Backford & Backford and Anor

[2017] FamCAFC 1

FAMILY COURT OF AUSTRALIA

BACKFORD & BACKFORD AND ANOR [2017] FamCAFC 1

FAMILY LAW – APPEAL – CHILDREN – With whom a child lives – With whom a child spends time – The trial judge made orders for the children to live with their respective fathers and spend a minimum of three hours with the mother every three weeks – The trial judge did not fail to have regard to the Aboriginal heritage of the children; fail to afford procedural fairness; err in allowing the trial to be re-opened; demonstrate apprehended bias; fail to have regard to the factors in s 60CC of the Family Law Act 1975 (Cth); or make findings that were not open on the evidence – Appeal dismissed – No costs orders sought..

Family Law Act 1975 (Cth) – s 60CA, s 60CC(3)(h), s 60CC(6), s 61F, s 65DAA
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

CDJ v VAJ (1998) 197 CLR 172
Donnell & Dovey (2010) FLC 93-428
Gronow v Gronow (1979) 144 CLR 513
Johnson v Johnson (2000) 201 CLR 488
Vakauta v Kelly (1989) 167 CLR 568

APPELLANT: Ms Backford

1^ST RESPONDENT: Mr Backford

2^ND RESPONDENT: Mr Keys

FILE NUMBER: PAC 5703 of 2012

APPEAL NUMBER: EA 64 of 2016

DATE DELIVERED: 12 January 2017

PLACE DELIVERED: Perth

PLACE HEARD: Sydney

JUDGMENT OF: Thackray, Kent & Cronin JJ

HEARING DATE: 5 December 2016

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 1 April 2016

LOWER COURT MNC: [2016] FamCA 206

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Conte-Mills with Ms Rebehy

SOLICITOR FOR THE APPELLANT: Lyons Barnett Kennedy

COUNSEL FOR THE 1^ST RESPONDENT: Ms Shearman

SOLICITOR FOR THE 1^ST RESPONDENT: Legal Aid NSW

COUNSEL FOR THE 2^ND RESPONDENT: Mr Maddox

SOLICITOR FOR THE 2^ND RESPONDENT: Sarah Bevan Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Morley

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

Orders

1. The appeal be dismissed.

2. There be no orders as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 64 of 2016
File Number: PAC 5703 of 2012

Ms Backford

Appellant

And

Mr Backford

1^st Respondent

And

Mr Keys

2^nd Respondent

REASONS FOR JUDGMENT

1. By an Amended Notice of Appeal filed on 7 October 2016, Ms Backford appeals against orders made by Hannam J on 1 April 2016 concerning her five children. The fathers of the children, Mr Backford and Mr Keys, and the Independent Children’s Lawyer oppose the appeal. 

2. The two girls who are the main focus of this appeal were living with the mother when the proceedings commenced.  Two other children were living with Mr Backford, and the remaining child was with Mr Keys.  As a result of her Honour’s orders, the girls who had been with the mother commenced living with their fathers, thus separating them from each other.  The children living with Mr Keys were permitted to spend three hours each third week with the mother, while those living with Mr Backford were permitted to spend the same time with the mother, but on the day after her time with Mr Keys’ children. 

3. While the outcome was in many respects unfortunate, all options available to the trial judge were unsatisfactory.  For the reasons that follow, we consider that her Honour’s orders were a proper exercise of her discretion and that error has not been demonstrated.

The family constellations

1. Mr Keys and the mother are the parents of P and B, who were aged 12 and 10 years respectively at the time of judgment.  The mother and Mr Keys separated for the final time when B was six months old.  Thereafter, P largely lived with Mr Keys, and B largely lived with the mother.

2. Mr Backford and the mother are the parents of G, C and H, who were aged eight, seven and six years at the time of judgment.  The mother and Mr Backford commenced a relationship soon after her relationship with Mr Keys ended.  The mother and Mr Backford were married in 2007.  They separated for the final time in 2012.  Thereafter, G and H lived with Mr Backford, while C lived with the mother.

3. The mother now lives with Mr E, who had very recently left prison when they commenced their relationship in 2014.  Mr Keys has been in a relationship with his present wife since 2010, and they now have a daughter.  Mr Backford has not been in a regular relationship since separating from the mother. 

The trial and the re-opening

1. The trial took place over seven days in July 2015.  At the time, Mr Keys was living in T Town in North-Western New South Wales, although he had plans to move to the Central Coast.  The mother was living with Mr E in Q Town.  Mr Backford was living in Sydney.

2. The mother brought B and C to Sydney for the trial.  During the first part of the trial, details emerged of contact the mother had permitted the girls to have with Mr I, who is a paedophile.  Upon hearing this evidence, her Honour ordered that the girls stay with their respective fathers for the rest of the trial.  However, at the end of the trial, interim orders were made permitting them to return to their mother, provided she did not allow them to come into contact with Mr I and certain relatives, including the mother’s sisters.

3. Final submissions were made in September 2015, following which her Honour reserved her decision.  In November 2015, Mr Keys moved to the Central Coast, as foreshadowed.  Although there had been discussion at trial about the mother moving to the Central Coast or Sydney, that did not eventuate.

4. While judgment was reserved, B and C visited their fathers during the summer holidays.  During this time, Mr Backford applied to re-open, claiming that the mother had breached the interim injunctions made at the end of the trial.  The re-opening was allowed, and B and C were permitted to remain with their fathers until judgment was delivered.

The trial judge’s reasons

1. The trial judge found that there would be advantage to the children in having a meaningful relationship with both parents, but concluded that there was an unacceptable risk of abuse by Mr I if they lived with the mother.  Her Honour also concluded that there was a real risk that the children would be exposed to family violence perpetrated by Mr E in their mother’s home.  

2. While her Honour had concerns about the fathers’ parenting, and the impact on B and C of a change in the care arrangements, she considered these were outweighed by the risks associated with the children being left with the mother.  She therefore concluded that B and C should each live with their father, and that the fathers should have parental responsibility, as the parents could not make decisions jointly.

3. The fathers’ proposals for severe restrictions on the mother’s time with the children were accepted.  The reasons for this will be explained later.

The grounds of appeal

1. There were six grounds of appeal.

Ground 1 – Failure to have regard to Aboriginal culture

1. By this ground it is asserted that (errors in original):

   The [trial judge] either failed to have proper regard, or give adequate weight to the provisions of section 60CC of the Family Law Act 1975 (the ‘Act’) concerning the impact of a change of circumstances on the children the subject of the proceedings, the Aboriginal heritage of the children and maternal Aboriginal kinship relationships. In particular, the [trial judge] erred:

   a)Impermissibly, and mistakenly, devaluing the children’s aboriginal culture and failing to have regard or attach sufficient weight to the provisions of sections 60CC(3)(h) and 60CC(6) of the Act, and children’s right to enjoy their culture and cultural connection

   b)Dismissing the evidence, or not considering evidence about culture because the evidence arose during cross-examination of the Mother and her partner.

   c)Failing to consider or address section 61F of the Family Law Act 1975 (the ‘Act’) when making final orders for parental responsibility.

2. The mother is an Aboriginal woman of the HH Nation, and Mr E is also Aboriginal.  Mr Keys and his wife have some Aboriginal lineage, but do not identify as Aboriginal people.  Mr Backford is not Aboriginal.

