Leighton and Leighton

[2020] FamCA 809

FAMILY COURT OF AUSTRALIA

LEIGHTON & LEIGHTON [2020] FamCA 809

FAMILY LAW – where Father has committed family violence – ongoing impact of previous family violence on the Mother – where proposed contact is outweighed by the impact on the Mother as the primary carer – application for relocation – where relocation would allow the Mother to access family support – proposed provision of cards and gifts by Father – where Father is incarcerated.

Family Law Act 1975 (Cth) – ss 4AB and 60CC

APPLICANT: Ms Leighton

RESPONDENT: Mr Leighton

INDEPENDENT CHILDREN’S LAWYER: Mrs J Lloyd

FILE NUMBER: CAC 698 of 2014

DATE DELIVERED: 24 September 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 24 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Behrens

SOLICITOR FOR THE APPLICANT: Alliance Legal Services

SOLICITOR FOR THE RESPONDENT: Self-representing

SOLICITOR FOR THE INTERVENOR: Jeanine Lloyd & Associates

Orders

1. Until further order it is ordered that the Applicant, Ms Leighton, be at liberty to relocate the residences of X, born … 2014, and Y, born … 2018, to the Northern New South Wales/South East Queensland area.

2. The children’s matter is transferred to the Registrar’s list pending further application or the relisting of the matter to prepare for trial.

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 Leighton & Leighton 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 CANBERRA

FILE NUMBER: CAC 698 of 2014

Ms Leighton

Applicant

And

Mr Leighton

Respondent

REASONS FOR JUDGMENT

1. These proceedings concern the parenting arrangements for the children of the relationship, X who is 6 years old, and Y, who is 2 years old.  The children currently live with the Mother as their primary carer.  She has sole parental responsibility, with orders that the children live with her and have no time with the Father, such orders being made by consent on 9 July 2020. 

2. The Father is currently on remand at the C Centre in the ACT, where he faces charges relating to committing sexual assaults upon his previous partner, Ms Croft, who is the first applicant in these proceedings (the 1^st Applicant).  He has been in custody since mid-2020 and has pleaded not guilty to those charges, the circumstances of which will be set out further below.  The criminal proceedings are set for further directions in late 2020.

3. The Father has also been convicted of taking intimate images of the Mother without her consent.  In October 2019 he was convicted and placed on a two year Good Behaviour Order in the Magistrates Court. The Mother alleges that he has also sent, without her consent, explicit photographs and videos of her to third parties for an apparent purpose of sexual gratification of strangers, who were invited by the Father to masturbate over the images of the Mother.

4. Although the Mother currently has a Family Violence Order against the Father, she expresses fear of him, alleging that he has breached the order.  She identifies that the Father’s general practitioner has recorded that the Father:

   has continuous thoughts of serious violence against certain individuals and he feels he cannot trust himself not to carry out those acts.

5. The Father disputes this, or that he poses a risk, noting that he has received psychological assessment and support, and that he has also engaged in rehabilitative programmes.

6. Interim orders were previously in place from May 2019.  From then until the Father’s arrest in June 2020 he had supervised time with the children, although the Mother alleges that the Father’s father, who supervised for a period, admitted allowing the children out of his sight when he was supposed to be supervising.  This is a disputed matter.  The interim orders were discharged in July 2020, and the Father has not spent time with the children since his arrest.

7. On 23 May 2020 the Mother was told by the 1^st Applicant that she had discovered that the Father had video recorded himself raping the 1^st Applicant whilst she was unconscious.  This was the subject of the current charges against the Father that he describes in his affidavit as “historical charges.”

8. This has, understandably, had a serious impact upon the Mother.  She describes herself as “overwhelmed,” “at breaking point,” sleeping poorly, being anxious and unable to enjoy the children, despite currently receiving psychological support through a victims of crime scheme.  The Mother says that, at present, she thinks about what the Father has done on a daily basis.  She expresses concern that he may have engaged in similar behaviour with her without her knowing.

9. The Mother is seeking Orders that she be permitted to immediately relocate on an interim basis with the children to the D Region where her parents and her brother live, in order to receive practical and emotional support.  This is in the context that both X and Y have particular needs, for example, X being diagnosed with level two autism, and Y having a preliminary diagnosis of autism.  The Mother frankly says that her long term goal is to live away from the Canberra region.  She seeks the interim move is in pursuit of the greater support available to her in Northern NSW or the D Region.  Part of that support is found in the relationships between the Mother’s parents and the children. The Mother grew up in the D Region and has a network of other friends there.

