  There is no evidence of any steps Mr Keys had taken to provide therapeutic support to assist B in managing her separation from her mother and integration into his household. I am satisfied on the basis of Mr Keys’ own evidence and Dr F’s assessment that he has some limitations in his insight about the impact of his actions on his children.

Other matters relating to Mr Keys’ parenting capacity

1. The mother also raises issues of family violence, Mr Keys’ past criminal activity and drug misuse and his alleged incapacity to promote the children’s cultural needs, that arise by virtue of their aboriginality.

2. Mr Keys admitted some limited drug use approximately ten years ago but denied that he has ever been involved in criminal activity. He has no criminal record other than traffic matters and at all relevant times has been employed full time. In my view Mr Keys presents as a person who is stable in his employment and has pro-social values. His limited drug use many years ago, which he was prepared to admit, and lack of criminal antecedents suggests that these are not matters that impair his parenting capacity.

3. The mother also contends that Mr Keys was violent towards her. She sets out  in her affidavit one incident of alleged violence when P was a baby and says the following occurred:

   …we were both intoxicated. I got upset and threatened to take P and go. I stepped off the gutter and [Mr Keys] [the father] pushed me. I hit my forehead on the road. I went to [T Town] hospital. [Mr Keys] said to me ‘please don’t tell anyone, tell them you fell over because you were drunk’. I was shaken up. I did not tell the police. I never spoke of it again.

   The mother was not cross-examined about this incident.

4. Mr Keys says in his affidavit that there was no physical violence in the relationship except for the following incident: “[Ms Backford] hit me hard in the face with an open palm. I believe this occurred in or around 2003 as it was before [P] was born”. Mr Keys was not cross-examined regarding this incident.

5. When interviewed by a family consultant at the commencement of proceedings, the Memorandum to Court notes that the mother alleged that Mr Keys had pushed her causing her to scrape her head on the gravel and that she attended the hospital. Mr Keys told the family consultant that there was no physical violence and the incident when she attended hospital was from her “falling over drunk”. In the Family Report the mother told the Dr F that there was the same single episode of physical violence and Mr Keys gave the same explanation and also asserted that on another occasion the mother hit him across the face.

6. It is difficult to make a positive finding in relation to the two alleged incidents of family violence as I do not make general credit findings, accepting one party’s version in its entirety over the other.  However, on the basis that neither party was challenged under cross-examination about these incidents, I accept the evidence in each party’s respective affidavit that the mother hit Mr Keys to the face on one occasion and that Mr Keys once pushed the mother when they were both intoxicated.  However, these are isolated incidents that occurred many years ago and there is nothing to suggest that the children have been exposed to family violence perpetrated by Mr Keys or the mother at any time.

Mr Backford

1. Mr Backford is 44 and during the first part of the trial lived in Sydney in the home in which he had lived with the mother from 2007.  By the time the proceedings resumed he lived in public housing with a lengthy secure lease in a nearby suburb.  G and H have lived with him alone since June 2012 when he and the mother separated and the mother took C and B with her to U Town. Up until this time, B had lived in Mr Backford’s household and he had been a father figure to her.  By the time the proceedings reopened in February 2016, C was again part of his household.

2. Mr Backford gains considerable support from his father who lives nearby. Although Mr Backford has formed personal relationships since his separation from the mother, he has not lived with any of these partners. Mr Backford has not worked since G was born in 2007 and has been closely involved in the care of the children since that date.

3. Mr Backford has an extensive criminal history, particularly in relation to driving offences and had not held a valid driver’s license for many years.  By the time the proceedings reopened he had regained his driver’s licence.

Family violence

1. The mother alleges that Mr Backford perpetrated family violence for most of their relationship.

2. The mother says that Mr Backford’s controlling and violent conduct commenced fairly early in the relationship. She says that Mr Backford was jealous when Mr Keys and she were in contact by telephone concerning P (which seems to be around 2007) and was in the background swearing and yelling and telling her to hang-up during the phone calls. She claims that Mr Backford “made [her] get rid of [her] mobile.”

3. The mother describes Mr Backford’s insistence that B’s birth be registered with Mr Backford’s surname as an example of him being in control and says that at that stage she had become scared of him. The mother also says that Mr Backford refused to invite any of her family members to their wedding and used derogatory and insulting language about them. The mother says that at this stage that she and Mr Backford had one phone between them which Mr Backford required her to put on loudspeaker and limited her calls to 10 minutes and that as a result of his behaviour she became exhausted and depressed. The mother also claims that Mr Backford was financially controlling.

4. The mother alleges that in the course of the relationship Mr Backford isolated her from her family members and on the odd occasions they visited he was rude and insulting towards them and did not associate with them. The mother describes herself as becoming very upset and “low” with the loss of her mother who had died and “the loss of P”.  She also said that she was close to her sisters and “they were all that [she] had”, but was not living near them.

5. The mother describes two incidents of serious violence in her affidavit. On one occasion when she was tidying the kitchen when all the children had gone to bed she says Mr Backford was joking and laughing with her and the following occurred

   All of a sudden he grabbed me by the throat and kept saying “say mercy” “do you give”. I said “no” I didn’t want him to have control. He wouldn’t let up and wouldn’t let go. I started to go unconscious. I felt myself sliding down onto the floor. At no point did he let go until I was completely on the ground. When he did let go he said “are you okay” I could not respond.

   I was scared. [Mr Backford] helped me up. [Mr Backford] said “I didn’t mean to do it”. He hugged me and didn’t know what to do. I was confused as we were playing around and I can’t understand how it suddenly turned to that.

1. The second incident of violence in her affidavit occurred on the day the mother and Mr Backford separated. She says

   [Mr Backford] went to storm out. He grabbed [G] and [H]. He was trying to shove [C] out the door as well. I was yelling at him “you’re not taking the kids”. He did not go near [B]. I grabbed [C] and pulled her back in behind my back. [Mr Backford] used his spare arm to push me and elbowed me in the mouth. My mouth was bleeding as he hit it hard. It stunned me and I was in a state of shock. I cannot remember anything further. [B] and [C] were crying and he was gone.

   The mother says that her friend called the police and she provided the police with a statement.

2. Mr Backford denies that there was any physical violence between he and the mother during the relationship though he agrees they had verbal arguments which were sometimes heated, especially towards the end of the relationship. He denies both of the specific violent incidents and the allegations of controlling conduct.  Police records confirm that it is Mr Backford who contacted them following the argument at separation and that he informed police that when the mother went to the front door and tried to prevent he and the children from leaving, he “shoved her out of the way so he could leave”.  According to police records the mother gave the same version of the incident to police.

3. In the initial interview with a family consultant it is recorded that “[Mr Backford] and [Ms Backford] both claimed there was no violence between them.” In the Family Report of December 2013 Dr F records that “both parties stated that there was no violence throughout their relationship though [Ms Backford] asserted that [Mr Backford] pushed her once as their relationship was ending”. Under cross-examination Mr Backford agreed that he pushed the mother in the incident at final separation but denied that he elbowed her in the mouth.

4. I am not satisfied that the mother’s relationship with Mr Backford was characterised by family violence including controlling behaviour as she alleges in her affidavit. So far as allegations of “control” are concerned, I note that even on the mother’s own case, she was able to exert considerable independence including leaving Mr Backford on two occasions prior to their final separation in June 2012.  It is also the mother’s own case that while there may be a dispute about the nature of the incident that occurred at separation, the parenting arrangement was a matter of agreement between the parties rather than Mr Backford imposing an arrangement upon her.