3. At the outset of the trial, the trial judge noted that the mother had “wanted to raise particular issues to do with Aboriginality and Aboriginal culture”, and that the proceedings had “languished for some time” to permit her solicitors to obtain evidence from an expert in such matters (transcript, 20 July 2015, p 6).  However, as her Honour observed, the mother had not provided any evidence, apart from “two sentences” in her affidavit. 

4. We set out below the mother’s affidavit evidence on the issue. At the time, she was living in Q Town, which is about a three and a half hour drive from T Town, where Mr Keys was living, which in turn is about a 30 minute drive from U Town, where the mother lived before moving to Q Town.

   117.My family are [of the HH Nation] who are indigenous to the [II Region]. We have a close family where we often co-parent our children.

   118.[P] is aware she is of Aboriginal heritage. She knows little about her culture. We have a-lot of relatives in [T Town].

   119.[Mr Keys] does not recognise my extended family and has ignored family members that have approached him and [P].

   120.     I feel [Mr Keys] is denying [P] access to her culture.

5. When setting out the law, her Honour recorded that the principles underlying the Family Law Act 1975 (Cth) (“the Act”) include that “(except when it is or would be contrary to a child’s best interests) … children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture)”. Her Honour dealt with this topic in these terms:

   109.Dr [F] [the Family Consultant] 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.

   …

   112.The mother is a 31 year old [HH Nation] 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 … who gave evidence in the proceedings. 

   …

   114.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.

6. Later, when dealing with s 60CC(3)(h) of the Act, her Honour said:

   298.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. 

   …

   300.The mother did not adduce any evidence to with respect to the culture of the [HH Nation], being the Aboriginal community to which the children belong. There is also very little evidence of the lifestyle and traditions of the [HH Nation]. The mother simply states in her affidavit under the heading of “Aboriginality” “my family are [of the HH Nation] who are indigenous to the [II Region]. 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.

   301.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.

   302.Although the mother has not provided any information in relation to the culture of the [HH Nation] 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.

7. We find nothing in these reasons to support the assertion that the trial judge devalued the children’s Aboriginal culture.  On the contrary, her Honour was alive to the importance of the issue.  Indeed, reference to the transcript demonstrates that it was her Honour who elicited much of the evidence given on the topic.  However, while her Honour clearly accepted that the children would have greater likelihood of enjoying their Aboriginal culture if they remained with their mother, this factor was considered “less weighty than matters concerning the protection of the children from harm and parental capacity”.  This finding was entirely open to her Honour.

8. The mother contends that insufficient weight was given to s 60CC(3)(h) and s 60CC(6) of the Act, which emphasise the rights of Aboriginal children to maintain a connection with their culture and to have the opportunity to explore and develop a positive appreciation of it. However, while recognising the importance of these matters, the Act does not mandate that orders must be made which protect these rights. Instead, s 60CA provides that “in deciding whether to make a particular parenting order … a court must regard the best interests of the child as the paramount consideration”. This involves a holistic assessment and balancing of all of the child’s rights and needs.

9. The Act directs the court to have regard to a wide variety of matters when determining what is in a child’s best interests. These are divided by s 60CC into “primary considerations” and “additional considerations”. One of the two primary considerations is “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”. The Act requires this consideration be given greater weight than the other “primary consideration”, namely “the benefit to the child of having a meaningful relationship with both of the child’s parents”. While the Act is silent as to the weight to be given to the “additional considerations”, the clear intent of the legislature is that child safety is a matter of great importance.

10. Ultimately, the first limb of this ground goes only to the great weight the trial judge placed on the safety of the children.  Therein lies the difficulty for the mother, since “an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight”: Gronow v Gronow (1979) 144 CLR 513 at 520.

11. Equally importantly, as was said in CDJ v VAJ (1998) 197 CLR 172 at [152]:

    It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions.

12. The second limb of the complaint is that the trial judge erred in dismissing, or not considering, evidence about the children’s Aboriginal culture because the evidence arose during cross-examination of the mother and her partner. 

13. We accept that there is at least some foundation for this proposition, since her Honour’s reasons make no reference to the following evidence given by the mother (which was elicited through questioning by her Honour at transcript, 23 July 2015, pp 341–342):

    So only you as a [HH Nation] person can make sure that a child has the advantages of a [HH Nation] culture?‑‑‑Yes.  That is correct.  Yes. 

    And how have you done that to date?  How have you given all of your children the advantages of their culture and their identity?‑‑‑By sitting them down with my grandfather.  He tells a lot of stories of what he went through with his mother as a stolen generation as well and what their culture is about.   

    So he educates them about those aspects of his culture?‑‑‑Yes, yes.

    Is that the only way in which you have your children take advantage of their Aboriginal culture?‑‑‑Yes.  Because my grandfather is the only elderly family left- family member left in the family. 

14. Importantly, the mother conceded that while she had taken C and B to visit her grandfather regularly when they were living in U Town, by moving to Q Town some six months previously, she had “moved them away from the only connection with their Aboriginal identity” (transcript, 23 July 2015, p 342).  Furthermore, the mother said her grandfather had been sick, and there had accordingly been no opportunity for interaction with him.  She did say that if the girls stayed with her, she would be willing to travel back to U Town to visit her grandfather.  The mother also said that when her grandfather passed on, her uncle would probably continue the tradition of telling family stories, although she acknowledged that her uncle lived in Sydney.

15. Mr E also gave evidence in cross-examination about how C and B were aware of matters relevant to their heritage, including knowledge of their totem, food gathering practices and collecting significant rocks.  Again, much of this evidence was elicited by questioning from the trial judge (transcript, 23 July 2015, pp 410–411).

16. While the trial judge did not make reference in her reasons to the evidence given during cross-examination, the fact remains that her Honour accepted that the girls would have greater opportunity to learn about their culture if they were to remain with their mother.  Her reasons do not discount the importance of this, nor did she find that the mother would not ensure the children had an opportunity to learn about and respect their culture.  Instead, she concluded that matters relating to the children’s safety were of greater importance.  That conclusion was clearly open to her Honour.

17. The third limb of this ground is that her Honour failed to address s 61F of the Act “when making final orders for parental responsibility”.

18. Section 61F provides as follows:

    Section 61F Application to Aboriginal or Torres Strait Islander children

    In:

    (a) applying this Part [i.e. Part VII] to the circumstances of an Aboriginal or Torres Strait Islander child; or

    (b) identifying a person or persons who have exercised, or who may exercise, parental responsibility for such a child;

    the court must have regard to any kinship obligations, and child-rearing practices, of the child’s Aboriginal or Torres Strait Islander culture.

1. It will be seen that s 61F is not confined to the making of an order for parental responsibility. Rather, it has application to the whole process under Part VII of the Act, and to that extent the trial judge was obliged to take it into account in making all of her orders. It is true her Honour did not make express reference to s 61F, but this was not obligatory, provided she had regard to relevant Aboriginal kinship obligations and child‑rearing practices: Donnell & Dovey (2010) FLC 93-428 at [184].

2. There was no evidence of these obligations and practices, apart from what we have mentioned above, and no submissions were made about s 61F, or how it should be applied. Nevertheless, the trial judge accepted that the co-parenting of children by family was a characteristic of Aboriginal culture. In doing so, her Honour had regard to one of the most significant matters underpinning s 61F. The Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Act2006 (Cth) relevantly noted that (emphasis added):

   The purpose of [s 61F] is to ensure that the unique kinship obligations and child-rearing practices (such as the involvement of extended family) of Aboriginal and Torres Strait Islander culture are recognised by the court when making decisions about the parenting of an Aboriginal or Torres Strait Islander child. This provision is consistent with other amendments to facilitate greater involvement of extended family members in the lives of children. 

