Gulek & Sidu (No 3)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Gulek & Sidu (No 3) [2024] FedCFamC2F 1234

File number(s): SYC 2542 of 2024
Judgment of: JUDGE STREET
Date of judgment: 2 September 2024
Catchwords: FAMILY LAW - PROCEDURE – leave granted to the applicant and the respondent to use documents filed in these proceedings for criminal proceedings
Legislation:

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth)

Cases cited:

Holpitt Pty Ltd v Varimu Pty Ltd(1991) 29 FCR 576

Hearne v Street [2008] HCA 36

Division: Division 2 Family Law
Number of paragraphs: 9
Date of hearing: 2 September 2024
Place: Sydney
Solicitor for the Applicant: Ms N Agha of A&E Lawyers
Solicitor for the Respondent: Mr M El-Harris of Buckley Lawyers Pty Ltd
Solicitor for the Independent Children’s Lawyer: Ms K Rutkowska of Ark Law Lawyers

ORDERS

SYC 2542 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS GULEK

Applicant

AND:

MR SIDU

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE STREET

DATE OF ORDER:

2 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.Leave is granted to the applicant and the respondent to use any affidavit material or documents filed in these proceedings, including expert reports, tender bundles, exhibits, and/or any interim judgment, in their respective defence of the criminal proceedings and those documents are not to be used for any other purpose.

2.Leave is granted to the parties, including the ICL, to provide the Court Child Expert with any material that they wish, copied to the other party/ICL.

3.Leave is granted to the respondent father to file and serve a further affidavit, if he wishes, in relation to the material that has been filed.

4.Leave is granted to the parties, including the ICL, to provide consent to be made in chambers, if appropriate.

5.Liberty is granted to the parties, including the ICL, to apply on three (3) days notice.

THE COURT NOTES THAT:

A.The incident in early 2024 giving rise to the two prosecutions of both the applicant and the respondent is already the subject of evidence in these parenting proceedings, and the Court is firmly of the view that it is not in the best interests of the children for these competing criminal proceedings to be pursued but rather the incident may be taken into account in advancing the parenting orders to made in the best interests of the children.

B.If the Court had power to do so, it would restrain the criminal proceedings from being further pursued against both the applicant and against the respondent.

C.The Court invites the prosecutor in each prosecution to take into account these views in respect of whether any criminal prosecution should be further pursued against either the applicant or the respondent.

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…

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Details
Case
[2024] FedCFamC2F 1234
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Ms Gulek, the applicant, and Mr Sidu, the respondent, were engaged in parenting proceedings that had been influenced by a criminal incident involving both parties. This incident had led to separate criminal prosecutions against each party. The court was asked to consider the implications of these criminal proceedings on the ongoing family law matters and to decide whether the criminal proceedings should continue. The Independent Children's Lawyer also participated in the proceedings, representing the interests of the children involved.

The legal issues before the court were whether the documents and affidavits from the family law proceedings could be used in the criminal proceedings, and if the criminal prosecutions should be halted to avoid conflicting with the family law objectives of determining parenting orders in the best interests of the children. The court needed to balance the need for a fair criminal trial with the best interests of the children in the family law context.

In its decision, the court recognised that the criminal incident was already a matter of record in the family law proceedings and was critical in determining appropriate parenting orders. The court emphasised that it was not in the best interests of the children for separate criminal proceedings to continue, as they could complicate and delay the resolution of the parenting issues. Consequently, the court granted leave for the parties to use the family law documents in their criminal defences, but strictly limited their use to the criminal proceedings. The court also expressed a wish that, if it had the authority, it would restrain the criminal proceedings to prevent them from interfering with the family law process. The court further invited the prosecutors to consider these views when deciding whether to continue with the criminal cases.

The court's final orders allowed the parties to use the family law documents in their criminal defences, permitted the filing of additional affidavits, and gave the parties the ability to apply for further orders. The court's decision aimed to ensure that the family law proceedings could proceed without the hindrance of concurrent criminal trials, focusing on the primary goal of determining parenting orders that serve the best interests of the children.

Orders

Orders of the court

SYC 2542 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS GULEK

Applicant

AND:

MR SIDU

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE STREET

DATE OF ORDER:

2 SEPTEMBER 2024

THE COURT ORDERS THAT:

1. Leave is granted to the applicant and the respondent to use any affidavit material or documents filed in these proceedings, including expert reports, tender bundles, exhibits, and/or any interim judgment, in their respective defence of the criminal proceedings and those documents are not to be used for any other purpose.

2. Leave is granted to the parties, including the ICL, to provide the Court Child Expert with any material that they wish, copied to the other party/ICL.

3. Leave is granted to the respondent father to file and serve a further affidavit, if he wishes, in relation to the material that has been filed.

4. Leave is granted to the parties, including the ICL, to provide consent to be made in chambers, if appropriate.

5. Liberty is granted to the parties, including the ICL, to apply on three (3) days notice.

THE COURT NOTES THAT:

A. The incident in early 2024 giving rise to the two prosecutions of both the applicant and the respondent is already the subject of evidence in these parenting proceedings, and the Court is firmly of the view that it is not in the best interests of the children for these competing criminal proceedings to be pursued but rather the incident may be taken into account in advancing the parenting orders to made in the best interests of the children.

B. If the Court had power to do so, it would restrain the criminal proceedings from being further pursued against both the applicant and against the respondent.

C. The Court invites the prosecutor in each prosecution to take into account these views in respect of whether any criminal prosecution should be further pursued against either the applicant or the respondent.

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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