Clayton & Clayton (No 5)
[2024] FedCFamC2F 1593
•14 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Clayton & Clayton (No 5) [2024] FedCFamC2F 1593
File number: SYC 8412 of 2019 Judgment of: JUDGE LIOUMIS Date of judgment: 14 November 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Whether the Court should refer the papers to the New South Wales Director of Public Prosecutions – Where findings were made at final hearing that the father fraudulently amended hospital records for use in criminal proceedings in the Local Court – Where both parties seek the referral not be made – Referral made Legislation: Family Law Act 1975 (Cth) s 68B
Crimes Act 1900 (NSW) ss 253, 254, 317, 319
Cases cited: [2019] FCCA 3857
Clayton & Clayton (No 3) [2024] FedCFamC2F 994
Fennessy & Gregorian (formerly Sanchez) [2007] FamCA 1574
Huda & Huda (No 2) (2020) 61 Fam LR 257
In the Marriage of P & P (1985) 9 Fam LR at 1108
Malpass & Mayson (2000) 27 Fam LR 288
Paycorp Payment Solutions Pty Ltd & Anor v Peter Singyin Chai & Anor (No 3) [2011] NSWSC 1632
Simpson v Hodges [2007] NSWSC 1230
Division: Division 2 Family Law Number of paragraphs: 45 Date of last submissions: 17 September 2024 Date of hearing: On the papers Place: Sydney Solicitor for the Applicant: Mr Naddaf, Dimocks Family Lawyers Counsel for the Respondent: Ms Fisken of Counsel Solicitor for the Respondent: Barkus Doolan Winning 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:
14 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The Registrar of the Federal Circuit and Family Court of Australia forward to the New South Wales Director of Public Prosecutions the Reasons for Judgment delivered 27 August 2024 (Clayton & Clayton (No 3) [2024] FedCFamC2F 994), this Judgment, the Transcript of the entire proceedings, and relevant Exhibits relating to those proceedings being Exhibits F11, F12 and M26, for a consideration by the New South Wales Director of Public Prosecutions as to whether or not Mr Clayton should be prosecuted having regard to the findings made by the Court against Mr Clayton referred to in the Reasons for Judgment.
2.All outstanding applications are dismissed and the proceedings are removed from the list of matters awaiting finalisation.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
On 27 August 2024, final Orders were made in this matter following a four day defended hearing in February 2024 relating to the parenting arrangements for the children X born in 2011, Y born in 2015 and Z born in 2019 (collectively “the children”). Reasons for Judgment were also delivered on this date: Clayton & Clayton (No 3) [2024] FedCFamC2F 994 (“Clayton & Clayton (No 3)”).
As part of the Orders made, the parties were directed to file and serve written submissions to show cause as to why the Respondent father (“the father”) should or should not be referred to the Director of Public Prosecutions. This judgment relates to the determination of this discrete issue.
The basis for the father’s potential referral to the Director of Public Prosecutions lies in findings made by this Court at [109] and [305] – [312] of Clayton & Clayton (No 3) that the father altered T Hospital records from 2011 to conceal the nature and extent of his drug use, and then relied on those altered records in criminal proceedings in the Local Court in 2022 in which the Applicant mother (“the mother”) was the alleged victim.
It is important to note that the father also sought to rely on these altered records in proceedings in this Court to bolster his credibility and support his submission that the mother is not a witness of credit because she was found to be an untruthful witness in the Local Court proceedings.
The mother and father each filed Written Submissions relating to this discrete issue. Both parties seek that the father not be referred to the Director of Public Prosecutions.
For reasons that will become apparent in this judgment, I make Orders referring the father to the Director of Public Prosecutions.
EVIDENCE
The mother relies on her Written Submissions filed 17 September 2024.
The father relies on his Written Submissions filed 17 September 2024.
The Independent Children’s Lawyer did not file any Written Submissions.
Whilst I have read the documents relied on by the parties, it is not necessary that I refer to every matter alluded to or referenced.
Pursuant to Order 22 of the Orders dated 27 August 2024, the parties were granted leave to approach my chambers if they wished to supplement their written submissions with oral submissions. No such application was made by any party and the matter therefore proceeded on the papers.
BACKGROUND
It is uncontroversial that this matter has an extensive and complicated history which is set out in full at paragraphs 21 – 104 of Clayton & Clayton (No 3). The background relevant to the discrete issue which forms the subject of this judgment is as follows.
The matter was listed for final hearing on 26, 27, 28 & 29 February 2024. On 27 February 2024, final consent Orders were made in relation to all outstanding property issues and the final hearing was contained to the outstanding parenting applications.
Judgment was delivered on 27 August 2024 (Clayton & Clayton (No 3)) and final Orders were made which provided inter alia that:
(a)The mother have sole parental responsibility for the children.