5. I am not satisfied that the incidents of physical violence, including the two serious allegations, occurred as alleged by the mother. I am however satisfied that Mr Backford pushed the mother during the incident at separation. In my view it is of particular significance that the mother had two opportunities to inform different report writers about Mr Backford’s controlling and violent conduct and on each occasion both she and Mr Backford said that there was no violence between them other than the mother reporting that Mr Backford pushed her once as the relationship was ending.  This is consistent with Mr Backford’s concession that he did push the mother in the course of the incident at final separation.  Police records are also consistent with Mr Backford’s version and note that the mother’s version at the time was also consistent with the father’s.  While this single incident of pushing does fall within the definition of family violence[2] in the Family Law Act 1975 (Cth) (“the Act”) I am not satisfied that Mr Backford engaged or engages in a pattern of violent, coercive and controlling behaviour. There is no evidence to suggest that Mr Backford has been the perpetrator family violence towards the mother since separation.

   [2] Family Law Act 1975 (Cth) s 4AB.

6. So far as Mr Backford’s propensity to perpetrate violence in other personal relationships is concerned, he was asked under cross-examination about police records concerning a violent argument with a former partner in April 2014.  Mr Backford agreed that he had been in an intimate relationship with the complainant for some time but claimed, consistent with the police records, that he was the victim of an assault which resulted in his previous partner being charged.  There is no evidence to suggest that this incident occurred in the presence of the children and at the date of the hearing Mr Backford said that this relationship had ended.

7. Although Mr Backford has an extensive criminal history, in the main this relates to driving matters and matters of dishonesty and he has no convictions or findings of guilt for matters of violence.  His lengthy criminal history also contains no offences since 2005 except for a charge of driving while disqualified in October 2009.

8. I am not satisfied that Mr Backford is a perpetrator of family violence towards the mother or that there is any unacceptable risk that children may be exposed to family violence while in his care.

9. In her affidavit the mother also alleges that Mr Backford was abusive towards the children on occasions. She relates a specific incident in late 2008 [when G was about 12 months old] when she says the following occurred:

   I was not in the lounge room at the time and I heard [G] screaming. I walked in to see [Mr Backford] with [G’s] pants pulled down and he was smacking him as he had him bent over the lounge. I heard at least eight smacks. I yelled [Mr Backford] “stop”. I can recall counting the slaps… I went to pull up [G’s] pants and saw a red handprint on his right bottom cheek. It was raised and welted…I took a photo of [G’s] bottom. I lost that phone…

10. The mother also alleges that Mr Backford would smack the children for “small reasons,” but does not give details of any other specific incident. 

11. Under cross-examination Mr Backford denied the incident in which the mother says he smacked G on the bottom about eight times but agreed that “on an occasion” he did smack the children, and that he told Dr F that he did so also.  Mr Backford said that at the time of the hearing he only smacked his children on the hand if it endangered their life and that he had different discipline methods now.  He was not asked any other questions about physical abuse or discipline of the children under cross-examination. 

12. I am satisfied that on occasions Mr Backford has used physical discipline which is consistent with his evidence and supported by G’s remarks to Dr F, that he is sad “when [his] father gets angry and hits [him]”.  However, given the absence of any further evidence that Mr Backford inappropriately uses physical discipline, and as he completed a parenting program in September 2015, I am not satisfied that there is an unacceptable risk that the children would be harmed as a result of excessive physical discipline in Mr Backford’s household.

Other matters relating to Mr Backford’s parenting capacity

1. Overall, Dr F formed the conclusion that “there seems to be considerable stability to [Mr Backford’s] life and living arrangements”.

2. Dr F had considerable concerns about Mr Backford’s capacity to meet C’s emotional needs if she were to move to his household, especially in dealing with C’s grief at separation from her mother and as C would be moving to a “very male” household.

3. Having regard to her opportunity to observe the children with each parent, having access to documents under subpoena and also as she was not substantially challenged on these matters, I accept Dr F’s opinion on Mr Backford’s parenting capacity.

4. Dr F also had some concerns about the capacity of Mr Backford to facilitate the children staying connected with their cultural roots. In his affidavit and under cross-examination Mr Backford said that he thought it was very important for the children to maintain a connection with their Aboriginal culture.  He said however, that when the children lived with him and the mother as a family they never enjoyed any aspects of an aboriginal culture and the mother did not ever discuss with him the way in which the children could enjoy their aboriginal culture.  He said that if the children’s mother suggested something that he could do to further the children enjoying their aboriginal culture, he would do that.  Under cross-examination Mr Backford denied denigrating Aboriginals and their culture.

5. There was evidence of some other concerning aspects of Mr Backford’s parenting, particularly in relation to supervision of the children, which related to incidents that occurred after Dr F’s assessment. For example, it came to light under cross-examination that in October or November 2014 G, who was seven at the time, took Mr Backford’s lighter and burnt down a shed at the home while Mr Backford was in the bath. This incident was not referred to in the father’s affidavit.  In my view the father’s conduct on this occasion demonstrates some lack of capacity with respect to appropriate supervision.

6. It also came to light under cross-examination that around the same time, in October 2014 G was hospitalised overnight as a result of an accident when he was struck by a car.  This incident was also not referred to in Mr Backford’s affidavit.  It became clear however under further cross-examination that G was hit when he, Mr Backford and H were crossing the road on a pedestrian crossing.  Mr Backford said that driver stopped and was charged and that although an ambulance attended the scene G received nothing more than a graze on his finger and was shaken up. I do not make an adverse finding against Mr Backford in relation to this incident which appears to have been an unfortunate accident rather than an example of inadequate supervision.

The mother

1. The mother is a 31 year old Aboriginal woman from western New South Wales.  She is one of seven female siblings.  She also has close family connections with extended family including a cousin, Ms O who gave evidence in the proceedings. 

2. The mother experienced a number of difficulties in her childhood including being exposed to drug use by her father, who was in and out of gaol.  She was close to her mother and was significantly affected by her mother’s death.

3. The mother regards the close connection with her sisters as a matter of considerable support to her.  In her affidavit she says “we have a close family where we often co-parent our children”, but does not give any other evidence concerning Aboriginal culture.

4. There are three significant risk factors associated with the children in the care of the mother, these being the influence of her extended family, Mr I and her partner, Mr E.

The mother’s extended family

1. In her affidavit the mother says that she is the oldest sibling in the family and provides the following information about her six sisters. 

   ·“There is [Ms AA], who resides in [BB Town] with her eight children,

   ·[Ms J], who resides in [U Town] with her two children,

   ·[Ms N], resides in [Q Town] with her five children,

   ·[Ms L] has two children and is currently incarcerated,

   ·[Ms Y] lives in [Q Town], and

   ·[Ms M] resides in [CC Town] with her three children.”

2. As outlined earlier in these Reasons, after the mother separated from Mr Backford, she took B and C to live with her in U Town near her extended family.  In the course of cross-examination the mother said that she first lived with her sister Ms J and Ms J’s children for just over 12 months.  The mother described that she had a concerning pattern of drinking at this time, consuming between 15 and 20 cans of mixed drinks per session on Friday and Saturday nights.  She said she was drunk when she got home and hung over during the day and the children knew not to wake her.    The mother also said she was very depressed after her separation from Mr Backford and was too unmotivated to get out of bed and the children were late or absent from school regularly at this time.  For example, school records indicate that in 2013 B was absent or late on 104 school days. The mother said that she then stopped drinking but Ms J began drinking.

