FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Clayton & Clayton (No 3) [2024] FedCFamC2F 994
File number: SYC 8412 of 2019 Judgment of: JUDGE LIOUMIS Date of judgment: 27 August 2024 Catchwords: FAMILY LAW – CHILDREN – Whether the children should spend time with the father – Allegations of family violence, including coercive and controlling family violence – Exposure of the children to family violence – Drug use – Where the father made concessions as to falsifying negative drug test results – Where the father made concessions as to falsifying evidence in criminal proceedings – Where the father made concessions as to falsifying medical records – Where the father made concessions as to falsifying financial records – Alcohol use – Where findings are made that the father poses an unacceptable risk of harm to the children and the mother as a result of family violence – Where findings are made that the father’s drug use poses an unacceptable risk of harm to the children – Where findings are made that an order for no time is not in the children’s best interests – Where orders are made for ongoing supervised time between the father and the children, with such time to be supervised by a professional supervised contact service Legislation: Evidence Act 1995 (Cth) ss 128, 140
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 60CG, 65D, 65DAA, 68B, 68C, 68P, 68Q
Surveillance Devices Act 2007 (NSW) s 7
Cases cited: A & A (1998) FLC 92-800
Adamson & Adamson (2014) FLC 93-622
Amador & Amador (2009) 43 Fam LR 268
B & B (1993) FLC 92-357
B & K [2001] FamCA 880
Bant & Clayton (2019) FLC 93-924
Clayton & Clayton [2023] FedCFamC2F 1375
Clayton & Clayton (No 2) [2023] FedCFamC2F 1385
Blinko & Blinko [2015] FamCAFC 146
Deiter & Deiter [2011] FamCAFC 82
Hedlund & Hedlund (2021) 64 Fam LR 458
Isles & Nelissen (2022) FLC 94-092
Keane & Keane (2021) 62 Fam LR 190
Keating & Keating (2019) FLC 93-894
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Lainhart & Ellinson [2023] FedCFamC1A 200
Marvel & Marvel(No 2) (2010) 43 Fam LR 348
Mazorski v Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Ramzi & Moussa [2022] FedCFamC2F 1473
Shelbourne & Shelbourne [2017] FamCA 761
Whisprun Pty Ltd v Dixon [2003] HCA 48
Zuen & Lhao [2020] FamCAFC 84
Division: Division 2 Family Law Number of paragraphs: 480 Date of hearing: 26, 27, 28 & 29 February 2024 Place: Sydney Counsel for the Applicant: Mr Mathews of Counsel Solicitor for the Applicant: Dimocks Family Lawyers Counsel for the Respondent: Ms Fisken 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
Continue reading Clayton & Clayton (No 3)
Sign in free to access the full text
- AGLC
- Clayton & Clayton (No 3) [2024] FedCFamC2F 994
- Case
- [2024] FedCFamC2F 994
- Decision Date
CaseChat Overview and Summary
The court identified several key issues. It needed to ascertain the risk posed by the father's violent conduct, drug use, and falsification of evidence, including drug test results, criminal proceedings, medical records, and financial records. The court also had to decide if an order for no contact with the father was in the children’s best interests and if supervised contact was a viable alternative. The court was tasked with balancing the children’s need for contact with their father against the risk of harm from his behaviour.
The court found that the father's conduct, including his violent behaviour, drug use, and falsification of evidence, posed significant risks to both the children and their mother. The court concluded that an order for no contact with the father was not in the children’s best interests, as it would sever an important parental relationship. However, due to the risks identified, the court decided that any contact must be supervised by a professional supervised contact service. The court made orders for limited supervised contact on specific days and also prohibited the father from removing the children from Australia without the mother’s consent. Additionally, the court issued personal protection orders to safeguard the mother and the children from the father's harmful conduct.
In summary, the court ordered sole parental responsibility for the children to rest with the mother, with specific conditions for supervised contact with the father, overseas travel restrictions, and personal protection orders. The court also directed the father to contribute to the costs of the Independent Children’s Lawyer and mandated written submissions regarding a potential referral to the Director of Public Prosecutions.
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:
27 AUGUST 2024
BY CONSENT AND ON A FINAL BASIS THE COURT ORDERS THAT:
1. The Mother have sole parental responsibility for the children X born in 2011, Y born in 2015 and Z born in 2019.
2. The children live with the Mother.
ON A FINAL BASIS THE COURT ORDERS THAT:
Spend time with
3. The children spend time with the Father as follows:
(a) On the third Saturday of February, April, June, August, October and December each year for a period of up to four hours.