(b)The children live with the mother and spend time with the father on six occasions each year for a period of up to four hours on each occasion, with such time to be supervised by a professional supervised contact service.
(c)The father be restrained from removing the children from the Commonwealth of Australia, while the mother be permitted to remove the children with no restriction and without the consent of the father.
(d)A range of injunctive orders be made for the personal protection of the mother and the children pursuant to section 68B of the Family Law Act 1975 (Cth).
Orders were also made for the parties to file and serve written submissions to show cause as to why the father should or should not be referred to the Director of Public Prosecutions.
The final parenting Orders dated 27 August 2024 were made in the context of several findings including that:
(a)The father presents an ongoing unacceptable risk of harm to the children as a result of family violence, particularly post-separation.
(b)The father’s drug use poses an unacceptable risk of harm to the children, particularly in circumstances where he has not demonstrated insight into the extent of his drug use or its impact on his parenting, and has obfuscated his drug use.
(c)It is not in the children’s best interests for there to be no time with the father as this would lead to a significant loss for the children.
(d)Ongoing professionally supervised time is the only order that would mitigate the risks the father poses to the children, while promoting the mother’s capacity to parent the children.
The Reasons also outlined the father’s evidence and participation in Local Court proceedings in 2022, which can be summarised as follows:
(a)In mid-2022, the father stood trial for several charges and a breach of an Apprehended Domestic Violence Order (“ADVO”).
(b)The father engaged counsel to appear on his behalf, yet did not give sworn oral or affidavit evidence in the proceedings.
(c)Records from the father’s admission to T Hospital in 2011 were tendered into evidence on the father’s behalf.
(d)The mother was the alleged victim and a witness to these criminal proceedings and was cross-examined on the T Hospital records.
(e)The father was found guilty of assaulting the mother in late 2024. It was his evidence in these proceedings that he did not have the funds available to appeal the conviction. The father also entered a plea of guilty to a breach of ADVO and received a good behaviour bond.
In relation to the father’s evidence in the criminal proceedings, the following findings were made by this Court in Clayton & Clayton (No 3):
(a)The father fraudulently made alterations to the 2011 T Hospital records to remove references to drug use, as outlined at [306]:
…
(a) Inserted the words “No drugs detected”.
(b) Deleted the words “ingestion of Alcohol and Antihistamin” and inserted the words “ingestion of spirits and wine”.
(c) Deleted the words “HAd [sic] Alcohol with [medication]” and inserted the words “Had Alcohol”.
(d) Deleted the words “[illicit drug], recreational drugs?” after drug use and inserted the word “none”.
(e) Inserted the words “as a precautionary measure” after “wife…called [clinic]”.
(f) Deleted the words “He also takes steroid”.
(g) Deleted the recording of a positive reading for [illicit drugs] when the hospital undertook a drug screening test.
(citations omitted)
(b)The father provided the falsified material to his counsel for use in the Local Court criminal proceedings, for the purpose of undermining the mother’s credibility.
(c)In proceedings in this Court, the father annexed the amended documents to multiple affidavits and repeatedly said that the Local Court found the mother to be an untruthful witness, in part because of this document, in an attempt to diminish the mother’s credibility and bolster his own. The father also used the existence of the altered documents to report to the Single Expert that the mother is not a witness of credit, to prevent the Court from assessing the nature and extent of his drug use, and in an attempt to bolster his own credibility and have his version of events preferred over that of the mother.
It is worth noting that the father’s fraudulent amendment of the hospital records was found by the Court in Clayton & Clayton (No 3) to be part of a broader pattern of conduct, which became evident at the hearing, involving the falsification of evidence by the father in relation to drug testing records, trust accounting receipts, and sale records.
THE LAW
In the case of In the Marriage of P & P (1985) 9 Fam LR at 1108, Lindenmayer J stated that:
The first question which this poses for my consideration is whether I have a duty to refer the papers in this matter to the Commonwealth Attorney-General for consideration by him or his officers of whether proceedings should be commenced against either or both parties for the recovery of the income tax avoided and/or any penalties arising therefrom, or whether I should take any other, and what, steps designed to ensure the recovery of the unpaid taxes. The second question is, what effect, if any, should the fact that one or both parties may be liable to prosecution for income tax evasion have upon my determination of these proceedings.
(emphasis added)
While it is well-settled that the Court has the power to report the fact of the commission of possible offences to the relevant authority, generally by referral of various papers or evidence, the issue of whether the Court has a duty to refer has been considered in several cases. Many of these authorities have concerned financial proceedings and referrals to the Australian Taxation Office following findings of tax evasion, in which it has been considered whether a Federal Court exercising the jurisdiction of the Commonwealth has a duty to protect the revenue of the Crown. The principles distilled from these authorities are therefore of limited applicability to the circumstances of this case and will not be considered in detail in this judgment.