3. The mother said that the level of Ms J’s drinking then caused an argument between herself and Ms J.  In July 2013 the mother, B and C moved to the mother’s paternal grandfather’s house where her sister Ms M was then living with Ms M’s boyfriend and their small child. 

4. In January 2014 P spent some time with her mother in the holidays in U Town. After P returned to her father he observed that she was injured. P complained that Ms M slapped her on the head and face for “walking too slowly” and this was reported to police. The police obtained a similar history according to police records and sighted P’s injuries and sought an AVO for P’s protection. The mother denied that this incident occurred.  I am satisfied that P was assaulted as she reported to her father and police. At the time police observed injuries consistent with the complaint and when interviewed by police it is recorded that P heard her mother say to Ms M “if you hit my kid again I’ll hit your kids”.

5. Although the mother says that she obtained her own accommodation after living with her grandfather for six months, it appears that she lived with her sister Ms N in U Town for a couple of weeks before obtaining separate accommodation for herself, B and C.

6. During the time the mother lived in U Town, there were a number of other incidents which involved her sisters.  For example the mother’s sister Ms L, also known as L, came to the mother’s home in a drug affected state when the children were present but the mother did not allow her in the home. 

7. In early 2014 the mother’s cousin Ms K also attended the mother’s home when intoxicated and the noise she created woke C and B.  Community Services records indicate that Ms K’s fourth child had been removed from her care in late 2014 as a newborn, and the child’s four older siblings were also in care.  In January 2014 the mother had applied for and had been assessed as suitable to be a kinship carer for Ms K’s fourth child.

8. In April 2014, although it appears the mother had her own accommodation at the time, she, C and B were staying at Ms J’s house when an incident occurred. Ms J’s daughter DD was sexually assaulted by another woman guest (Ms EE) at the home.  In her affidavit the mother does not give any details of this incident except to state she “witnessed [her] niece being sexually assaulted” and that it was very traumatic for her [the mother]. 

9. Under cross-examination it became clear that C and B were staying with the mother at Ms J’s home at the time of this incident and that the sexual assault of DD occurred in the bed in which the mother herself was sleeping.  Under cross-examination it was revealed that the mother woke to find Ms EE rubbing her legs against DD’s leg and “dry humping” the child.  The mother and Ms EE then began an argument and awoke DD’s mother.  The police attended and Ms EE was arrested.  The police noted that the house was in disarray and the mother agreed this was the case. 

10. After this incident the mother said as a result of her trauma she began drinking again “for about three to four weeks”, after which she saw a counsellor for one session and a Doctor for another session, and she took some antidepressants for a short time. 

11. The mother also agreed under cross-examination that B and C did not attend school on many occasions in early 2014 because she was in a depressed state.  By semester 2 in 2014, for example B had been absent from school for 35 days. 

12. In her affidavit the mother said that she moved from U Town in November 2014 as she was concerned about the environment in that town.  Although in my view this is not a complete description of the reason for the mother’s move (a matter to which I will return later in these Reasons) I am satisfied that when living in U Town the children were exposed to excessive drinking, disruptive behaviour associated with drug taking, conflict between the mother and her sisters associated with these issues and were present in the home of the mother’s sister where a child was sexually assaulted.  The children lived with the mother in five different premises in U Town, and on occasion the homes were over-crowded.  At other times the mother was drinking excessively, was unmotivated and did not ensure that the children regularly attended school.  I am also satisfied that one of the mother’s sisters (Ms M) assaulted P when P was spending time with the mother.

13. When the mother moved to Q Town, she associated with two of her other sisters who lived there.  Those sisters, Ms Y and Ms N, had continued to associate with Mr I who had previously been convicted of assaulting the mother’s niece, DD (an incident to which I will also return).  The mother’s cousin, Ms O, who gave evidence in the proceedings, and regularly saw the mother when she lived in U Town, also said that she “loved and respected” Mr I. 

14. Having regard to all of these matters, I am satisfied that while the mother may regard her extended family as supportive, there are potential risks arising from the dysfunctional and chaotic lifestyle to which the children are exposed through the mother’s association with these family members. 

15. Dr F had identified in December 2013 that the most significant issue in relation the mother’s parental capacity is that she appears to have placed her own needs to either form a relationship or return to live in close proximity of her family above those of her children.  She said “[t]his assessment would raise questions whether she would chose (sic) to do this again if the circumstances that were beguiling enough to her presented”. 

16. Notwithstanding Dr F’s opinion that a change of residence by the mother or Mr Keys would have a “devastating” impact upon their children, 11 months after the Family Report was written and released the mother moved without notice in November 2014 from U Town to Q Town and took the children with her.  She began living with Mr E with whom she had been in a relationship for one week.  The mother did not tell either B or C’s father of her relocation for some time.  As a result Mr Keys and Mr Backford were not prepared to allow the other children to spend time with the mother as they did not know the details of her living arrangements.  For six months P, G and H did not see their mother and other siblings and C and B did not spend time with their fathers or siblings.  In addition to the impact that this move must have had on the children’s relationships, the move also raised other significant risk factors for the children.

17. First, the mother’s partner Mr E has a very serious history of violent conduct including as the perpetrator of family violence.  Second, risk factors associated with the mother’s sisters intensified following her move to Q Town.  In particular the risk is associated with the mother’s ongoing association with two of her sisters who continue to be associated with Mr I and have caused C and B to come into contact with Mr I. The third risk factor relates to Mr I himself.

Mr E

1. Mr E has an extensive and serious criminal history and in addition to matters for which he has been convicted, there are numerous other events in which police have been involved.

2. The mother gives no details concerning Mr E in her affidavit except to say that she has known him a long time, commenced a relationship with him on 18 November 2014 and moved to Q Town to live with him one week later. 

3. Mr E says in respect of his history of violence, only that he “was convicted of manslaughter in 2005”.  He describes his conduct in relation to that offence as follows “I was attacked with a baseball bat when I was asleep.  I knocked out the victim and left for 5 hours and he unfortunately passed away”.  He also says in his affidavit “I do not see myself as a murderer or a violent person.  I have no further convictions”. 

4. Mr E’s description of his conduct relating to the manslaughter charge for which he was found guilty, in my view seriously minimises the facts of that offence, to the extent of being misleading.  A summary of the sentencing remarks[3] indicate that the following occurred:

   [3] R v WKD and R v MJN [2005] NSWSC 694

1. Mr E attended a party at the home of the victim on 15 February 2003 and took one of the victim’s guitars.  The victim then unsuccessfully sought the return of the guitar and an altercation took place between he and Mr E in which the parties were separated and neither of them was seriously injured.  The following morning, the victim attacked Mr E when he was asleep in bed by striking him through an open window with a baseball bat causing a bleeding injury to Mr E’s head.  Mr E was heard to threaten the victim that he would get him back and called out “yous are both dead”. 

2. Three days later Mr E and some of his associates including a teenage cousin were drinking together and formed an agreement to confront the victim.

3. When they arrived at the victim’s home, Mr E asked his girlfriend to lure the victim out of his house which she did.  After the victim came out and had a conversation with Mr E’s girlfriend, the victim returned to his home and came out with a large bow and arrow.  Mr E, who had been concealed nearby, ran at the victim with an iron bar and struck the victim on the head several times.  Mr E and his cousin then threw the victim onto the ground and there was a further altercation in which Mr E’s cousin struck the victim on the head with a beer bottle.  The victim fell to the ground, bleeding from the nose and mouth and making choking sounds.  Mr E told the others to take anything they wanted from the victim’s home. 