10. The Mother and children have been temporarily staying in cramped accommodation, where her father normally lives, at her brother’s property in the D Region since travelling there to visit on 7 August 2020.  If permitted to stay she proposes to find rental accommodation and enrol the children with local schools.

11. The Mother says that since she travelled to Queensland her recurring nightmares have stopped, and that she no longer holds constant worries about running into the Father’s family.

12. The Father does not flatly oppose the interim relocation. He says:

    It has always been my view that Ms Leighton is an exceptional mother and cares for both of our children deeply.  If it brings peace to Ms Leighton to relocate, I would agree, I only ask that consideration is made in the best interests of the children and their respective relationships with both myself and my parents.

13. The Father seeks that if the Mother is to move that there be orders that provide for him to be able to provide cards and presents, that there be skype time with his parents and that they be able to visit the children at the Mother’s discretion, and that the Mother provide photos and information about the children through his parents to him.

14. The Mother opposes such qualifications on her interim relocation.

15. She notes no relevant change in circumstances since the current interim terms were agreed to that provide sole parental responsibility to the Mother (and thereby authorise her to determine a move on the part of the children that may render contact with the Father more difficult) and provide for no time with the Father.

16. The Independent Children’s Lawyer supports the Mother’s application.

Discussion

1. At present the orders pose no impediment to the Mother’s proposed interim move to Queensland.  She has sole parental responsibility, and the orders do not provide for time with the Father.  Out of an abundance of caution the Mother has, in any event, sought the Court’s permission for the move, an approach for which she cannot be criticised.

2. It is difficult to characterise the orders sought by the Father, as to whether they are injunctive in nature, or parenting orders.  In any case they fall to be determined by the best interests of the children.

3. Those best interests are to be ascertained by reference to the considerations set out at s 60CC of the Family Law Act 1975.

4. Prominent amongst those consideration are those that relate to the benefits of meaningful relationship with the Mother and Father, the need to protect the children from harm from being subjected to, or exposed to, abuse, neglect or family violence, consideration of the nature of the children’s relationships with the parents and, in particular, paternal grandparents, along with the capacity of the parents and other persons to provide for the needs of the children.  While other considerations may be touched upon, their significance pales in comparison to these considerations.

5. The key factual issues touched upon by those considerations in turn relate to the impacts of the orders sought, both by the Mother and the Father, on the Mother in her role as the sole carer for the children.  As was accepted by the Father, she is “exceptional” in her role as parent.  Also accepted by him is that a heavy burden has been placed upon her by his conduct that may be alleviated by her move to Queensland/Northern NSW.  On her evidence there is significant benefit in such a move, both for her and the children.

6. The Father’s conduct falls within the definition of family violence at s 4AB of the Act.  The Mother’s evidence indicates the heavy impact that has on her, in an ongoing manner, and the exposure of the children to the consequences of that impact, by its impairment of her in her capacity as a parent.  By virtue of this effect, they are exposed to harm by virtue of that exposure to family violence.  That exposure is accentuated by forcing the Mother to engage in the manner sought by the Father, even where that engagement is either with or via the paternal grandparents.

7. Although benefits may flow to the children in having time with the paternal grandparents (acknowledging their case indicates support for and sensitivity in respect of the Mother’s position and that they have played a significant role in the children’s lives), and there may be benefits in some engagement with the Father, these are outweighed by the potential impact on the Mother in her role as parent likely to be occasioned by forcing her into such interactions.

8. It may be that interactions between the children and the paternal grandparents will occur in the future, supported by the Mother.  To provide a net benefit to the children it is necessary that such be in a manner that the Mother can bear, which, at this stage, on the limited evidence before me, requires the Mother to determine the arrangements without orders dictating that they occur, or the manner in which they are to occur.  It is in the children’s best interests, reliant in particular on their Mother as their primary carer, reliant on the Mother’s parenting capacity and reliant upon the need to protect the children from harm from being exposed to family violence, to afford the Mother the relief that can be afforded to her by allowing the move to Queensland/Northern NSW without imposing the burdens suggested by the Father.

9. Orders will be made as sought by the Mother.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 24 September 2020.

Associate: 

Date:  24 September 2020