In Malpass & Mayson (2000) 27 Fam LR 288 at [31], the Full Court confirmed that while the Court has the power to make a referral to relevant authorities, it does not necessarily follow that the Court is always bound by a duty to report the commission of possible offences:
Despite these authorities we do not think that it necessarily follows that the Court is always under a duty to report the fact of commission of possible offences to relevant authorities including revenue authorities, although it clearly has the power to do so. Questions of degree must be relevant. There are many cases where minor irregularities are revealed in relation to taxation, social security and other issues. We think it unreasonable for the Court to burden itself with a duty to report all of these matters. Different considerations may apply in relation to more blatant and substantial irregularities. We leave the determination of this issue to be determined in a case where the point arises directly. It does not arise here for there is no dispute as to the Court's power to make such a reference, as his Honour did.
(emphasis added)
The reference by the Full Court that “questions of degree must be relevant” has been interpreted to mean that “every case is different” and such referral must be considered within the particular facts of each matter: Huda & Huda (No 2) (2020) 61 Fam LR 257 at [15].
As noted by Brereton J in Paycorp Payment Solutions Pty Ltd & Anor v Peter Singyin Chai & Anor (No 3) [2011] NSWSC 1632 at [4]:
Obviously, the Court would not refer a matter unless it thought that the evidence sufficiently disclosed the crime concerned, or that further investigation based on that evidence was very likely to do so. I think the Court is also entitled to take into account other matters, including the utility of a prosecution overall, and the nature of the offence disclosed and its consequences.
The Court is not required to provide an opportunity to parties to be heard when considering referring a matter to an appropriate authority: Huda & Huda (No 2) (2020) 61 Fam LR 257.
In this case, the Court clearly provided the parties (including the father) with an opportunity to be heard in relation to this issue by way of written submissions and the invitation to supplement their written submissions with oral submissions.
COMPETING APPLICATIONS
Mother’s position
The mother seeks that the father not be referred to the Director of Public Prosecutions.
It is the mother’s position that while the Court has the power to refer the father, the consequences and effect of such a referral must be considered in the context of the current parenting arrangements. The mother says that such referral may:
(a)Aggravate the father and / or create further hostility between the parties, particularly in circumstances where Orders have been made for the children to spend time with the father.
(b)Result in a continuation of family violence.
(c)Cause the mother to be involved in any investigation and prosecution of the father, including as a witness, which may place her and the children at further risk of harm.
(d)Cause the mother to be involved in a further set of proceedings with the father when the mother wants to end all litigation with the father, particularly in circumstances where there are ongoing criminal proceedings where the father is the defendant and the mother is the alleged victim, and the parties have been involved in court proceedings since 2013.
The mother, at [21] of her Written Submissions, submits that a primary function of this Court is to have regard to the best interests of children and seek to protect them from harm, including as a result of family violence, and that the “duty of referral should not override those interests.”
Father’s position
The father also seeks that the Court not refer the papers to the Director of Public Prosecutions.
It is his position that while the Court found that the father said in these proceedings that the Local Court found the mother to be an untruthful witness, in part because of the altered hospital records, this does not accord with the Reasons of the magistrate in the Local Court criminal proceedings.[1] The father’s counsel submits that the reasoning behind the magistrate’s findings as to the mother’s credibility was founded on various matters that does not include the mother inaccurately representing the circumstances surrounding the father’s admission to hospital in 2011. The father’s counsel submits that the father’s beliefs and representations to this Court as to the bases upon which the magistrate found the mother to be an unreliable witness do not accord with the actual evidence recorded in the transcript found at Exhibit F12.
[1] Tendered as Exhibit F12 in the final hearing.
In terms of the utility of any potential prosecution, the father submits that the Court has already accepted the proposition that family law proceedings are not to be punishment for parents’ poor conduct, and there is a risk that an “endeavour to have the father prosecuted for all or any of these offences could be interpreted as no more than a vindictive act on the part of this Court”: Fennessy & Gregorian (formerly Sanchez) [2007] FamCA 1574 at [779].
The father submits that in parenting cases where the question of referral arises, it is relevant for the Court to consider the potential impact and ramifications of a referral on each parent and the children, including if the father in this matter is imprisoned. The father, in his Written Submissions, refers to several findings made by the Court in Clayton & Clayton (No 3) in relation to his relationship with the children, including:
(a)The Single Expert’s evidence that “the children would grieve if there was a severing of the relationship between them and the father” which may include “sadness, anxiety and possibly regression”: [378].
