Backford & Backford & Anor (No 2)

[2015] FamCA 678

FAMILY COURT OF AUSTRALIA

BACKFORD & BACKFORD & ANOR (NO 2) [2015] FamCA 678

FAMILY LAW – CHILDREN – Interim parenting arrangements – Best interests – Where the children should live – Allegations of violence – Unacceptable risk of harm – Effect of change in circumstances

FAMILY LAW – INTERVENTION – Request pursuant to Section 91B of the Family Law Act 1975 (Cth) for the Secretary of the NSW Department of Family and Community Services to intervene – Court’s concerns as to the parenting capacity of each of the parents in respect of the needs of the children and the children’s safety

Family Law Act 1975

Deiter & Dieter [2011] FamCAFC 82

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: 28 July 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 28 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Shearman

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

COUNSEL FOR THE FIRST RESPONDENT: Ms Friedlander

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

COUNSEL FOR THE SECOND RESPONDENT: Mr Maddox

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

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Cook

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

Orders Pending Further Order

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

2. Within 28 days Mr Backford shall make arrangements for G and H to be assessed by a speech therapist and shall thereafter follow the recommendations as to treatment if any made by the speech therapist.

3. Within three months, Mr Backford shall attend a parenting course as directed by the Independent Children’s Lawyer and provide a notice of completion to the Independent Children’s Lawyer.

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

5. The mother is restrained from permitting the children to be cared for by any person other than herself, except when spending time with their respective fathers.

6. Any appointments for counselling or services or matters of the like for the mother are to occur during school hours.

7. The mother shall ensure that the children spend each night at her home unless spending time with their fathers and shall ensure that no other adult other than herself sleep in the same room as the children and no other adult other than Mr E is to sleep over in the house.

8. The mother shall also ensure that the children have separate beds to sleep in at all times and that no other person share a bed with the child.

9. The mother shall ensure that her relatives Ms J, Ms K, Ms L, Ms M, Ms N and Ms O Newton are not to come in contact with the children.

10. Each of the parents is restrained from consuming or using illicit drugs or consuming alcohol to excess being over the legal limit to drive while any of the children are in their care.

11. The mother shall ensure that B and C attend school each day on time and are only absent from school if they are ill or are required to attend an appointment.

12. In the event that any of the children is seriously ill or injured or requires attendance at hospital the parent in whose care the child is at such time shall notify the child’s other parent as soon as practicable and within at least 24 hours of the nature of illness, injury or reason for hospital attendance and the name of the treating doctor or hospital and each of the child’s parents shall be entitled to communicate with the child’s treating medical professionals.

13. Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Secretary of the NSW Department of Family and Community Services is requested to intervene in these proceedings.

14. In the event that the Secretary intervenes, he/she is to file and serve a Notice of Intervention by no later than 10 September 2015.

15. Pursuant to Rule 24.13 of the Family Law Rules 2004 (Cth), leave is granted to the Secretary of the NSW Department of Family and Community Services, or his/her delegate, to inspect and copy any documents on the Court file forming part of the Court record.

16. The Independent Children’s Lawyer has liberty to relist the matter in any circumstances the Independent Children’s Lawyer regards as appropriate, in particular, if it is brought to the Independent Children’s Lawyer’s attention that any of the interim orders are contravened.

17. The parties are at liberty to agree with respect to the changeover location for the children spending time with the parent with whom they do not live.

18. 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.

Notation

1. All these orders are in addition to the interim orders currently in place.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Backford & Backford & Anor (No 2) 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 and Mr Keys

Respondents

REASONS FOR JUDGMENT

1. This is an application with respect to the interim arrangements for the five children that these proceedings over the last week have been concerned with, who have two fathers – Mr Keys, in the case of P and B, and Mr Backford, in relation to G, C and H.  Their mother, Ms Backford, is the mother of all five children and has C and B living with her.  The rest of the children live with their respective fathers.  Due to circumstances, of course, beyond the control of the children, because of various decisions that the adults in this matter have made, the children have been separated and live in three different parts of the state, many hundred kilometres from each other.

2. The orders that are being sought on an interim basis by each of the fathers and the mother are roughly in accordance with the orders that are being sought in the matter on a final basis, subject, of course, to the fact that I have not had final submissions made, but certainly with respect to the critical issues of parental responsibility and where the children should live.