4. The victim was found the following morning and had suffered a fractured skull and multiple pieces of bone were depressed onto his brain.  Part of his skull was removed but he died approximately six weeks later. 

5. In her remarks on sentence (supra), the trial judge (at [15]) described Mr E as “a most unsatisfactory witness” and said that there were numerous inconsistencies in his evidence including “on highly pertinent matters”.  In particular the trial judge noted the contrast between Mr E’s evidence as to the size of the iron bar and the lack of force with which he struck the victim and the medical evidence as to the injuries inflicted.  She noted that the medical expert said “in 20 years of having seen head injuries caused by assaults, the extent of these fractures was unusual in the severity”.  He described this as “one of the major assaults to a skull” which he said was caused by a “major amount of force”.  The trial judge found that Mr E was the person who inflicted the major injuries which ultimately led to the victim’s death.  The trial judge did not find that Mr E had acted in self-defence and said “his action was not a reasonable response to the circumstances as he perceived them”.  She also found of significance that Mr E planned to assault the victim and that his co-offender cousin, who was only 15 at the time, was “very much under his older cousin’s influence”.

6. In my view Mr E’s version of the events in his affidavit is inaccurate as to a number of significant matters.  Mr E clearly intended to imply that he was acting in self-defence, and that his actions were taken as an immediate response to having been attacked with a baseball bat.  His description that he “knocked out the victim” and omission that he used an iron bar to hit the victim forcefully on the head is a serious minimisation of the brutal way in which he attacked the victim and caused his death.

7. Under cross-examination Mr E maintained that he could remember “the scuffle” with the victim but did not remember striking the victim on the head with an iron bar.

8. Under cross-examination Mr E maintained that he had no other convictions for violence.  However, his criminal history reveals that he was convicted and imprisoned for three counts of common assault, one count of assault occasioning actual bodily harm and two counts of contravening an Apprehended Domestic Violence Order (ADVO) in January 2003.  These offences were committed in U Town a few weeks prior to the manslaughter offence which occurred in February 2003.  The victims of these assaults were his then partner, who was pregnant with his child, and her aunt.  When cross-examined Mr E was aware of these offences but said he had no memory of the details.  He said he was under the influence of cannabis and alcohol at the time.  He said that he was affected by drugs and alcohol “all the time” for a number of years from around the age of 16. 

9. Unfortunately, the facts upon which Mr E was sentenced for the assaults were not available.  However, police records indicate that the offences against his then partner were committed over a period of a few days.  According to those records, the events began when Mr E threatened the victim who was pregnant at the time that he would bash her.  The victim contacted police and while on the telephone was approached by Mr E.  She was concerned about his reaction to her calling the police and hung up and left the location with Mr E.  Mr E pushed her in the back telling her to “walk faster” and when they arrived at a park he grabbed the victim by the back of her neck and pushed her.  She dropped to the ground and Mr E then picked her up and dragged her into the men’s toilets at the park.  Mr E then punched the victim to the face and head before he was interrupted.  Police who were parked nearby approached and asked the victim how she sustained an injury to her eye.  She told them that she had fallen over.  Mr E was arrested for a breach of the peace and as he was placed in a police truck he began threatening to kill the victim in the presence of police.  Mr E was taken to the police station and served with an Apprehended Violence Order for the protection of the victim. 

10. The following day police records indicate Mr E went to the victim’s home, engaged in a verbal argument and then slapped the victim to her face and head butted her.  The victim’s aunt walked in and threw a plastic crate at Mr E in an attempt to stop him.  Mr E then took hold of the victim’s aunt and they became involved in a physical altercation in which the aunt fell to the ground and broke her hip.  Mr E then dragged the victim by the shirt to the gutter in front of the house and as the victim stood up he punched her to the stomach a number of times and kneed her to her chest.  When the victim dropped to the ground, Mr E picked up a stick and started tapping the victim on the head.  The victim subsequently felt dizzy and her head was sore and she was taken to hospital and admitted for a few days.

11. The following week Mr E and the victim again had an argument and the victim went to the bathroom.  As she was preparing to have a shower, Mr E walked into the bathroom and head butted her to her forehead.  When the victim later visited her aunt in hospital she was observed by police to have injuries to her forehead, under her eye and on her arm.

12. Mr E was sentenced in respect of these offences in March 2003 (when he was awaiting trial for the manslaughter offence) to a term of imprisonment of 18 months with a non-parole period of 13 months.

13. Although there is no evidence that Mr E was charged or convicted of any other offence of violence, police records indicate there was also a complaint  that he assaulted another young woman with whom he had a relationship in December 2012.  It is recorded that there was a complaint in December 2012 that Mr E punched his then partner to the face in the course of an argument and after the victim armed herself with a knife, he grabbed the knife from her hand, cut himself and continued to punch the victim.  Mr E then picked up a glass object and struck the victim twice to her head causing a deep laceration behind her ear.  The victim managed to get away and notified relatives who called police and ambulance and she was taken to hospital.  Police records show that Mr E who was highly intoxicated was arrested.  The outcome of this charge is unknown. 

14. Under cross-examination Mr E agreed that he was in a domestic relationship with this victim at that time but had no recollection of the circumstances of this alleged assault when they were put to him.  He agreed that the events could have occurred but said he did not remember them. 

15. I am satisfied that Mr E was the perpetrator of family violence with two partners and committed significant acts of violence against at least one of them in the two months prior to being arrested in February 2003.  He then spent the next twelve years in custody until his release in June 2014 for a matter of particularly serious violence which resulted in a person’s death.  Mr E was on parole when the mother rekindled her friendship and commenced a relationship with him in November 2014 and is still on parole at the date of delivery of these Reasons.

16. The sentencing remarks in respect of Mr E’s manslaughter offence [at 38] include reference to a psychiatric report in which the Doctor “noted a history of “occasional hazardous alcohol use” but no evidence of mental illness which might have effected E’s legal responsibility for this offence”.  Records from the New South Wales Department of Justice indicate that Mr E was not released to parole on his first application.  His first application for release on parole was opposed by the Commissioner of Corrective Services on the basis of 16 institutional conduct charges, seven of which were drug related, being either positive urinalysis results or the failure to provide samples. One of the conditions of Mr E’s parole is that he attend Alcoholics/Narcotics Anonymous. I infer from the psychiatrist’s report, the parole documents and conditions and from Mr E’s own evidence concerning substance misuse, that alcohol and drug misuse is a significant risk factor in his violent offending.

17. Under cross-examination the mother said she was aware that Mr E had been in gaol for manslaughter and that he told her that “he killed a bloke” and that “he was drinking and was under the influence of drugs” [at the time]. She said he told her this the week before she moved to Q Town, but she had always been aware of it as it was “just something she had heard about”. 

18. The mother said that at the time she decided to move to Q Town, although she took C and B with her to live with Mr E, she made no other enquiries about his criminal record.  The mother had no knowledge of the assaults against previous partners.  The details of the assaults were read to the mother in Court but she said that they did not cause her to have serious concerns about Mr E and his capacity for serious violence in relation to his partners. The mother gave changing and contradictory evidence about concerns she may hold about Mr E’s propensity to family violence.  She agreed for example that she was concerned that Mr E may be hiding other matters from her but then said that this did not decrease her trust in Mr E. 