3. Her Honour accepted the mother’s evidence of the involvement of her family in the care of the children, but she also identified the risk her family posed to the children by the pursuit of their longstanding friendship with Mr I.  Her Honour’s desire to minimise this risk does not constitute appealable error.

4. Ground 1 was also used as a vehicle to advance more general complaints about the making of the orders for the fathers to have parental responsibility.  We see no error in her Honour’s treatment of this issue, especially given that there is no challenge to the finding that the parents are unable to make decisions jointly. 

5. The mother also complains that the trial judge did not make an order requiring the fathers to inform her of important decisions made about the children.  Although counsel for Mr Backford suggested in closing submissions that such an order should be made, no one formally sought such an order, and the failure of her Honour to make that order can therefore not be said to constitute error. 

6. Ground 1 therefore fails. 

7. Before passing from this issue, we feel compelled to say something about the mother’s original Notice of Appeal, to which was annexed a letter of report that the mother’s trial counsel had sent to her instructing solicitor after delivery of judgment.  The following passage appeared in the letter:

   These proceedings demonstrated, in my opinion, the most blatant example of bias and lack of procedural fairness I have ever experienced on the part of any Judge.  I believe this is racially motivated as the mother and her partner are both Aboriginal.

8. We will refrain from making definitive comment about this, since trial counsel did not conduct the appeal, and therefore has not had an opportunity to explain this scandalous assertion.  However, we can say that the letter demonstrates a fundamental misunderstanding of her Honour’s judgment.  It also fails to recognise what our own reading shows to be a real appreciation by her Honour of the importance of culture to indigenous people and the sensitivities involved.  For example, see transcript 20 July 2015, p 41, and see her Honour’s interventions in the cross-examination of the fathers (and other witnesses) to explore their appreciation of the importance of the children’s heritage.

Grounds 2 and 5 – Procedural fairness and error relating to re-opening

1. Ground 2 asserts that the mother “was not afforded procedural fairness as a result of the manner in which the [trial judge] conducted the proceedings”. 

2. Much of this complaint concerned the re-opening in February 2016, which is also the subject of Ground 5, by which it is asserted that:

   The [trial judge] erred at law by dealing with the re-opening as an application to adduce further evidence when the issues related to allegations of contraventions or the evidence did not raise any new issues and in:

   (a)allowing the matter to be re-opened and limiting the areas for evidence and cross examination to four discrete subjects

   (b)dealing with this application while reserved and not referring this application to be dealt with by a different Judicial officer

   (c)dealing with this as an application to re-open and adduce further evidence rather than as a contravention application

   (d)refusing the Mother’s application for recovery of [C] and [B] who had been withheld contrary to orders in force at the time 

3. Before dealing with the re-opening issue, we will first consider other aspects of the procedural fairness complaint which were not particularised in Ground 2, but which emerged from the submissions. 

Not requiring the fathers to give evidence first and in the absence of each other

1. It is asserted that her Honour failed to afford procedural fairness by refusing an application for the fathers to give evidence first and in the absence of each other.  This application was made at the commencement of the re-opening by Ms Friedlander, who was counsel for the mother at trial (transcript, 26 February 2016, p 4):

   MS FRIEDLANDER:   Your Honour, may I ask in these proceedings, seeing that there are two people who are accusing the mother, is it possible to have one witness at a time until they have given their evidence?

   HER HONOUR:   I’m sorry?

   MS FRIEDLANDER:   Well, as you would do in a criminal court, whereby evidence is given by each person serially and they’re not allowed into the court until their evidence is given.

   HER HONOUR:   But these aren’t criminal proceedings and the word “allegation” isn’t what I’m hearing.  I’m hearing evidence about best interests of the children.  They’re parenting proceedings.  They’re usual parenting proceedings.  And some of the parties are also witnesses, exactly the same as in other parenting proceedings.  For example, to some extent with – as far as Ms [Keys] goes, Mrs [Keys], she’s not a party to the proceedings, she’s a witness, and so she wouldn’t be present in court.  That’s the usual ‑ ‑ ‑

   MR MADDOX:   I have asked her to stay outside, your Honour.

   HER HONOUR:   Yes.  But in terms of the people who are both witnesses and parties, it will just be the usual procedure in parenting proceedings.

   MS FRIEDLANDER:   Thank you, your Honour.

2. A little later, the following exchange occurred (transcript, 26 February 2016, pp 6–7):

   HER HONOUR:   All right.  In these circumstances in my view, it may be appropriate to start with the mother because the contentious evidence relates to – in my view, it would be appropriate in these circumstances to start with the mother and Mr [E].

   MS FRIEDLANDER:   All right. 

3. In our view, everything her Honour said here was perfectly orthodox.  These were not criminal proceedings.  Contrary to the mother’s submissions (both at first instance and on appeal), they were not contravention proceedings.  They were part and parcel of ongoing parenting proceedings.  The fathers were parties, and hence entitled to hear the evidence of all witnesses.  If it was to be suggested that their evidence might be affected by hearing the other’s evidence, then that was a matter for cross-examination and submission. 

4. The crucial evidence given by the fathers during the re-opening related to disclosures made by the children, inter alia, about coming into contact with Mr I while living with the mother after orders had been made to stop that occurring.  The opportunity for the fathers’ evidence to be contaminated by hearing each other’s testimony would have been significantly reduced by the fact that their evidence-in-chief of their conversations with the children had already been given on affidavit.  This also disposes of the mother’s complaint that she was denied “the opportunity to hear and test the evidence of the allegations against her prior to her giving evidence”.  She already knew what the fathers were going to allege, and indeed she had filed her own affidavit setting out her version of what had occurred. 

5. The real question on the re-opening was not what the children had said to their fathers about what had happened when they were with their mother, but what had actually happened.  We consider it likely this is what her Honour had in mind when she made the reference to the “contentious evidence” when explaining why she thought the mother and Mr E should be cross‑examined first.  Ultimately, it was going to be the veracity of that evidence that would determine the crucial findings.  Someone had to go first and we see nothing remarkable in her Honour directing that it would be the mother.

Various interventions by the trial judge

1. The mother’s Summary of Argument gave 12 examples of interventions by the trial judge which were said to demonstrate that her Honour had “restricted and hindered the presentation of the Mother’s case … such that the evidence could not be properly tested resulting in a denial of procedural fairness”.

2. The first of the examples was that the trial judge had prevented counsel from completing her cross-examination of the Family Consultant, Dr F.  In order to provide context, it should be noted that Dr F recommended that, subject to any further evidence that might come before the court, B and C should remain with the mother.  In other words, it was the fathers who primarily needed to challenge her report.  Furthermore, the trial judge, at [322], effectively accepted Dr F’s opinion (based on the information that Dr F had available to her).  Thus, it is difficult to understand how the mother’s case was adversely affected by the alleged curtailment of cross-examination of Dr F by the mother’s counsel.

3. In any event, the cross-examination was not improperly curtailed, as the following examination of the transcript will illustrate. 

