FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Clayton & Clayton (No 2) [2023] FedCFamC2F 1385
File number: SYC 8412 of 2019 Judgment of: JUDGE LIOUMIS Date of judgment: 7 November 2023 Catchwords: FAMILY LAW – CHILDREN – Interim proceedings – Where the mother ceased the father’s time with the children – Whether the father poses an unacceptable risk to the children – What time the children should spend with the father – Allegations of family violence – Impact on the children of parental conflict Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 69ZL
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.04
Cases cited: Bant v Clayton (2015) 53 Fam LR 621
Deiter & Deiter [2011] FamCAFC 82
Isles & Nelissen (2022) FLC 94-092
Marvel v Marvel (2010) 43 Fam LR 348
SS & AH [2010] FamCAFC 13
Division: Division 2 Family Law Number of paragraphs: 117 Date of hearing: 28 September 2023 Place: Sydney Counsel for the Applicant: Mr Roberts of Counsel Solicitor for the Applicant: Dimocks Family Lawyers Counsel for the Respondent: Mr O’Reilly of Counsel Solicitor for the Respondent: Barkus Doolan Winning Counsel for the Independent Children's Lawyer: Ms Dalrymple of Counsel Solicitor for the Independent Children's Lawyer: Farah Lawyers, Solicitors & Barristers ORDERS
SYC 8412 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CLAYTON
Applicant
AND: MR CLAYTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE LIOUMIS
DATE OF ORDER:
7 NOVEMBER 2023
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.Orders 1, 2, 3, 4, 5 & 6 of the Orders dated 19 April 2023 are suspended.
2.The children X born in 2011, Y born in 2015 and Z born in 2019 (“the children”) live with the Mother.
3.The children spend time with the Father for no less than three hours each Saturday and Sunday, with such time to be supervised by a professional supervisory service.
4.In order to spend time with the children, the Father shall nominate two professional supervisory services to the Mother and the Mother shall, within 48 hours of receipt of the Father’s nominations, choose one of the services.
5.Each party shall within 24 hours following the Mother’s election pursuant to Order 4 herein, complete all intake forms and pay equally such deposits as the supervisory service requires.
6.Each party shall thereafter:
(a)Follow all intake processes, including intake sessions and interviews; and
(b)Follow the reasonable directions of the supervisor at the commencement, during and at the conclusion of the children’s time with the Father.
7.Each party shall pay in equal shares the costs of the supervisory service.
8.The parties may agree in writing to the children’s time with the Father being supervised by another person.
9.Each party is injuncted from:
(a)Discussing the criminal or family law proceedings with or in the presence of the children, or from permitting any other person to do so;…
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CaseChat Overview and Summary
The court was required to determine whether the father posed an unacceptable risk to the children and, if so, to what extent, if any, he should be allowed supervised contact with them. The court also had to consider the impact of parental conflict and family violence on the children, and the appropriate arrangements for their residence and spending time.
In reaching its decision, the court carefully considered the evidence presented, including expert opinions on the children’s best interests and the impact of parental conflict and family violence. The judge concluded that while there were significant concerns about the father’s conduct, the children would benefit from supervised contact with him. The court emphasised the importance of minimising the impact of parental conflict on the children and promoting their ongoing relationship with both parents. The court made orders for the children to live with the mother but to spend time with the father under supervision, with specific directions regarding the selection of the supervisory service and the completion of intake processes. Both parents were also required to complete a Parenting After Separation course.
The final orders suspended certain previous orders and established new arrangements for the children’s residence and spending time, with provisions for supervised contact, equal sharing of costs, and restrictions on discussing legal proceedings or denigrating the other parent in the children's presence.
Orders
Orders of the court
SYC 8412 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS CLAYTON
Applicant
AND:
MR CLAYTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE LIOUMIS
DATE OF ORDER:
7 NOVEMBER 2023
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1. Orders 1, 2, 3, 4, 5 & 6 of the Orders dated 19 April 2023 are suspended.
2. The children X born in 2011, Y born in 2015 and Z born in 2019 (“the children”) live with the Mother.
3. The children spend time with the Father for no less than three hours each Saturday and Sunday, with such time to be supervised by a professional supervisory service.
4. In order to spend time with the children, the Father shall nominate two professional supervisory services to the Mother and the Mother shall, within 48 hours of receipt of the Father’s nominations, choose one of the services.
5. Each party shall within 24 hours following the Mother’s election pursuant to Order 4 herein, complete all intake forms and pay equally such deposits as the supervisory service requires.
6. Each party shall thereafter:
(a) Follow all intake processes, including intake sessions and interviews; and
(b) Follow the reasonable directions of the supervisor at the commencement, during and at the conclusion of the children’s time with the Father.
7. Each party shall pay in equal shares the costs of the supervisory service.
8. The parties may agree in writing to the children’s time with the Father being supervised by another person.
9. Each party is injuncted from:
(a) Discussing the criminal or family law proceedings with or in the presence of the children, or from permitting any other person to do so; and
(b) Denigrating the other parent or members of the other parent’s family in the presence of the children, or from permitting any other person to do so.
10. Both parents shall forthwith enrol in, attend and complete a Parenting After Separation course.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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