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

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

Each of the parents are restrained from physically disciplining the children and are restrained from allowing any other person to physically discipline the children.
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.
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.
The mother is restrained from allowing or permitting the children to come into contact with Mr I born … 1941 at any time.
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.
Any appointments for counselling or services or matters of the like for the mother are to occur during school hours.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Backford & Backford & Anor (No 2)

Details

AGLC: Backford & Backford & Anor (No 2) [2015] FamCA 678
Case: [2015] FamCA 678
Decision Date: 28 July 2015

CaseChat Overview and Summary

In *Backford & Backford & Anor (No 2)*, Hannam J of the Federal Circuit and Family Court of Australia considered interim parenting arrangements for two children amidst allegations of violence and concerns regarding the parents' capacity to meet the children's needs and ensure their safety. The proceedings also involved a request for the Secretary of the NSW Department of Family and Community Services to intervene pursuant to section 91B of the *Family Law Act 1975* (Cth).

The primary legal issues before the court were whether the children should live with either parent on an interim basis, and whether there was an unacceptable risk of harm to the children if they did so. The court also had to consider the effect of any alleged change in circumstances on these arrangements and the appropriateness of departmental intervention.

Hannam J applied the paramountcy principle of the children's best interests, assessing the evidence presented regarding the allegations of violence and the parents' respective parenting capacities. The court considered the potential impact of any proposed living arrangements on the children's safety and well-being, weighing the risks and benefits associated with each option. The court's determination of these issues would inform the interim orders made.

Orders