4. Dr F was called at 10.21 am on 27 July 2015. when the trial judge said (p 544):

   HER HONOUR:   Thank you very much for making arrangements to come, especially in the circumstances where everything was a bit fluid and constantly changing…

5. Counsel for Mr Backford then cross-examined Dr F, commencing at 10.22 am (p 545).  After the cross-examination had gone on for some time, the following exchanges occurred (p 561):

   MS SHEARMAN:   Your Honour, I note the time;  were you ‑ ‑ ‑

   HER HONOUR:   I was just hoping if you – if one person was able to finish that we could then take a break.  But if you’re not able to I don’t want to.  I know I’ve interrupted most of your questions myself.

   MS SHEARMAN:  I’ve probably got another 10 minutes that’s ‑ ‑ ‑

   MS FRIEDLANDER:   Your Honour, could I suggest, there are four of us that need to cross-examine Dr [F], I assume she is only here until one, that we don’t take a break in order to allow us to all get a chance to do so?

   HER HONOUR:   Well, it may be that no one is going to be as long as the one before and that the – there are obvious areas that need to be questioned.  I think we need to have some sort of break but I think perhaps we will press on for another 10 minutes.  I just don’t think we can sit right all the way through until one.  I don’t think that’s – but we will take a break a little bit later.

6. It is unclear precisely when Mr Backford’s counsel advised that she had completed her cross-examination, but her Honour then questioned Dr F about Aboriginal cultural issues.  At around 11.48 am the following further exchange occurred (p 565):

   [HER HONOUR] Thank you.  Perhaps if we just take a short break now, or did people want to press on, and I’m thinking about Dr [F] as well pressing on.  I – but there’s the fine line between ‑ ‑ ‑

   MR COOK:   Yes.

   HER HONOUR:   ‑ ‑ ‑ it is – it is 1 o’clock that you’re available until?‑‑‑Yes, I – I have clients this afternoon.  So I do need to get away.

   All right.  What would you prefer to do?‑‑‑Look, I mean, I – I can – I can continue because I – you know, I would like to – to leave as soon as I can rather than – but I – I mean, I’m happy to be – you know, to go with – with what works best for the court.

7. After a 10 minute adjournment, the mother’s counsel commenced cross-examining at 11.58 am (p 565).  Toward the end of the questioning permitted by the trial judge (a little over an hour), the following exchange occurred (pp 579–580):

   MS FRIEDLANDER:   The – it’s unlikely – well, it’s unlikely that a decision will be given straight after the evidence is finished in this court case, and so it’s likely that her Honour is going to have to be faced with giving interim orders.  What, in your opinion, would be – well, would you favour that the children went to their respective fathers while a final decision was being made – and that could be over many months – or would you favour, for instance, perhaps the mother giving strict undertakings as to alcohol, supervising the children, exposing the children, obviously, to [Mr I], school ‑ ‑ ‑

   HER HONOUR:   Ms Friedlander, if I can just stop you.

   MS FRIEDLANDER:   Yes.

   HER HONOUR:   I don’t think this is an appropriate question to ask the witness.  These are the ultimate submissions [sic, semble decisions] that I have to make on relation to the – I won’t be assisted by this.  I don’t know if the witness can answer it ‑ ‑ -

   MS FRIEDLANDER:   All right.

   HER HONOUR:   ‑ ‑ ‑ but I don’t want that question to be asked.

   MS FRIEDLANDER:   Your Honour, I note the time.  I also just want to note that I have not done all of my cross-examination.  And, of course, my friends have had no chance whatsoever. 

   HER HONOUR:   Well, Dr [F], do you – you have to go now, do you?‑‑‑Well, how – how much – how ‑ ‑ ‑

   Well, if you are able to stay any longer we will just keep sitting.  But if you have to go, you have to go?‑‑‑Well, my appointment is at 2.30, which means I need to be at [Town JJ] at 2.30.

   Right.  You also need to have lunch.  What are you able to do in terms of continuing to sit, if at all?‑‑‑Well, I guess I need to leave by quarter to 2 – quarter to 2.

   All right.  We won’t sit that long.  But I’ve got to give Mr Maddox an opportunity.  I’m not sure how many questions Mr Cook is going to want to ask, or whether most things have been covered or whether they may have been covered by the time – Mr Maddox, if you can start, and if you would ‑ ‑ ‑

   MR MADDOX:   Thank you, your Honour.

   HER HONOUR:   ‑ ‑ ‑ I suppose go directly to what you consider are ‑ ‑ ‑

   MR MADDOX:   Has Ms Friedlander finished, your Honour?

   HER HONOUR:   No.  No.  I’m going to move on, simply because you haven’t had any opportunity yet, and Mr Cook hasn’t either.  And it may be that those issues – I mean, we’ve got a limited amount of time and you haven’t asked any questions yet.

8. There was no objection by counsel for the mother to this course, and counsel for Mr Keys then cross-examined from 1.00 pm until 1.28 pm when he announced, “Your Honour, I will finish there” (p 588).  Although we cannot be sure, the choice of words suggests that he was not “finished”, but recognised the timing issues that had emerged from the earlier remarks, and the fact that counsel for the Independent Children’s Lawyer was yet to cross-examine.

9. Counsel for the Independent Children’s Lawyer then cross-examined until the following exchange occurred (p 592):

   HER HONOUR:   Mr Cook, I don’t know how many more questions you have got but I’m very worried about the time and Dr [F] really has to go.

   MR COOK:   Well, I certainly don’t want the doctor to come back again, your Honour…

10. Counsel for the Independent Children’s Lawyer then continued his cross-examination of Dr F for a short while, when the following exchange occurred (p 592):

    HER HONOUR:   Thank you.  Do you have to go now?‑‑‑I have just got maybe about five minutes.

    All right.  Ms Friedlander, you can have five minutes.  Thank you.

11. Ms Friedlander then began cross-examining again at 1.42 pm.  Having asked two questions, she said, “Thank you, your Honour” (p 593).  Dr F was then excused at 1.45 pm, without a lunch break having been taken.  At no point in the process did the mother’s counsel complain about being limited in her cross-examination.  Nor were we told what additional issues counsel for the mother might have wanted to cover, bearing in mind that the witness was recommending the outcome sought by her client. 

12. We see nothing here to suggest a denial of procedural fairness.  Her Honour was dealing as best she could with the burden that trial judges routinely carry in attempting to accommodate an expert witness who, in this instance, had made herself available to give evidence in circumstances where “everything was a bit fluid and constantly changing”. 

13. The second example given was that “on a number of occasions”, the trial judge had asked counsel for the mother “what’s your question going to be”, and had not permitted her to “question the witness or put propositions to test whether he and the other applicant had colluded to bring this [re-opening] application”. 

14. To support this proposition we were given just two transcript references.  Having examined those two parts of the record, we see nothing untoward in her Honour asking what the next question was going to be, especially in light of the fact that, very shortly beforehand, her Honour had appropriately pointed out to the mother’s counsel that she could not permit the limited time available to be used to explore issues that had only a “tenuous connection” with the re-opening (transcript, 26 February 2016, p 57). 

15. The third example related to the refusal of the trial judge to send Mr Backford out of the courtroom so as to permit the mother’s counsel to explain why she wished to ask him a particular question.   

16. The questioning at this stage concerned one of four topics that her Honour had ruled could be the subject of the re-opening, namely the reason the mother did not spend time with G and H during the October 2015 holidays.  It was not in issue that Mr Backford had driven the children 170 kilometres to X Town for the handover, and that the mother was not there.  Mr Backford said he remained at the handover point for over an hour after the appointed time and, when the mother had not responded to a text message, he began his journey back to Sydney.  He claimed that when he was about 15 minutes down the road, the mother telephoned and asked him to stop, to which he responded that he could not because he was on the freeway. 