19. There is little other evidence that may assist in an assessment of the existence and magnitude of the risk that C and B may be exposed to family violence in their mother’s household as a result of the mother’s relationship with Mr E.  Dr F expressed the view that Mr E would have received the benefit of rehabilitation during his lengthy incarceration which may have assisted him in his emotional regulation.  However, it is not clear that Mr E’s limitations for emotional regulation were necessarily associated with the serious level of his previous violence.  Further, given the psychiatrist’s reference to Mr E’s “occasional hazardous alcohol use”, Mr E’s evidence concerning his drinking patterns at the time of his offending and his institutional drug related conduct charges, I am of the view that alcohol and drug misuse are potential risk factors associated with Mr E’s violence. Although he is required to attend Alcoholics/Narcotics Anonymous as a condition of his parole, this is due to expire in June 2017 and there will be no requirement thereafter to continue attending.

20. I am satisfied that given his violent history especially in intimate relationships, there is a real risk that Mr E may be violent toward the mother particularly when affected by drugs and/or alcohol and there is an associated real risk that children living in the mother’s household may be exposed to, and detrimentally affected by, any such family violence.

Risk posed by Mr I

1. The mother and her family members, in particular some of the mother’s sisters, have had a long association with Mr I.  Mr I is a non-indigenous person and the circumstances in which the mother and her family came to be originally associated with him are unknown.  However, there is no doubt that it is a long-standing association. 

2. In her affidavit the mother describes Mr I “an old family friend” who lived with her, Mr Keys and P (who was then an infant) in 2005. She says that when B was a few months old and she was separated from Mr Keys she moved to a unit in U Town with P, B and Mr I. She said that her family trusts Mr I, “never had any concerns with him” and “he had lived with mum and 7 girls without any issues being raised”.

3. In October 2006 when Mr Backford came to live with the mother in U Town he shared a home with her, Mr I and B who was then 12 months old. 

4. Mr Backford did not refer to Mr I by name when assessed by the Dr F but did tell her that when he first met the mother, B was sharing a bedroom with “an elderly man”, and expressed concerns that the mother would expose C to similar risks given her unstable living arrangements. 

5. Under cross-examination the mother agreed that when Mr Backford came to live with her, B would sleep in the same room as Mr I when B was sick.  She said there was a single bed in Mr I’s bedroom and a mattress rolled up in the corner which Mr I unrolled for B if she was sick. The mother said under cross-examination that if Mr I had done something inappropriate to B, B (who was one year old at the time) would have known that the touching was inappropriate and would have the capacity to have informed the mother.

6. Although none of the affidavits refer to Mr I’s criminal history, and it was not raised with Dr F when she assessed the family, police records indicate that Mr I had been known by police since at least 2002.  Although many of the matters that initially caused Mr I to come to the attention of police were trivial, such as traffic offences and in some cases Mr I is referred to as a victim, his name first appears in connection with a child at risk in July 2006. 

7. In January 2008 police records indicate that there was a serious complaint of indecent assault perpetrated by Mr I.  Mr I had been seen placing his hands inside the pants of a child under the age of 10 and putting his head between the child’s legs.  This incident was said to have occurred in the bedroom of a home where the victim’s two aunties, who were adolescents, and grandfather where present.  Police records indicate that after a family member told Mr I and the victim to get out of her bedroom, Mr I was then observed with the child victim on the veranda of the same home bending his head towards the victim’s legs near her genitals.  Court records indicate that Mr I was subsequently charged and pleaded guilty to one count of indecent assault of a child under 10 years and that a second charge was withdrawn.  Mr I was sentenced to 12 months imprisonment with a non-parole period of 7 months from 18 February 2009.  He appealed against the severity of this sentence but the appeal was dismissed and the conviction was confirmed by the District Court.  Following his conviction Mr I was placed on the Child Protection Register and is to remain on the Register until November 2017.

8. Although there is no reference to this incident in the mother’s affidavit, she does not dispute that the child victim was her niece DD (the child of Ms J) and that the two aunties described as present at the time of the incident are two of the mother’s sisters. 

9. In mid-2012, two and half years after Mr I was released from goal, the mother returned to U Town after her separation from Mr Backford and lived with Ms J and Ms J’s children including DD.  The mother does not refer in her affidavit to any discussions she had with Ms J relating to Mr I’s conviction or to contact she had with Mr I after this time.  She also does not refer to knowledge of any association between her family members and Mr I after the January 2008 indecent assault or any other matter indicating that she understands that there is a risk posed by Mr I.

10. In October 2013 police records indicate that Mr I again came to the attention of police in relation to an allegation of child sex offences.  The records also indicate that the alleged victim in this case did not disclose anything when interviewed and there was no evidence to support any charge.  Police records indicate however, that when Mr I was spoken to about this matter and his previous conviction was referred to, he denied having committed the offence [in 2008] and blamed his legal representative for the guilty plea.

11. Although there is no reference to this incident in the mother’s affidavit, on 28 May 2015, Mr I had contact with C and B at the home of the mother’s sister Ms N and Ms N’s partner, Mr E (who is Mr E’s brother), when Ms N and Mr N were caring for the girls.  Although the mother said under cross-examination she did not see Mr I at Ms N’s’ home when she delivered the girls there, she knew that Mr I was a close associate of Ms N and Mr N and “travels with them”.  The mother says she was unaware at the time that B had contact with Mr I at Ms N’s home. 

12. Mr E said under cross-examination that he saw Mr I at Mr E and Ms N’s house at the end of the children’s stay and recognised Mr I from gaol.  Mr I told Mr E he’d spent time in custody for “child molestation”.  Mr E said he didn’t tell the mother about Mr I [being at Ms N and Mr N’s home] as the mother was focusing on C who was ill.

13. As noted previously, on the same day that the contact with Mr I occurred, C complained of pain in her vagina.  She was presented to hospital a few days later with a fever and other signs of pneumonia.

14. While waiting at the hospital Emergency Department Mr I was in the company of the mother and children and had apparently bought them some food.  Under cross-examination the mother said that another of her sisters, Ms Y had brought Mr I to the hospital.  It is recorded in Community Services records that the mother told the reporter (who appears to have been a staff member at the hospital) that C doesn’t like Mr I and “he apparently travels with the maternal aunt and [Mr E] and has no other relationship with them…and is known “by reputation” to have been previously accused of sexual assault of children”.  The record indicates that when the staff member briefly questioned C and asked her whether she had previously experienced pain in her vagina C became teary and said she had not. 

15. The mother said under cross-examination that she believed Mr I had sexually interfered with C on this occasion but under re-examination said that Community Services had quelled her fears.

Allegations of recent contact with Mr I

1. In the course of the further hearing in February 2016, Mr Backford and Mr Keys contended that the children had come into contact with Mr I again in December 2015 when all the children were spending time with the mother in her home in Q Town. 

2. The mother denies that any of the children has been in physical contact with either Ms N or Mr I since September 2015 and in particular denies that the children came into contact with Mr I when he was in Q Town in December 2015 or January 2016.  Mr E gave evidence consistent with the mother, denying that any of the children had come into contact with Ms N or Mr I since September 2015.

3. It is not in dispute between the parties that Mr I spent some time with the mother’s sister Ms N and her partner Mr E and Ms N’s children in Q Town in December 2015 and that they all travelled together to U Town over Christmas 2015. 

4. The mother says in her affidavit that Mr I arrived in Q Town on the afternoon on 23 December 2015 and then took Ms N, Mr E and their children to U Town on 24 December 2015 and returned to Q Town on either 4 or 5 January 2016.

