Clayton & Clayton (No 3)

Case [2024] FedCFamC2F 994


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

M v M (1988) 166 CLR 69

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

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AGLC
Clayton & Clayton (No 3) [2024] FedCFamC2F 994
Case
[2024] FedCFamC2F 994
Decision Date

CaseChat Overview and Summary

In the case of Clayton & Clayton (No 3), the Federal Circuit and Family Court of Australia dealt with a dispute concerning the care and supervision of three children, born in 2011, 2015, and 2019, between their parents, Ms Clayton and Mr Clayton. The primary concern was whether the children should spend time with their father and, if so, under what conditions. The case also involved serious allegations of family violence, drug use, and falsification of evidence by the father. The court had to determine if the father posed an unacceptable risk to the children and their mother due to his behaviour and if supervised contact was in the children’s best interests.

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

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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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