17. There is more to the story, but the above is sufficient to provide context for the following passage of transcript that contains the ruling which is said to show a denial of procedural fairness (transcript, 26 February 2016, pp 55–57): 

    MS FRIEDLANDER:   You drove to [X Town] Station on 27 September?‑‑‑Yes which her Honour

    And you said it took you about two hours to get there?‑‑‑Sometimes two, sometimes three.

    HER HONOUR:   Mr [Backford], do you now have your driver’s licence?‑‑‑Yes, ma’am.

    You didn’t in the last proceedings?‑‑‑No.

    But you do now?‑‑‑Yes, ma’am.

    Thank you.

    MS FRIEDLANDER:   And is that a red P driver’s licence?‑‑‑Yes, ma’am.

    What’s the maximum speed you can go on a red P?‑‑‑90.

    90 kilometres an hour.  Okay.  And how did you travel, what route did you take?

    HER HONOUR:   Sorry.  What’s the route got to do with the circumstances leading to the noncompliance?

    MS FRIEDLANDER:   Well, because – well, what route did you take going back?

    HER HONOUR:   No.  No.  You can’t just ask the question rather than answer me.

    MS FRIEDLANDER:   Well, could the – then could the witness be asked to leave the court?

    HER HONOUR:   No.  No.  No.  No.  You can tell me what the relevance of the ‑ ‑ ‑

    MS FRIEDLANDER:   Don’t you listen, Mr [Backford].  The relevance is ‑ ‑ ‑

    HER HONOUR:   Ms Friedlander, don’t you give directions to the witness to suggest that – I’m in control in this court and I’m making directions and Mr [Backford] can listen to this interchange.

    MS FRIEDLANDER:   All right.

    HER HONOUR:   Please don’t give directions to the witness.  Now, what is the relevance to the route he took to 1(d)?

    MS FRIEDLANDER:   The relevance to the route he took is taking into account the amount of time he claims that he was back on the road, that would place it where on his route he was.

    HER HONOUR:   That’s not relevant.  I don’t permit that question.

    MS FRIEDLANDER:   Well ‑ ‑ ‑

    HER HONOUR:   I don’t – it’s not relevant to the topic of the noncompliance in the circumstances that your own client concedes.

    MS FRIEDLANDER:   It is relevant, your Honour, about whether or not he could have stopped.  It’s relevant as to whether he could have turned around.  And the mother gave evidence that she asked him to do so and he said he couldn’t possibly stop.

    HER HONOUR:   If you choose to use a limited time that will be given to cross-examination on this topic – I simply can’t permit that for if we explore all of this to this stage with that tenuous connection we will simply never get through them.  I don’t permit that question…

1. Given that it was not in dispute the mother had been over an hour late for the handover and had not responded to a text message from the father about her whereabouts, and given the matter had already been the subject of a seven-day hearing, we see nothing inappropriate in her Honour deciding that the limited time available should not be expended on finding out how far into the return trip Mr Backford had been when the mother asked him whether he could stop.

2. Having given the flavour of the complaints raised under this ground, we deem it unnecessary to discuss seriatim the remaining nine examples.  One more will suffice, namely the assertion that her Honour had “disallowed questions challenging contradictions in the evidence of the two Fathers about the same event”. 

3. We recite below the transcript relied upon in support of  this proposition (the mother’s counsel is cross-examining Mr Backford about what he said in his affidavit about a conversation with P) (transcript, 26 February 2016, pp 49–50):

   MS FRIEDLANDER:   When we go further down in the conversation, [P] says:

   I told Dad.

   Didn’t she?‑‑‑Yes.

   But at paragraph 21, [Mr [Keys]] denies that, doesn’t he?

   HER HONOUR:   What’s the question?

   MS FRIEDLANDER:   Well, I’m asking him to ‑ ‑ ‑

   HER HONOUR:   It’s in the affidavit.

   MS FRIEDLANDER:   Yes.

   HER HONOUR:   But what’s the question?

   MS FRIEDLANDER:   So with regard to whether [P] told [Mr [Keys]] or not, which of them did you think was misinformed?

   HER HONOUR:   It’s not – no.  This witness’s opinion on who he thought was misinformed is not relevant.

   MS FRIEDLANDER:   Well, it goes to his state of mind of believing the statement, your Honour.

   HER HONOUR:   No.  It doesn’t.  I don’t permit that question.

4. This was, in our view, a routine (and indisputably correct) ruling.

5. As counsel for the Independent Children’s Lawyer said in his submissions to us, her Honour was conducting proceedings under Division 12A of the Act, and was therefore “entitled to make directions about the conduct of the hearing, including as to limiting of cross-examination and in relation to the evidence generally, providing the directions do not present a procedural unfairness to a party”. Nothing put in argument persuaded us that there was any denial of procedural fairness. Rather, on our reading, her Honour conducted very difficult proceedings so as to ensure the trial was finished within a reasonable time, with all parties being afforded an adequate opportunity to put their case.

6. Her Honour seems to have done so in challenging circumstances, as appears from this passage (transcript, 20 July 2015, p 22):

   HER HONOUR:   Ms Friedlander ‑ ‑ ‑

   MS FRIEDLANDER:   ‑ ‑ ‑ separation ‑ ‑ ‑

   HER HONOUR:   ‑ ‑ ‑ we’re not in a theatre.  Laughing at ‑ ‑ ‑

   MS FRIEDLANDER:   No.  I understand, your Honour.

   HER HONOUR:   Well, don’t laugh at a witness’s answer and then say, “Let’s try this.”

   MS FRIEDLANDER:   I’m laughing with frustration, your Honour, because  ‑ ‑

   HER HONOUR:   Well, don’t laugh with frustration, please.

   MS FRIEDLANDER:   Yes, your Honour.

   HER HONOUR:   Move on and ask the questions in a professional manner.

7. There was also the following extraordinary passage, while her Honour was asking questions of Mr E (transcript, 23 July 2015, p 428):

   MS FRIEDLANDER:   Well, I – your Honour, I object to your questions ‑ ‑ ‑

   HER HONOUR:   Well, I overrule your objection and I will continue to ask my questions.

   MS FRIEDLANDER:   Thank you, your Honour.

   THE WITNESS:   I don’t know why, your Honour.  I don’t – you know – I can ‑ ‑ ‑

   HER HONOUR:   Ms Friedlander, I have had enough of the snide laughing. 

   MS FRIEDLANDER:   I’m not ‑ ‑ ‑

   HER HONOUR:   I am going to go off the bench and I expect an apology from you for [your] behaviour.

   MS FRIEDLANDER:   You won’t get it, your Honour.  You will not get that apology.

8. And then there was this passage in the closing submissions (transcript, 26 February 2016):

   HER HONOUR:   Ms Friedlander, laughing in the midst of submissions, look, some aspects of your behaviour today have been highly unprofessional.  Would you please desist from doing that.  I don’t – you can – we’re not going to get through this.  At the end you can make – you can say what you wish about particular submissions.  Ms Friedlander what I’m most interested in and it’s very important if you could focus on this, I would be greatly assisted, is where, on your client’s own case, there is information about Mr [I’s] presence in [Q Town] at the relevant time and the suggestion that it would have been impossible for [P] to have made this claim up without having that information which is consistent with your client’s own case.