1. Under the mother’s proposal, B would again be separated from P and that sibling relationship would only be supported by time together during the school holidays, unless the mother moved to Sydney or the Central Coast area as had been foreshadowed at the end of the first part of the proceedings.  Given that no steps have been taken by the mother since September 2015 it appears to be unlikely that she will now move.  In these circumstances under the mother’s proposal this sibling relationship which has strengthened would once again be fractured.  Dr F was of the view that “that it would be a significant loss for P and B now that they have resumed a sibling relationship with each other to be denied a continuation of that relationship”.

2. So far as B and C’s relationship with their siblings in Sydney is concerned, Dr F expresses the view that it must have been difficult for them when B and C were separated and such little contact occurred with each other.  She said:

   As for reintegrating [C] into the sibling group with her brothers, the Court would need to weigh up the losses of being removed from her primary care giver, albeit that there are some attachment issues in [C’s] relationship with [her mother] as to the benefits of being in the sibling subgroup, away from her mother and sisters.

3. The nature of B and C’s sibling relationship and the relationship between each of the girls and the mother is in my view an important factor which weighs in favour of the mother’s orders. However, in my view it is less significant than the need to protect the children from harm given both the nature and magnitude of the risk of harm in the mother’s household.

The extent to which each of the children's parents has taken, or failed to take, the opportunity: to participate in making decisions about major long-term issues in relation to the children; and to spend time with the children; and to communicate with the children

1. Each of the parents has at some time made long term decisions regarding the children which have detrimentally affected the children or has failed to take the opportunity to participate in such decision making.

2. The mother’s failure to pursue any involvement in P’s life for many years and the manner in which she re-entered it in 2011 in Dr F’s opinion reinforced the mistrust P felt towards her. Mr Keys’ failure to pursue a relationship with B for many years from the age of six months has been experienced by B as having been abandoned by him.  

3. The decision made by agreement between Mr Backford and the mother that resulted in the siblings being separated is a matter for which those parties should also take responsibility.

4. Since parental separation each of the parties has effectively made the long term decisions for the children in their respective households and there has been no cooperative decision-making. Some of those decisions which have been taken unilaterally have also detrimentally affected the children such as the mother’s decision to relocate B and C to Q Town in November 2014, which had the result that each child lived further apart from her father and siblings.

5. Although the parents have complied reasonably well with the orders that have been in place from time to time with respect to the children spending time with the non-residential parent, this has not always occurred. On occasions this has resulted in the children missing out on precious time with a parent and other siblings. On occasions this appears to have been more associated with a parent making a point against the other parent than understanding the impact of that decision on the children. For example, on one occasion Mr Backford returned the children early to their mother during a school holiday period as he was dissatisfied with the state of the clothing the mother had provided. On a number of occasions in 2015 the mother did not make B available to spend time with her father and did not request to spend time with P due to a dispute between she and Mr Keys in relation to the information about the mother’s living arrangements.

6. More recently, in the September/October 2015 school holidays the children were to spend time together with the mother with changeover to occur between Mr Backford and the mother at 12:00pm on 27 September 2015. The mother says that she arrived at the changeover point at approximately 12:50pm and that she mistook the changeover time for 1:00pm. Mr Backford says that he waited until 1:10pm and after no contact with the mother, left the changeover point. As a result, G and H did not spend time with their mother in this holiday period.

Maintenance of the children

1. There is no evidence in relation to this issue. It can be assumed that each of the parents has maintained the children in their respective care since separation.

Likely effect of change in the children’s circumstances as a result of the proposed orders

1. The likely effect of a change in circumstances that would be brought about as a result of the competing parenting proposals is another particularly important consideration in this matter.

2. The current arrangement has been in place since January 2016 when Mr Keys retained B and Mr Backford retained C in their care. This arrangement has only been maintained through court orders on an interim basis. It is to be hoped that C and B also understand that this is a temporary arrangement.  In the event that it becomes the permanent arrangement through orders of the Court it is also hoped and expected as a result of Dr F’s evidence that the transition will be handled by each of the fathers in a sensitive and supportive manner for B and C.

3. In the event that B comes to live permanently in her father’s household pursuant to his proposal, it is likely that she will feel a significant sense of loss associated with separation from her mother. Dr F was unshaken under cross-examination, despite all of the concerns about the mother’s protective capacity, that Mr Keys lacked the insight to understand P’s emotional needs and had not sought some form of appropriate intervention by way of therapy or counselling for her.  Dr F thought that this did not augur well in terms of his capacity to integrate B into his family. She said:

   There are going to be issues that she will need to resolve with her mother as part of that transition, and in the absence of her mother being close by she may be left to fall through the cracks a bit as I said, and it would require an enormous level of sensitivity to deal with that grief – that loss of being removed from the care of the person who has been her primary caregiver.

4. As previously noted the sibling relationship between B and C is also particularly strong and it is likely that B will experience the loss of C very strongly, especially given all of the losses and experiences of abandonment she has had to contend with in her life.

5. It is likely that C will experience the loss involved in separation from her mother and B if orders are made as proposed by Mr Backford with a similar degree of intensity. Dr F also expresses many concerns about Mr Backford’s capacity and says this of her concerns:

   I guess my fears are that the grief and loss for her too of being removed from her mother won’t be picked up and addressed and that her needs – her emotional needs especially, will go unmet particularly as she’s not spending significant time with her mother…

   It’s a very male household and [C] has been living wth her mother and sister predominantly so there would be a significant number of areas that [Mr Backford] would need to be attuned if [C] were to live with him.

6. At the time Dr F made her recommendations, the extent of the separation of C and B from their mother under the fathers’ proposed orders was not as great as the separation that would occur should the orders now be made as they propose.  At the time of Dr F’s assessment, if orders were made for B to live with Mr Keys, (who was then in T Town) B would still have been able to have quite regular contact with her mother as the two parents were then living a relatively short distance from each other. By the time the trial commenced in July 2015 the mother had moved B a significant distance from the father and by the time the trial was completed in February 2016 Mr Keys had moved B a similar distance away from the mother.

7. As the mother did not engage in the alternate proposal which arose in the course of the proceedings that she move to the Sydney or Central Coast area the mother now lives a significant distance from B. Having regard to my findings concerning an unacceptable risk of harm if B and C were to live primarily with their mother or spend overnight time with her in Q Town, the separation for B from her mother is very significant and weighty factor to be considered in this matter.

8. The extent of physical separation of C from her mother (and B) entailed in the orders proposed by Mr Backford is similar to that considered by Dr F in her report. However, having regard the issues of risk in the mother’s household should she remain living in Q Town (which is the case at the time of delivery of this judgment) C’s separation from her mother involved in Mr Backford’s proposed orders in these circumstances is a significant and weighty consideration.

9. An application of this consideration in respect of B and C’s separation from their mother and each other would favour the mother’s proposed orders. So far as the siblings are concerned however, an advantage of the proposals of Mr Backford and Mr Keys is that the children would be living in two households rather than three and in much close proximity to each other than under the mother’s proposed orders. This has the has clear advantage of the children being able to spend significantly more time together especially as the fathers are now cooperating with each other and have arranged for the children to spend time together in addition to the time provided for under the orders. 

Is there any practical difficulty or significant expense involved in spending time with and communicating with the other parent?

1. There is great practical difficulty and significant expense involved in the children spending time with the parent with whom they do not live under each of the parents’ proposals.

