KENNEDY & LEIGHTONS

[2017] FamCA 71

FAMILY COURT OF AUSTRALIA

KENNEDY & LEIGHTONS [2017] FamCA 71

FAMILY LAW – CHILD ABUSE – Sexual abuse – Where the father was convicted under the Crimes Act 1900 (NSW) of crimes relating to incitement to commit sexual offences and child abuse material – Where the children were the subject of the child abuse material disseminated – Concluded the father is a threat to the physical, emotional and psychological wellbeing of the children – Ordered the children spend no time with the father – Ordered the father is restrained from attempting to contact the children

FAMILY LAW – CHILDREN – Change of name – Where a child’s name is hyphenated – Where the father has been identified by the media as a paedophile and that identification could have adverse inferences for the children – Ordered the mother may change the child’s last name without reference to the father 

Crimes Act 1900 (NSW), ss 80G, 91, 91G

APPLICANT: Ms Kennedy

RESPONDENT: Mr Leightons

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Newcastle

FILE NUMBER: (P)NCC 3147 of 2013

DATE DELIVERED: 6 February 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 6 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Mr Fleming

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Newcastle

Orders

1. Leave is granted to the parties to inspect the subpoenaed material produced on disc by the Office of the Director of Private Prosecutions NSW.

2. The Orders made in the Family Court of Australia at Newcastle on 7 January 2014 are discharged in relation to the children B born … 2008 and C born … 2010 (“the children”).

3. The children live with the Applicant mother.

4. The Applicant mother have sole parental responsibility for the children.

5. The Respondent father spend no time with the children.

6. Pursuant to s 68B(1) of the Family Law Act 1975, the Respondent father is restrained from making and attempting to make contact with the subject children, or either of them:

   a)In person;

   b)Through a third party on behalf of the father;

   c)By mail;

   d)By telephone;

   e)Electronically; and

   f)Otherwise, by any means whatsoever.

7. The mother may without reference to the father change the surname of the child B KENNEDY-LEIGHTONS to B KENNEDY. To that end, the mother may do all acts and execute all documents necessary to apply for the registrar of New South Wales Births, Deaths and Marriages, to amend the registration of the child’s birth to reflect the change of surname.

8. If the mother wishes to provide a copy of these Orders and Reasons for Judgment to the D Clinic then she, or the Independent Children’s Lawyer on her behalf, may do so.

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 Kennedy & Leightons 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).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC 3147/2013

Ms Kennedy

Applicant

And

Mr Leightons

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. This is an application for parenting orders by Ms Kennedy, the mother of two subject children, B, now aged eight years and two months, and C, aged six years and eight months. 

2. The Respondent to the application is the father of the children, Mr Leightons. 

3. Mr Leightons is presently in jail resulting from conviction on the following charges:[1]

   a)disseminate child abuse material, s 91H(2) of the Crimes Act;

   b)possess child abuse material, s 91H(2) of the Crimes Act;

   c)produce child abuse, s 91H(2) of the Crimes Act;

   d)cause a child to be used for production of child abuse material, s 91G(1)(b) of the Crimes Act;

   e)incite person to have sexual intercourse with a child under 10 years old, s 80G(1) of the Crimes Act. 

   [1] Exhibit 2

4. Mr Leightons will be released at the earliest 25 November 2019, at the latest, November 2021. 

5. Mr Leightons was not legally represented at Court today.

6. The mother through her solicitor asked that the matter be brought to conclusion.  The father has not seen the children since 6 September 2015, about seventeen months ago.  However, the mother has been burdened by dealing with the consequences of the father’s offending since mid-2015.  There is an obvious benefit to the children of relieving at least one pressure on the mother by making final orders today. 

7. There is no indication in the father’s criminal history of past offending of the kind for which he has been convicted.  He was unable to offer any explanation to the psychologist who prepared his pre-sentence report for his offending behaviour. 

8. In her affidavit, in paragraph 17 to 20 inclusive, the mother reflects on the fact that the reason why her children would sometimes cry before going to spend time with their father; in the case of B, she would complain that her bottom was painful and that she would only get dressed in the toilet where no one could see her; in the case of both children, they were reluctant to sleep alone.  This behaviour, it is clear to the mother now, is probably, almost certainly, a result of the father’s offending behaviour.

9. It is a lot for her to cope with and deal with, but it is also clear that she could not have known what was occurring. 

Short History of Relevant Events

1. The parties began living together in August 2008.  Soon after, the first child B was born and the second subject child, C, was born in 2010.  In March 2011, the parties separated and have remained apart.

2. The mother filed an Application for Consent Orders and those orders were made on 7 January 2014.  The orders finalised property dispute and provided for the parties to share parental responsibility, for the children to live with their mother and for the children to spend time with their father on alternate weekends expanding to a longer alternate weekend once B started school.   The children were five and three and a half when those orders were made.

3. In March 2015, the father began a new relationship with a woman whose child has also been apparently the victim of the father’s offending.

4. Between 26 March 2015 and 6 July 2015, the father was having criminal Twitter conversations with third parties electronically.[2]

   [2] Magellan Report dated 29/10/2015

5. On 17 July 2015, the Australia Federal Police received a report that the father was uploading child pornography files to Twitter.

6. In September 2015, the father moved out of the home with his then partner and returned to live with his parents.  He has not seen the subject children since.

7. Subsequently, police were active in investigating the father’s activities and were able to notify the mother and others of what had occurred.  The mother was exposed to material relating to the father’s offending which must have been immensely stressful and emotionally painful for her. 

8. On 13 September 2015, a provisional Apprehended Violence Order was made for the protection of the children and the child of the father’s former partner. 

9. On 21 September 2015, the mother made her current application. 

10. It was opposed by the father through his Response.  The matter was included in the Magellan protocol and has remained in the Court pending the outcome of the criminal proceedings.

11. The father was sentenced in 2016.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Mother

   (a)Initiating Application filed 21/09/2015;

   (b)Affidavit of the mother filed 21/09/2015;

   (c)Affidavit of the mother filed in Court 6/02/2017;

   (d)Notice of Risks filed 21/09/2015 and 8/10/2015;

   The Father

   (e)Response filed 22/10/2015;

   (f)Affidavit of the father filed 22/10/2015;

   Reports

   (g)Magellan Report dated 29/10/2015.

Conclusion

1. Having read all the material, I have come to the conclusion that the father is a threat to the physical, emotional and psychological health of these two children.  The mother is assessed by the Department of Family and Community Services and police as being a safe and protective parent for the children. 

2. The father’s conduct outweighs entirely any benefit that there would be in the children maintaining a relationship with him.  The father himself is unable to explain his actions over a substantial period of time.  There is every reason to put in place orders which ensure that the mother can raise the children as a single parent without interference in any way by the father. 

3. The mother has also raised an application today for a change of the older child’s surname.  She has the hyphenated surname Kennedy-Leightons.  The mother is concerned that the father having appeared in the newspaper post-conviction identified by the newspaper as a paedophile that there could be implications for the child, especially as she and her brother were victims of the father’s behaviour.

4. It is, in my view, appropriate for the mother to have the freedom to change B’s surname if she wishes to do so. 

5. It may be that there is a future application by the father or another person interested in the welfare of the children at some future date. 

6. At this stage, I am satisfied that the need for the children to achieve stability and whatever treatment is underway for the consequences of what their father has done to them should be protected by the Court by the orders discussed.

7. If the mother wishes to provide a copy of these orders and the reasons for judgment to the D Clinic then she or the Independent Children's Lawyer on her behalf may do so. 

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 6 February 2017.

Associate: 

Date:  13 February 2017