9. It is unfortunate that it seems valuable time at trial had to be taken up by the trial judge reminding counsel for the mother of her obligation to maintain the standards expected of an officer of the court.  The obligations that exist between bar and bench are reciprocal.  Just as the judge must ensure all parties are afforded procedural fairness, counsel must ensure the judge is treated with the courtesy and respect that underpins our system of justice.

The re-opening

1. We turn now to issues relating to the re-opening, which was a major plank of the procedural fairness complaint.  In essence, it is asserted that her Honour erred by not dealing with the father’s concerns as a contravention application; by not referring the matter to another judicial officer; and by limiting the matters that could be the subject of the re-opening.  It was further asserted that her Honour erred in dismissing the application for a recovery order when B and C were held over by their fathers during the summer holidays. 

2. Counsel who appeared for the mother on Mr Backford’s application to re-open submitted that it was “a contravention disguised as a reopening of the case to adduce further evidence” (transcript, 12 February 2016, p 13).  Her Honour agreed that “it may intrinsically raise a contravention”, but asked, “how does that operate to say that it’s not appropriate to reopen?” (transcript, 12 February, p 14).  Counsel submitted that the mother would be prejudiced because different rules of evidence would apply on a contravention application. 

3. This exchange then followed (transcript, 12 February 2016, pp 16–17):

   HER HONOUR:   So do you accept that the totality of the matters to be covered are matters that directly affect the children’s best interests and the ultimate decision?

   MS REBEHY:   Yes.  I think, your Honour, that I would have to accept that submission. 

   …

   HER HONOUR: … I’m not dealing with a contravention.  The question is not whether she has disobeyed that order … The question is:  has she allowed contact with [Mr I]?  Has she allowed another man to sleep over at the home?  Has she allowed contact between the children and her sisters?  If they were answered in the affirmative, if that was proved in the proper way here, then would you accept that that’s likely to affect the ultimate finding or findings in the matter?

   MS REBEHY:   It must, your Honour.

   HER HONOUR:   Right.  And do you accept that the evidence could not have been, with due diligence and preparation, to have been discovered prior because the events themselves ‑ ‑ ‑

   MS REBEHY:   The events occurred after.

   HER HONOUR:   ‑ ‑ ‑ hadn’t occurred.  Now, do you accept, or can you identify, any detriment to the children if the evidence is admitted and the trial is reopened?

   MS REBEHY:   Your Honour, the only detriment at the moment that I can identify is the children being unilaterally withheld…

   …

   MS REBEHY:   What I would submit, your Honour, is if your Honour is – if the court is inclined to reopen the matter to allow certain evidence, that that evidence needs to be at a standard where the rules of evidence apply, so that the evidence has to be probative and has to be of a similar standard as you would apply in a contravention.  It needs to be at that level.  The evidence needs to have substance, your Honour.  It can’t be fanciful or hearsay, your Honour.  

   HER HONOUR: Why would I be applying this [in] division 12A proceedings? Why would I be applying hearsay – the strict rules of evidence in these proceedings?

   MS REBEHY:   Because of the nature of the allegations.

4. During discussion with counsel about the limits of any re-opening, her Honour said that it would be “far too broad” to allow the mother to adduce evidence about her efforts to improve her parenting and that “if there is a specific issue that she wants to reopen on, there should be an affidavit that goes to that specific issue” (transcript, 12 February 2016, p 19).  Counsel for the mother advised her Honour that “we did not seek to reopen [because] the application is misconceived”, and said she would need to get some instructions if the court was minded to re-open and allow further evidence (transcript, 12 February 2016, p 20).  

5. Counsel for Mr Backford opposed the mother being permitted to give evidence about her efforts to improve her parenting capacity on the basis that she “had the opportunity to adduce evidence after her case closed before the final submissions” (transcript, 12 February 2016, p 21).  Her Honour reiterated that the mother “didn’t seek to reopen on any other topics, and it can’t simply be just added from the bar table” (transcript, 12 February 2016, p 22).

6. Her Honour ultimately granted the application to re-open, but only with respect to the following four issues:

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

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

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

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

7. Nothing that was put to us persuaded us that her Honour erred in limiting the scope of the re-opening.  Nor did she err in not dealing with the matter as a contravention, since there was no contravention application before her.  Counsel for the mother properly conceded before her Honour that the matters to be covered in the re-opening “directly [affected] the children’s best interests and the ultimate decision”.  We are therefore at a loss to understand how it could ever have been thought appropriate for the evidence to be given before another judge when her Honour’s decision remained reserved. 

8. It is unnecessary to consider the complaint about the failure to make a recovery order, since the issue is entirely moot.

9. For all of these reasons, grounds 2 and 5 lack merit.

Ground 3 – Bias

1. By this ground it was asserted that “aspects of the conduct of the hearing by the [trial judge] give rise to a reasonable apprehension of bias”. 

2. The test for apprehended bias is well settled, namely “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”: Johnson v Johnson (2000) 201 CLR 488 at 492. However, it is also well settled that the right to complain about an apprehension of bias can be waived by conduct. As Brennan, Deane and Gaudron JJ said in Vakauta v Kelly (1989) 167 CLR 568 at 572:

   Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object…

3. While there were a number of terse exchanges between counsel for the mother and the trial judge, at no stage was her Honour asked to recuse herself.  Nor was there any suggestion that her Honour had prejudged the question she was required to decide.  In these circumstances, it is now not open to the mother to seek to impugn the judgment on the basis of some apprehension of bias.

4. In our view, the high-water mark of the mother’s case in relation to bias was the interim order made on the third day of the trial providing for B and C to live with their fathers until the end of the trial.  Her Honour explained the basis for this order in reasons delivered at the end of the trial in July 2015:

   4.The matter has been very fluid.  It has been in a state of flux and there has been, it suffices to say, some very dramatic evidence given in the hearing, not limited to, but in particular in relation to matters which have been revealed in the course of cross-examination but were not contained in the mother’s affidavit about various circumstances pertaining to the children who reside with her and, in particular, it suffices to say, issues relating to risk of harm.

   5.In my view the evidence concerning the convicted paedophile, Mr [I], and the mother’s highly dysfunctional sisters and some aspects of her domestic arrangements are extremely concerning. I took the unusual step at the end of the second day when that evidence had been given to make orders for the children to spend what was then thought to be the remainder of the hearing with their fathers, but which was subsequently extended up until today.

   6.It is correct to say that that step was taken because of concerns that I had about a risk of harm and, in particular, the mother’s disarming honesty, in my view, about knowledge, in particular about Mr [I], and yet a seeming inability to take steps to protect her children from Mr [I] and issues to do with her family loyalties and her failure to appreciate, it appears, risk associated with family connections, in particular her sisters – rather to see them as support. 

   7.There was also very concerning evidence about her failure to have really made any inquiries or to exercise what Dr [F] described as “appropriate caution” with respect to the speed with which she moved in with Mr [E] and the quite concerning evidence about Mr [E], not only in relation to the serious offence for which he served a 12 year term of imprisonment but also particularly about his history of family violence. I also agree with the submission made by Ms Shearman, it is very concerning to see that even in custody, he continued to have lapses in relation to substance misuse.