2. The mother lives in Q Town, a significant distance from each of the fathers and B and C’s siblings. The mother does not have a driver’s license and appears to be in a precarious financial position. Arrangements for the three children who do not live with the mother to spend time with her at her home and arrangements for B and C when in her care to spend time with their respective fathers are complicated.  For example during the most recent holiday period while collecting the other children the mother needed to arrange for care of C and B and at changeover time required Mr E or another person to assist in transport.

3. Mr Keys now proposes that the mother’s time with P and B be for a short period during daytime and spent in the Central Coast area.  Mr Backford’s proposal is that the mother spend time with C, G and H in the Sydney area. Both fathers say such an arrangement is necessary to mitigate the unacceptable risk of harm that arises if the children spend time with their mother in Q Town.  The practical difficulty and expense involved in these proposals is even greater as it will entail the mother travelling to Sydney and the Central Coast and arrange accommodation for herself in those locations.

4. The mother’s proposed orders in the event that B and C do not live with her as at September 2015 envisaged the children spending overnight and block holiday time with her in the Sydney or Central Coast region. At the conclusion of the proceedings in February 2016 she had not moved, and her proposal is for the children to spend the weekend and block time in Q Town. The mother did not put forward any proposal in the event that it was found that there was an unacceptable risk of harm to the children should they spend time overnight time with her, even though that issue was central to the reopening of the proceedings and was clearly within the Court’s contemplation.

5. The ICL also did not propose any specific orders in the event that the Court finds that there is an unacceptable risk of harm to B and C if they were to live with their mother. The position of the ICL is that an unacceptable risk of harm to C and B does arise in the care of their mother if she is to continue to live in Q Town but the ICL submits that if the mother were to move from Q Town “the risk would disappear”. The mother had not moved from Q Town by the time the proceedings were complete and did not indicate any intention to do so.  In these circumstances the ICL supported the proposal of the fathers but no Minute of Order was formulated.

6. Although there are significant practical difficulties and expense entailed in each of the proposed suite of orders, the greatest difficulty and expense of this type arises under the orders proposed by Mr Backford and Mr Keys.  Although an application of this consideration therefore favours the mother’s application, it is in my view less weighty than the need to protect the children from harm. This is especially so when an alternate proposal which would significantly reduce the practical difficulties and expense to the mother was at one point promoted by the mother but not ultimately pursued.

The capacity of each parent and any other person to provide for the children’s needs including emotional and intellectual needs

1. The evidence reveals significant concerns about each of the parent’s capacity to provide for the children’s needs.

2. As previously discussed under a number of the other considerations, each of the parents bears responsibility for the children having been separated from each other and the other parent and each shows little understanding of the children’s emotional needs and the impact of their decisions in that regard upon the children.

3. Although Mr Keys appears to have met P’s basic needs, I have found that over many years he has neglected her physically to some extent and in more recent years seems to have had difficulty managing P’s acting out behaviour. I accept Dr F’s concern about whether he would have the capacity to sensitively integrate B into his blended household.

4. I accept Dr F’s similar concerns about Mr Backford’s capacity in particular to meet C’s emotional needs and to provide the sensitive support needed to reintegrate her into his household. There are also some concerns about inadequate supervision in his household.  However, I also accept Dr F’s observations about the stability and emotional robustness of G and H who have been in Mr Backford’s care all of their lives. I also note that Mr Backford proposes an order that C be provided with therapeutic support to integrate her into his household. These observations, in my view, reflect positively upon Mr Backford’s capacity.

5. I also accept Dr F’s significant concerns that the mother appeared to lack the capacity to draw boundaries and set limits on the children’s behaviour. It was observed by Dr F that “chaos erupts quite quickly” when the children were with their mother.

6. Dr F also stated that the Court may need to investigate the allegations made by each of the fathers about the instability of the mother’s living arrangements and multiple carers to which she exposes the children, although she noted that “some of this parenting behaviour may be cultural and consistent with a more collective parenting style that involves extended family”. I am satisfied for the reasons given earlier, that the fathers’ allegations about the instability of the mother’s living arrangements and multiple carers to which she exposes the children are made out. Some of the parenting behaviour may be, as Dr F opines, cultural and consistent with more collective parenting style that involves extended family. Nonetheless, I am of the view that there have been significant risks involved in the living arrangements for B and C after the mother separated from Mr Backford and in these children being cared for by extended family members in this particular family.

7. The living arrangements for the B and C when they lived with their mother in U Town between June 2012 and November 2014 were characterised by frequent changes of residence, in some cases overcrowding, exposure to disruptive behaviour of the mother’s sisters and impaired parenting capacity in the mother due to her alcohol misuse and mental health difficulties. I also accept Dr F’s opinion that the mother prioritised her own need to be nearer to her family in moving to U Town following separation and then prioritised her own needs to be with her new partner Mr E and other family members when she moved the children to Q Town.

8. Most significant of all however, is the mother’s incapacity to protect her children from the harms associated with her sisters’ lifestyle and their association with Mr I and the mother’s incapacity herself to protect the children from Mr I. The mother’s incapacity in this regard is dealt with at length earlier in these Reasons.

9. Dr F referred to the risks as “seem[ing] to be endemic to her extended family”.  Dr F described the ongoing association of at least two of the mother’s sisters and a cousin with Mr I’s when he had been convicted of a sexual offences against one of their own nieces as follows:

   …it does raise very serious questions about capacity to protect … it also, in my mind, raises questions about – about the weight that’s given to children’s disclosures and – and if a child discloses there’s a conviction and then – and then the family continues to maintain contact, you know, I could only imagine what a confused and mixed message that must give that child at least.

10. In my view the capacity of each of the parents to meet the children’s needs is a very weighty consideration, associated with the need to protect the children from harm, which favours the fathers’ proposals as the least detrimental to the children of the available options.

Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent

1. Each of the five children, who are still quite young, have had a difficult and disrupted lifestyle characterised by their parents making poor decisions with little insight into the impact of those decisions upon them.

2. G and H have had the greatest stability in their lives, in that they have lived at all times with their father, and up until recently had lived in one home and attended the one school. Recently Mr Backford obtained more secure public housing and it would seem that the considerable stability he has provided to these children will continue. He has also strengthened his parenting capacity to some extent by completing a parenting course as recommended. It is not surprising in these circumstances that G and H appeared to Dr F to be the more emotionally robust of the children. She described them as moving readily between their parents and showing no signs of separation anxiety.

3. P has also had the constant figure of her father, Mr Keys, in her life. However, her circumstances have not been entirely stable, as Mr Keys introduced his new partner into P’s life when she was six and prior to this P had moved around a little with her father. P has also been to some extent neglected by her father and her personal circumstances were complicated by the manner in which her mother re-emerged in her life. It appears that P has had some ongoing difficulties in her relationship with each of her parents. Recently she was moved some distance from her paternal grandparents to whom she appears to have been quite attached, and now lives in a new environment, a considerable distance from her old home.

4. C and B whose living arrangements are the subject of this application have had the most disruption in their lives.

5. B was six months old when her father, Mr Keys, disappeared from her life and she also lost contact with her only sibling. Initially B was wary of Mr Backford and just as she began a relationship in which Mr Backford was becoming her psychological father, she then lost contact with him and her brothers. B then spent some difficult and unstable years in U Town where she lived in many different households with various family members, her mother was often emotionally unavailable to her and she regularly missed school. After B rekindled her relationship with her father and sister, her mother again moved her to another location, further away from all other family members to live with a man who was previously unknown to her.

