Clayton & Clayton (No 5) - [2024] FedCFamC2F 1593

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clayton & Clayton (No 5)

Details

AGLC: Clayton & Clayton (No 5) [2024] FedCFamC2F 1593
Case: [2024] FedCFamC2F 1593
Decision Date: 14 November 2024

CaseChat Overview and Summary

In Clayton & Clayton (No 5), the Federal Circuit and Family Court of Australia dealt with a complex family law matter involving allegations of fraud and misconduct by one of the parties. The applicant, Ms Clayton, sought various orders relating to the care and custody of the children, and the respondent, Mr Clayton, was found to have fraudulently altered hospital records for use in criminal proceedings in the Local Court. Both parties requested that the court's findings not be referred to the New South Wales Director of Public Prosecutions. The court was tasked with determining whether to refer the case to the Director of Public Prosecutions and what orders to make regarding the outstanding applications and the proceedings.

The court examined the implications of Mr Clayton's fraudulent actions and considered the appropriate legal response. It noted that Part XIVB of the Family Law Act 1975 (Cth) prohibits the publication of proceedings that identify persons involved in family law proceedings, except under specific circumstances. The court also assessed the potential impact of its decision on the ongoing family law matters and the broader implications for the administration of justice.

In its judgment, the court decided to refer the case to the New South Wales Director of Public Prosecutions, given the serious nature of the fraud committed by Mr Clayton. The court ordered that the Registrar forward the reasons for judgment, the transcript of the proceedings, and relevant exhibits to the Director for consideration of potential prosecution. All outstanding applications were dismissed, and the proceedings were removed from the list of matters awaiting finalisation.

The court's order was made in accordance with the Family Law Act 1975 (Cth) and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The court emphasised that the form of the order was subject to entry in the court’s records and that any minor typographical or grammatical errors could be reviewed or varied pursuant to the relevant rules.

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:

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.

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.

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

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