4. The Father’s time in Order 3 shall be supervised by a professional supervised contact service nominated by the Mother within 7 days of the date of these Orders.
5. Each party shall forthwith do all things and sign all documents as required by the nominated professional supervised contact service.
6. Each party shall follow all reasonable directions of the nominated professional supervised contact service, including in relation to changeovers.
Overseas travel
7. The Father, Mr Clayton born in 1978, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children, X born in 2011, Y born in 2015, and Z born in 2019 (“the children”), from the Commonwealth of Australia.
8. It is requested that the Australian Federal Police give effect to Order 7 above by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist until the Court orders its removal.
9. Despite Orders 7 & 8 above, the Mother, Ms Clayton born in 1978, shall be permitted to remove the said children, X born in 2011, Y born in 2015, and Z born in 2019, from the Commonwealth of Australia at any time with no restriction and without the consent of the Father, Mr Clayton born in 1978.
Personal protection orders
10. Pursuant to section 68B(1) of the Family Law Act 1975 (Cth), the Father, Mr Clayton born in 1978, be and is hereby restrained from:
(a) Assaulting, harassing, or molesting the Mother in any way;
(b) Forwarding, sending, or initiating any communication in any form with the Mother;
(c) Approaching or being within 250 metres of the Mother;
(d) Entering or being within 250 metres of the Mother’s home or any place where the Mother works or lives.
11. Pursuant to section 68C of the Family Law Act 1975 (Cth), Order 10 is an injunction for the personal protection of the Mother.
12. Pursuant to section 68C of the Family Law Act 1975 (Cth), if a police officer believes, on reasonable grounds, that the person, Mr Clayton born in 1978, against whom the injunction at Order 10 is directed, has breached the injunction by:
(a) Causing, or threatening to cause bodily harm to the protected person; or
(b) Harassing, molesting or stalking that person;
the police officer may arrest Mr Clayton without warrant.
13. Pursuant to section 68P and section 68Q of the Family Law Act 1975 (Cth), to the extent of any inconsistency, any other family violence order is invalid.
14. Pursuant to section 68B(1) of the Family Law Act 1975 (Cth), the Father, Mr Clayton born in 1978, be and is hereby restrained from the following:
(a) Assaulting, harassing, or molesting the children in any way;
(b) Forwarding, sending, or initiating any communication with the children;
(c) Causing any third parties, from forwarding, sending, or initiating any communication in any form with the children on behalf of the Father;
(d) Entering or being within 250 metres of the children’s home;
(e) Entering or being within 250 metres of the children’s school/daycare centre or any other extra-curricular activities that the children are enrolled in; and
(f) Being within 250 metres of the children unless otherwise specified in these Orders.
15. Pursuant to section 68C of the Family Law Act 1975 (Cth), Order 14 is an injunction for the personal protection of the children.
16. Pursuant to section 68C of the Family Law Act 1975 (Cth), if a police officer believes, on reasonable grounds, that the person, Mr Clayton born in 1978, against whom the injunction at Order 14 is directed has breached the injunction by:
(a) Causing, or threatening to cause, bodily harm to the protected person; or
(b) Harassing, molesting or stalking that person;
the police officer may arrest Mr Clayton without warrant.
Ancillary orders
17. The parties shall:
(a) Not denigrate or insult the other parent, the other parent’s partner or the other parent’s family in the presence or hearing of the children and shall use their best endeavours to ensure that others do not do so; and
(b) Will not discuss the family law dispute or show the children any court documents.
18. During the time the children are with either parent, that parent will:
(a) Respect the privacy of the other parent and not question the children about the personal life of the other parent; and
(b) Speak of the other parent respectfully.
BY CONSENT BETWEEN THE RESPONDENT AND THE INDEPENDENT CHILDREN’S LAWYER THE COURT ORDERS THAT:
19. Within 28 days of the date of these Orders, the Father shall pay to Legal Aid New South Wales the sum of $7,183.82 being half of the costs of the Independent Children’s Lawyer in the proceedings between the parties and such cost is to be paid directly to Legal Aid New South Wales.
THE COURT ORDERS THAT:
Written submissions
20. Within 21 days of these Orders, the parties are to file and serve written submissions of no more than 10 pages to show cause as to why the Father should or should not be referred to the Director of Public Prosecutions.
21. Upon the last filing of material in conformity with Order 20, the decision in relation to whether the Father should be referred to the Director of Public Prosecutions stands reserved.
22. Leave is granted to the parties to approach chambers by email (…@...) if they wish to supplement their written submissions with oral submissions.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.