5. Her Honour then went on to say that she had made her order before hearing the evidence of Dr F.  On the strength of that evidence, her Honour decided that B and C should be returned to the mother at the end of the trial, on the basis of injunctions being made with a view to ensuring the children were safe while in her care.  Her Honour explained at [19]:

   So far as the mother’s home is concerned, which I had indicated was the home that gave me the greatest concerns, particularly in the areas that I talked about, to some extent I think that that can be mitigated by various restraints, which the mother has agreed to.  I reiterate that these restraints will only protect the children if in fact they are complied with.  And unfortunately there is no way of knowing whether a number of these restraints will be complied with… 

6. Any suggestion that the making of the interim order during the trial showed her Honour had prejudged the outcome must be seen to have been put to rest by the fact that the order was discharged at the conclusion of the evidence.  As her Honour said, the matter had been “in a state of flux”.  The interim order, rather than revealing a judicial mind already made up, instead reveals a judicial mind focused on child protection in the face of “very dramatic evidence”.

7. There is no merit in this ground.

Ground 4 – Failure to have proper regard to s 60CC factors

1. This ground complains that the trial judge failed to have proper regard to, or give adequate weight to, various factors said to arise under s 60CC of the Act. We will deal in turn with each of the matters particularised.

(a) The impact of the change in circumstances on the children

1. The first assertion, namely that the trial judge failed to consider “the impact of the change in circumstances on the children”, is utterly devoid of merit.  Her Honour’s judgment is replete with findings about the various adverse consequences for B and C of being separated from their mother and from each other.  The real complaint is that these matters should have been given greater weight than they were, but we have already explained that it was for the trial judge to determine the weight to be afforded to the relevant factors.

(b) The fathers’ untried and untested ability to parent the children

1. It is asserted that the trial judge failed to take account of “the Father’s [sic] untried and untested ability to adequately parent the children on a day-to-day basis, or to have regard to the expert opinion of the Family Consultant as to the concerns about the Father’s [sic] parenting capacity”. 

2. This complaint also lacks any merit.  Once again, the judgment is replete with findings about deficits in the parenting capacity of both the fathers, as well as findings accepting the opinion of the Family Consultant. 

(c) Inadequate reasons for rejecting the evidence of the Family Consultant

1. It is asserted that the trial judge failed “to provide adequate reasons for rejecting the evidence of the Family Consultant, as to the detrimental impact of the removal of the children from their Mother and from each other”.

2. The fundamental difficulty with this proposition is that the trial judge did not reject the evidence of the Family Consultant to that effect.  On the contrary, she accepted it without reservation – see for example [269] to [275].

(d) Failing to make provision for the siblings to spend time with each other

1. This complaint arises out of the orders which permit the mother to spend three hours each three weeks with the children in Mr Backford’s care and then three hours on the following day with the children in Mr Keys’ care.  The terms of the orders permit the mother to spend more time with the children if the fathers agree, although there was no finding to suggest this was likely.  

2. Her Honour obviously recognised that her orders had the effect of separating B and C, who had always lived together until the trial was re-opened.  She discussed the impact of the separation of the girls and said at [275]:

   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. 

3. There was no attack on the finding that the fathers had arranged for the children to spend time with each other, and we infer from the reasons that her Honour considered that this would continue.  We were not referred to any application having been made at trial for an order requiring the fathers to carry out their stated plans to ensure the children spent time together, and we see no error in her Honour failing to make an order directing them to do so.

(e) Impracticability of the mother’s visiting arrangements

1. By this ground it is alleged that the trial judge “failed to make arrangements for the children to spend time with the Mother which are reasonably practicable within the definition of section 65DAA(5) of the Act”.

1. This complaint proceeds under the false premise that s 65DAA had any application.  Her Honour did not make an order for equal shared parental responsibility, and s 65DAA was therefore not engaged.

2. Although the ground on its face lacks legal merit, it was used as a vehicle for a more wide-ranging attack on her Honour’s orders.  Given the importance of this issue to the best interests of the children, we do not consider it appropriate to confine our consideration to the strict terms of the ground.  We will therefore return to this topic after we dispose of the remaining ground.

Ground 6 – Making findings not open on the evidence

1. By this ground it is asserted that the trial judge made findings “which are not open to the court as they are incapable of being sustained by the evidence before the court in relation to the appellant Mother and her partner Mr [E]”.  The findings sought to be impugned were not identified in the ground itself.

2. In support of this ground, it was argued that her Honour had erred in finding that Mr E posed a risk to the children because there had been no evidence of him “offending or coming to the attention of the authorities” since his release from prison; there was evidence of his “rehabilitation”; there was no evidence of him having breached the terms of his parole; and there was no evidence that he had been violent towards the mother or the children.

3. There is no merit in this complaint.  Her Honour provided a detailed history of Mr E’s offending, including the “brutal” attack which had led to him being imprisoned for manslaughter for 12 years, as well as his imprisonment for assaulting a former partner while she was pregnant.  Her Honour identified drug and alcohol as factors in his offending, and found he had minimised his offending.  As for the suggestion that Mr E may have been “rehabilitated”, her Honour found at [152] that his first application for parole failed “on the basis of 16 institutional conduct charges, seven of which were drug related”.

4. Given this background and given the mother’s “changing and contradictory evidence about concerns she may hold about Mr [E’s] propensity to family violence”, we consider it was well open to her Honour to conclude at [156] that there was

   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.

5. Complaint was also made about her Honour having found that Mr I, the paedophile, had accompanied the mother and C to hospital when C was admitted, when the evidence was that Mr I had attended the hospital with one of the mother’s sisters, and that the mother had been upset about him being there.  The defect in this complaint is that the trial judge did not find that Mr I had accompanied the mother and C to the hospital.  Her Honour found at [51] that “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”.  Similarly, her Honour found at [170]:

   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 … had brought Mr [I] to the hospital… 

6. This complaint must therefore also fail.

The restrictions on the mother’s time

1. We turn now to the topic we reserved for discussion when dealing with Ground 4.  In advancing that ground, the mother’s Summary of Argument drew attention to the difficulties facing the mother in taking advantage of the orders for her to see the children every three weeks.   

   7.The final orders are clearly impracticable in that they direct the Mother to collect and deliver each set of children from the respective Fathers on consecutive days every third weekend. The Mother lives in [Q Town], [Mr Keys] lives on the Central Coast of NSW and [Mr Backford] lives in ... Sydney. The evidence is that Mother does not have a motor vehicle licence, or access to a registered vehicle ... and has very little financial resources such that she sometimes cannot afford the train fares. The [trial judge] did not consider or give weight to the impact on the children if the Orders are impracticable as required pursuant to s 60CC: MRR v GR (2010) FLC 93-242.

   8.The Mother gave evidence that she would move or leave her partner if it meant she could retain the care of the girls ... The ICL submitted that the Mother should have half holidays and alternate weekend if staying with the children in Sydney ... The evidence, which is accepted by the [trial judge] is that if the Mother were to spend time or live in Sydney, the risk to the children in her care would disappear. The [trial judge] fails to make any Orders for the Mother to spend significant or meaningful time with the children if she is in Sydney or the Central Coast. The Mother was not asked what arrangements she could make if she was spending overnight time with the children in Sydney.

   9.The [trial judge] had before her an option that met the best interests of the children and failed to give proper reasons for not making these Orders. The [trial judge] ought to have made orders for the Mother to spend significant and meaningful time with the children in Sydney even if the Mother had not already relocated. This was recommended by Dr [F] and supported by the ICL…

2. Putting to one side the misguided references to s 65DAA, these submissions require careful consideration, given they point to the possibility that the mother might not even be able to take up the limited time she is permitted with the children under the terms of the orders under appeal.  They also stand to be considered in light of the fact that her Honour did not make any provision for a different arrangement if the mother relocated, even though that was mooted.