1. C exhibits separation anxiety which is indicative of a poor attachment to her mother. This poor attachment appears to associated with the chaos and disruption in which C was raised, particularly at the time and subsequent to separation from her father. She is at the time of delivery of this judgment living with her father in a predominantly male household after having lived with her mother and sister all her life.

Aboriginal or Torres Strait Islander background and the children’s right to enjoy their culture

1. All of the children are Aboriginal through their maternal side. Dr F refers to “cultural issues” a number of times in her assessment and oral evidence and submissions on behalf of the mother were to the effect that the children would be denied the right to enjoy their culture in each of the father’s households.  

2. Section 4 of the Act provides as follows:

   "Aboriginal or Torres Strait Islander culture" in relation to a child:

   (a)  means the culture of the Aboriginal or Torres Strait Islander community or communities to which the child belongs; and

   (b)  includes Aboriginal or Torres Strait Islander lifestyle and traditions of that community or communities.

3. The mother did not adduce any evidence with respect to the culture of the Aboriginal community to which the children belong. There is also very little evidence of the lifestyle and traditions of this community. The mother simply states in her affidavit under the heading of “Aboriginality” “my family are … who are indigenous to the … area. We have a close family where we often co-parent our children”. The issue of co-parenting for these children has been dealt with at length in this judgment.

4. Although Mr Keys and his wife are also Aboriginal people, neither of them identify as such. Mr Backford is not Aboriginal and the children have not enjoyed their Aboriginal culture in his care.

5. Although the mother has not provided any information in relation culture the children would clearly have a greater likelihood of enjoying the culture of that community in her care than with their respective fathers. However, in my view, in this matter, the issues relating to the enjoyment of Aboriginal culture are less weighty than matters concerning the protection of the children from harm and parental capacity.

Attitude to the children and responsibilities of parenthood demonstrated by each parent

1. I have no doubt that each of the parents genuinely love their children and believe that the orders they propose are in their best interests.

2. Unfortunately Mr Keys and the mother in particular have had at times poor regard for the responsibilities of parenthood. The circumstances in which the mother lost contact with P, Mr Keys lost contact with B, and the mother moved the children, first to U Town and then to Q Town and Mr Keys’ move to the Central Coast have been dealt with under other considerations.

3. The mother’s failure to ensure that the children do not come into contact with Mr I in any circumstances including through her own extended family has been dealt with at length and reflects very poorly on her attitude to the responsibilities of parenthood.

Family violence

1. For the reasons previously given, I am of the view that there is a real risk that the children may be exposed to family violence perpetrated by Mr E in the mother’s household especially in association with misuse of drugs and/or alcohol. The mother shows little insight into the possibility that this may occur and simply does not address this issue.

2. I am not satisfied that either Mr Keys or Mr Backford have perpetrated family violence against the mother other than the instances referred to.  There is no evidence that the children have been exposed to family violence in either of their father’s households or that there is an unacceptable risk that they will be exposed to family violence in those households under the orders proposed by each of the fathers.

3. An application of this consideration supports the orders proposed by each of the fathers.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children

1. Litigation concerning these children and its associated instability has been ongoing for almost four years. There has been considerable disruption and conflict between the parents to which the children have been exposed. There has also been some significant instability in B and C’s living arrangements associated with the proceedings.

2. In these circumstances an order which is less likely to lead to the institution of further proceedings would be preferable as it would reduce the conflict and instability associated with ongoing litigation.

3. The order that the mother proposes to mitigate the unacceptable risk of harm associated with contact with Mr I, in my view, is likely to lead to the institution of further proceedings in relation to the children. While I am not critical of the fathers for continuing to maintain concern about the possibility that Mr I had come into contact with the children, it appears that due to the high levels of mistrust each of them has in the mother and her protective capacity they embarked on making their own enquiries as to this issue which inevitably involved questioning the children. This then led to the fathers each withholding B and C, reopening the proceedings and the mother seeking a Recovery Order. In my view this is likely to continue to occur in the event that similar orders are made on a final basis. This is a matter to which I attach some weight in the proceedings, though it is not determinative.

Parental responsibility

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child. In Goode & Goode[9] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.

   [9] (2006) FLC 93-286

2. In this matter, the mother seeks an order of equal shared parental responsibility and each of the fathers seek sole parental responsibility for their own children.  The ICL supports the mother’s position as to parental responsibility.

3. Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).

4. As outlined above, I am not satisfied that any of the parents has engaged in abuse of the children or has perpetrated family violence.

5. There is however no evidence that the mother and either Mr Backford or Mr Keys have the capacity to make decisions jointly. 

6. Since separation the parents have not acted cooperatively and have continued to make major decisions for the long term care and welfare of the children unilaterally.  For example, the mother unilaterally removed C and B to a town which was a significant distance away from B’s father, to live with man with whom she had been in a relationship for one week.  There have been a number of occasions where Mr Backford and the mother have not been able to cooperate and make effective joint decisions to ensure that the children spend time with the non-residential parent and their siblings.  Mr Keys made a unilateral decision to relocate to the Central Coast at a time when these proceedings were incomplete which involved an additional change in P’s schooling and further decisions about her high school education which he made unilaterally rather than jointly with the mother.

7. In circumstances where the court has made significant findings about a risk of harm to the children in the care of the mother, and findings concerning her lack of insight and protective capacity with respect to that risk, it would not be tenable or realistic to expect that either Mr Backford or Mr Keys could jointly make major decisions with her with respect to the long term care and welfare of their children.  In these circumstances I am satisfied that it would not be in any of the children’s best interest for their parents to have equal shared parental responsibility for them.  The only practicable and workable outcome is for sole parental responsibility to be given to the parent with whom each of the children is to live.

Conclusion

1. Having regard to all of the factors in relation to the best interests of each of the children, I am of the view that the orders proposed by Mr Keys are those which are in the best interests of P and B and those proposed by Mr Backford are in the best interests of for G, C and H.

2. While I have found that Mr Keys was responsible for neglecting P to some degree over a number of years and that there is a risk that he will not provide therapeutic support to assist B in managing her separation from her mother and integration into his household, these are not the most significant risk factors that arise under the competing proposals for B. A far more significant and as I have found it, unacceptable, risk is that B and the other children may be brought into contact with Mr I and sexually abused by him when in the care of the mother or when spending time overnight with the mother in Q Town.  In addition, there is also the risk that B may be exposed to family violence perpetrated by Mr E when in the care of the mother.

3. So far as C is concerned, there are some concerning aspects of Mr Backford’s parenting, especially in relation to his capacity to integrate C into his household given the likely grief C will experience at separation from her mother and B. However, these shortcomings in Mr Backford’s care are outweighed by the unacceptable risk of harm to C in the care of the mother in relation to being sexually abused by Mr I and with respect to exposure to family violence.

4. It was the view of Dr F, whose opinions and recommendations I have otherwise accepted, that on balance it would be less detrimental for C and B to remain in the mother’s household. Since Dr F gave evidence the proceedings were re-opened and findings were made that the mother allowed the children to come into contact with Mr I.  For the reasons given, I am of the view that the risk of sexual harm posed by Mr I and the exposure to family violence in the mother’s household are the most significant of the best interest considerations. These considerations and the others referred to require that the orders proposed by Mr Backford and Mr Keys be made in the best interests of the children.

5. Accordingly I make the orders set out at the forefront of these Reasons for Judgment

I certify that the preceding three hundred and twenty-three (323) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 1 April 2016.

Legal Associate: 

Date:  1 April 2016