3. Essentially, the mother wants the current status quo to remain – that is, that C and B remain living with her in Q Town and the other children remain living with their fathers.  Each of the fathers want the children who are currently not in their care and in the care of their mother to commence residing with them immediately.  So far as Mr Backford is concerned, he seeks that the only time the children have with their mother be at a supervised contact centre which will not be available to accommodate the mother for a couple of months; whereas in the case of Mr Keys, under his proposed orders the children will spend time with their mother for a few hours each third Saturday in the town in which he resides.

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.

8. Those steps were taken, however, prior to the evidence being given by Dr F. I agree with the Independent Children’s Lawyer that Dr F is a particularly important and, in my view, a significant witness upon whom, it would appear, at least for the interim proceedings, I attach great weight.  The very concerning aspects of the evidence in relation to Mr I, in relation to the mother’s somewhat casual attitude towards Mr I in light of her knowledge about him, the general circumstances of the mother’s sisters, and some aspects of matters relating to Mr E were put to Dr F, but she remained of the view that it was her recommendation that the children remain in the status quo. 

9. When it was put to her that a further scenario had been explored in the course of the hearing –that is that the mother and Mr Keys would move to the Sydney and Central Coast area – she agreed that that was the best scenario of all, and said that despite the concerns that she had about the mother (and she was very concerned and did say of those sorts of matters that Ms Shearman referred to in her submissions that it would require massive change on behalf of the mother)  she nonetheless still made the recommendation that, in her view, it was in the best interests of all of the children, even considering the disturbing evidence that came to light, that the status quo remain, but that all of the families live closer to one another.

10. Dr F reminded the Court, in effect, that many of her misgivings were about the entire family constellation, and highlighted some of the concerns in both Mr Backford and Mr Keys’ homes.  So far as Mr Backford is concerned, she referred to matters of relative neglect, including a failure of Mr Backford to have undertaken any parenting course even though deficiencies in his parenting had been highlighted in her report, which was in 2013; that there were concerns about both young boys’ speech and yet he had not had a speech assessment done. 

11. It is not to say that there were not some strengths in Mr Backford’s home, but Dr F highlighted some of the concerns in that home.  She also talked about the lack of supervision, which seemed to be indicated in the incident where G managed to burn down a shed at Mr Backford’s home when Mr Backford was in the bath, the accident on the pedestrian crossing –neither of which were in Mr Backford’s affidavit, and I think what Mr Cook on behalf of the Independent Children’s Lawyer says is quite right – there is an absence of all sorts of relevant information in this matter.  It is not simply a criticism of the mother alone.

12. Dr F also referred to the change in dynamic for C and, in particular, that C has gone from a home where there is quite a bit of female company and care-giving to a male-dominated home, simply to highlight some of the challenges that are present in Mr Backford’s home.

13. So far as Mr Keys is concerned, she referred to some of the concerns, in particular about P’s behaviour which she described as “acting out” behaviour.  Dr F seemed to be of the view that P was experiencing some quite significant psychological issues which she saw in the subpoenaed material.  Once again, it has come about in quite an unsatisfactory manner.  I am not sure what weight, ultimately, will be attached to some of the reports.  Some of them are second and third-hand hearsay and the appropriate weight will need to be attached.  But she remained of the view that there were still some shortcomings in the care-giving of Mr and Ms Keys and said that the further information simply added to the complexity of the matter. 

14. Dr F had previously described this as a borderline matter for the Department of Family and Community Services to be involved in, but seemed to be suggesting yesterday that, in fact, they ought to be involved in this matter, at least to be offering some form of support for each part of the family constellation.

15. In terms of the interim order I agree with the submissions made by Mr Maddox about the context in which I suspended the orders that were in place and made reference, in particular, to the need to protect the children and, in particular, C and B from concerns of various domains of harm that would arise on the evidence at that stage in the mother’s home.

16. However, I have now received the benefit of Dr F’s opinion, which was not shaken – in fact, it was very interesting to note that, despite what I have described as the dramatic items of evidence she still remained of the view that there was a need to protect all the children in each of the homes from various forms of physical and psychological harm and that risks arose in each of the homes. 