3. We set out below the pertinent paragraphs of her Honour’s reasons touching on this issue.  Analysis of the reasons will demonstrate that her Honour took into account all of the matters referred to in the mother’s argument.  It will also be apparent that her Honour did not consider the relocation option because she understood the mother intended staying in Q Town.

4. At [211], her Honour found that the children should not have overnight time with the mother:

   Having regard to all of the foregoing matters I am satisfied that there is a likelihood that the relevant harmful events will occur, that is that any of the children may be sexually assaulted by Mr [I] if they live with the mother or spend time with her in [Q Town]. In relation to the severity of the impact that would be caused by such abuse, it is beyond doubt that this would have a profound detrimental effect both physically and psychologically upon any child. In light of these findings, I am satisfied that there is an unacceptable risk that the children may be sexually abused by Mr [I] in the event that [C] and [B] live with the mother or all of the children spend overnight time with her in the holidays in [Q Town] as she proposes. The issue of the mother’s proposal to mitigate this harm is dealt with later in these Reasons.

5. At [223], her Honour recorded part of Dr F’s] evidence in a way which assumes that the mother will remain in Q Town:

   According to Dr [F], the best way for children of the ages of [G], [C] and [H] in particular to have a meaningful relationship with each parent after separation would be for them to live consistently in one household and spend increasing amounts of time with the other parent.  However, for these children and for [P] and [B], this is not possible under any of the parent’s proposed arrangements as none of the proposals allow for regular and significant time with the non-residential parent.

6. At [229], her Honour recorded the proposals of each of the parties.

   The proposals at the end of the proceedings provided for even more limited time with the mother in the event that orders were made as proposed by the fathers. Mr [Backford] proposed that this time occur for a few hours during the day time in the Sydney area every third weekend and Mr [Keys] proposed the same regime on the Central Coast for his children’s time with their mother. The mother’s proposal for the children to spend time with the non-residential parent remained the same throughout the proceedings, that it be for half of each school holiday period.

7. At [231] to [237], her Honour explained the risk to the children if they spent any time with the mother in Q Town.  In doing so, contrary to the submission now advanced on behalf of the mother, her Honour explained why she was not persuaded that the risk to the children would be removed if the mother spent overnight time with the children away from Q Town (emphasis added):

   231.For the reasons given earlier in this judgment, I am of the view that there is an unacceptable risk that the children will be sexually abused by Mr [I] if orders are made that [C] and [B] live with the mother and that the other children spend overnight time with her in the holidays as she proposes. I must consider however whether the mother’s proposal also contains orders which mitigate that risk to a level which is not unacceptable.

   232.The mother agrees to orders which restrain her from allowing the children to come into contact with Mr [I] at any time. Her proposed orders however do not include a restraint upon her allowing the children to come into contact with [Ms N] [one of the mother’s sisters] or any other family members even though these family members do not recognise that Mr [I] poses a risk of harm to children. The mother instead proposes an order requiring her to instruct any persons caring for the children that the children are not to come into contact with Mr [I].

   233.The mother is in my view reluctant to inform [Ms N] of the risk posed by Mr [I]. She also continues to associate with and receive support from [Ms N] and on her own evidence she and her sisters have a pattern of caring for each other’s children. The mother is also prepared to have at least some limited contact with Mr [I] herself. In these circumstances I am not confident that the mother would instruct others caring for the children that the children are not to come into contact with Mr [I] or that other persons caring for the children would in fact comply with that instruction.

   234.The mother’s proposal to reduce the risk posed by Mr [I] is for interim restraints upon the mother allowing such contact to continue on a final basis. In my view restraints of this kind would not be practical or effective in the long term as they would be unable to be policed. Further, as has been demonstrated, when such restraints were in place on an interim basis, each of the fathers immediately became concerned about compliance and on their own evidence questioned the children about the mother’s actions. In my view it is inevitable that if such restraints were put in place on a long term basis as the only means to mitigate the risk, there would be further litigation between the parties.

   235.Initially Mr [Keys] and Mr [Backford] both proposed that the only way to protect the children from a risk of harm in the mother’s care would be through an order that the mother’s time be supervised. In the course of final submissions following the further hearing in February 2016, Mr [Backford] and Mr [Keys] each conceded that it was not practical or realistic to impose supervision of the children’s time with their mother on an indefinite basis. It was submitted on behalf of each of the father [sic] that so long as the mother spent time with the children in the vicinity of the children’s homes and that it did not involve overnight time it was not necessary for this time to be supervised.

   236.The only other proposal to reduce the level of unacceptable risk associated with contact with Mr [I] was raised by the ICL. It is the ICL’s position that an unacceptable risk of harm to the children only arises if the mother were to continue to live in [Q Town] and that if the mother were to move from [Q Town] “the risk would disappear”. The risk associated with Mr [I] and the likelihood of him coming into contact with the mother and her children in places other than [Q Town] and [U Town] was not however explored in cross-examination. In any event, as previously discussed, by the time final submissions were made the mother was proposing to continue to live in [Q Town].

   237.In these circumstances, an application of this very significant consideration to the proposals for [B] and [C] (so far as their living arrangements are concerned) and to the other children (so far as spending time with their mother is concerned) strongly favours the orders being made as proposed by Mr [Keys] and Mr [Backford].

8. The trial judge also did not overlook the practical difficulties associated with the fathers’ proposals, as appears from these paragraphs (emphasis added):

   276.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.

   277.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.

   278.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 [sic] accommodation for herself in those locations.

   279.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.

   280.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.

   281.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.

9. Finally, at [319], when setting out her conclusions, her Honour said:

   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 [sic] [G], [C] and [H].

10. Her Honour’s reasoning can be seen as proceeding on the basis of acceptance of the proposition that the only practicable way to ensure the children were safe in the care of their mother was by restricting their time with her to a few daylight hours, which would necessarily be spent in the vicinity of the children’s homes.  Her Honour was clearly not convinced that Mr I and/or Mr E would not be brought into contact with the children and that therefore the shorter the visits, the less opportunity there would be for them to harm the children.  While it would have been open to her Honour to make somewhat different orders, we cannot say that the orders she did make were not open to her in light of the very serious findings she made.

11. We conclude this discussion by acknowledging that we have not engaged with the argument advanced by counsel for the mother to the effect that her Honour erred by failing to consider making orders for B and C to continue living with her, or at least spend more time with her, if the mother relocated to the Central Coast or Sydney.  There was no ground of appeal directed to this topic, and in particular to the finding at [273] that “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”. While the mother certainly indicated some willingness to make the move, her primary proposal was to remain in Q Town; she did not put forward any solid proposal about the mechanics of such a move; and she had not moved by the time the proceedings were re-opened in early 2016.  

12. While we do not wish to encourage further litigation, as presently advised we do not see anything in her Honour’s reasons which would prevent the mother from making a further application for more time with the children if she was, for example, to relocate to the Central Coast or Sydney and able to persuade the court that Mr I and Mr E were no longer involved in her life.

Outcome and costs

1. As there is no merit in any grounds, the appeal will be dismissed.  We were advised that no orders for costs would be sought. 

I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Kent & Cronin JJ) delivered on 12 January 2017.

Associate:     

Date:              12 January 2017