(b)That “there will be a loss to the children if they do not have ongoing contact with their father,” and that “each of the children have a good relationship with the father and have positive views of their time with the father”: [426].
(c)That the time ordered in that Judgment sought to “promote for the children an understanding that the father continues to be interested in their lives, that he is a presence in their lives and that he has not abandoned them” while also ensuring that “the time between the father and the children is not subject to disruptions caused by the father’s drug use”: [454].
It is the father’s case that any prosecution of the father because of the referral will not set aside the outcome of the Local Court criminal proceedings, but will rather embroil the parents in future proceedings which may involve the mother being called as a witness. Given the finding in Clayton & Clayton (No 3) that “the greatest risk to the mother’s capacity to meet the children’s emotional and intellectual needs is the father and his conduct”, the father submits that there is a risk that further litigation will imperil the mother’s capacity to meet the children’s needs.
The father’s counsel also submits that it is unlikely the father will gain insight and capacity to change his behaviour if he is prosecuted, particularly if he interprets the prosecution as vindictiveness on the part of the Court and/or the mother.
DISCUSSION
The first question I must satisfy myself of is whether the evidence discloses that an offence has been committed, or that further investigation based on that evidence is very likely to prove so: Paycorp Payment Solutions Pty Ltd & Anor v Peter Singyin Chai & Anor (No 3) [2011] NSWSC 1632. While the Court is not an investigative or prosecutorial body in this respect, it is sufficient that findings have been made by the Court that a person has engaged in wrongdoing to form the basis for referral: [2019] FCCA 3857.
As outlined above, the Court made findings in Clayton & Clayton (No 3) that the father amended T Hospital records from 2011 to remove references to drug use and relied on these falsified documents in criminal proceedings in the Local Court. The father, in his Written Submissions, acknowledges that such findings may disclose potential offences under ss 253 (forgery – making false document), 254 (using false document) and 317 (tampering etc with evidence) of the Crimes Act 1900 (NSW).
I accept this proposition. I am also satisfied that the findings in Clayton & Clayton (No 3) may disclose further potential offences under the Crimes Act 1900 (NSW), including under s 319 (general offence of perverting the course of justice). I am satisfied that the nature of each of these offences is objectively serious and that all offences listed above carry a maximum penalty of imprisonment of at least 10 years.
I consider the father’s conduct in altering the T Hospital records to be a significant act on his part. The father’s conduct in altering documents is particularly egregious in circumstances where he instructed those defending him to use those altered documents to cross-examine the mother. The father then used the altered documents in final proceedings in this Court. It was only when subpoenaed records shed light on the alterations made that the father made concessions as to his wrongdoing.
I do not agree with the submissions by the father that the use of the material by the father did not lead to a finding in relation to the mother’s credibility. It is clear in the Judgment of the magistrate, which was relied on by the father in these proceedings, that findings were made in relation to the mother’s credit following cross examination by the father’s counsel. That cross examination included the use by counsel for the father of the altered documents.
Both parties raise concerns that the referral of the father will result in the parties being embroiled in further dispute, which may involve the mother being called as a witness, and that the effects of investigation and prosecution of the father may not be in the children’s best interests. While this is a possibility, it is for the father to determine how or if he defends any charges that may be brought. It is also important to note that a referral by this Court does not bind the state authorities to any particular action. As noted by Judge Howard at [21] of Huda & Huda (No 2) (2020) 61 Fam LR 257, citing an observation referred to by Hall J in Simpson v Hodges [2007] NSWSC 1230, referral of the papers is “not an exercise of judicial power and no findings are made and no injury to anyone’s reputation arises by a mere referral”.
I reject the submissions of the father’s counsel that there could be any reasonable interpretation of the Court as being vindictive if it refers the father to the Director of Public Prosecutions. The Reasons included in this Judgment focus on the father’s conduct and the decisions he made in relation to his conduct.
The father has been afforded procedural fairness in this matter. He was represented throughout the final hearing, and at interim stages.
I am of the view that a judicial officer who is satisfied that offences of the type outlined in this judgment have been committed, or are very likely to be found to have been committed following further investigation, can refer the proceedings to the relevant authority. I am satisfied that the evidence before me, including the admissions made, reasonably suggests that an offence has been committed in relation to proceedings before me and before another Court.
CONCLUSION
In view of the steps taken by the father to alter records which he then instructed counsel to use in New South Wales Local Court proceedings, and noting the findings made by this Court, I conclude that in the circumstances of this case, the Reasons for Judgment delivered 27 August 2024 (Clayton & Clayton (No 3)), this Judgment, the Transcripts from the final hearing and the relevant Exhibits of the final hearing (being Exhibits F11, F12 and M26) are papers that should be referred to the NSW Director of Public Prosecutions.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lioumis. Associate:
Dated: 14 November 2024
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