17. As far as the considerations are concerned, bearing in mind that this is an interim application, I repeat some of the matters that I raised the other day.  As far as the benefit of having a meaningful relationship with both of the children’s parents, all of the orders proposed present some form of challenges and under all of them, as proposed for the next few months, the children will be denied of a meaningful relationship with one or other of the parents in all of the combinations proposed, and neither one is better than another in that regard. 

18. In my view, the best orders of all would be relating to a change in residence, but it wasn’t proposed by anyone, and nor would it be indicated for other reasons that that happen immediately in terms of the adults relocating.  And in the absence of that happening, which has only be discussed to date on a final basis, there are concerns about the children’s meaningful relationship with both of their parents under all of the scenarios suggested.  And there are likewise concerns that rise in terms of protecting the children from various forms of harm in each of the homes.

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.  However, Dr F although acknowledging that the mother needed to make massive change, she also talked about the shock of the proceedings on the mother.  It may very well be that the proceedings have been a huge wake up call to the mother of the extent of her deficiencies and the steps that she needs to take to keep her children safe.  To some extent I do rely upon that, but to another extent I simply have to trust that she will in fact comply with those restraints.

20. I think that the critical matters in the additional considerations are consideration (b), being the nature of the relationship of the children with each of the parents, and in this matter of course I am focusing on B and C in particular because it is B and C who it is being proposed under the orders of each of the fathers, be moved.

21. There is no dispute in this matter that although Mr Backford was involved in the care of both B and C when they were younger, for many years the primary caregiver for each of them has been their mother, and that they have a particularly close sibling bond and the relationships for both B and C with each of their fathers is a growing one.  It couldn’t be said to be of the same strength of the relationship with the mother, but, as I say, it’s certainly a growing one.  The separation of those particular siblings – B and C – is an important matter that I need to take into account.

22. The likely effect of change in circumstances is probably the most critical issue in this matter.  And the biggest concern is that at this stage I am considering the interim situation.  I’ve not yet heard the submissions made on behalf of the parties in respect of the final orders.  These will be interim orders that will be in place for a couple of months.  According to the case of Deiter & Dieter[1] that is a matter that the Court takes into account especially if the circumstances that a child has to endure are less than satisfactory.  But the greatest concern is that the interim situation, except in the case of C, is different to the final situation.

    [1] [2011] FamCAFC 82

23. I understand that the mother will be putting forth that it’s in the best interest of the children regardless of whether B and C live with her or their fathers for her to relocate to Sydney, close to the Central Coast area.  Mr Keys also is positively promoting that.  So that in respect of B, if Mr Keys’ orders are made on an interim basis she would change school immediately for a matter of months and then change again in another few months.  In the case of C, she would change once.  She wouldn’t have the second change if Mr Backford’s orders are made both on an interim and final basis.

24. However, if the orders the mother seeks are successful on a final basis then both B and C will change again for a matter of months and then again after that in another few months’ time.  The change is not only being removed from their primary caregiver and attachment figure but from each other and from whatever social capital they have associated with where they live.  Despite some of the concerning shortcomings they still have some form of relationship with Mr E.  They will move into homes where there are areas of concern as have been identified by Dr F, and the risk is that it might only be all of that for the sake of a few months.

25. There would be practical difficulties associated, particularly on Mr Backford’s proposed orders with the mother spending time with him.  He is proposing that C is separated from her primary caregiver immediately and not see her mother at all for a matter of a couple of months until a supervised centre can be found, and even then only in a supervised context.  And that certainly is a very dramatic change in circumstances.  This is a matter where there are real issues about every parent’s capacity to provide for the needs of the children, including the children who are proposed to be changed.

26. There are issues relating to the children’s Aboriginality, which in my view are not particularly significant on an interim basis.  There are real concerns about the responsibilities of parenthood.  I have indicated that I have real concerns about the mother’s compliance with orders, but I have to consider that in with the mix of all the other matters.  Taking everything into account, but particularly bearing in mind that these are interim orders, and particularly attaching weight to Dr F’s evidence, I am of the view that the interim situation should remain with the addition of various constraints, and they will be as set out in the orders at the forefront of these Reasons.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 28 July 2015.

Associate: 

Date:  19 August 2015