Gulek & Sidu (No 3)

[2024] FedCFamC2F 1234

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 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).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE STREET

1. These parenting proceedings were commenced on 5 April 2024.  There was an incident that is deposed to in the affidavits between the parties in early 2024 as a result of which both the applicant and the respondent are facing criminal charges which are to be heard later this year. 

2. The applicant has sought for orders for release of particular affidavits, subpoenaed materials and also an interim judgment.  The respondent has contended that there should be no waiver of Hearne v Street, formerly called a Harman undertaking (See Hearne v Street [2008] HCA 36), but identified by the High Court of Australia as being an actual obligation enforceable by the Courts. Rule 6.04 and 6.36 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) also emphasises that same obligation.

3. Mr El-Harris, on behalf of the respondent, submitted that the materials which were being sought by the applicant, may have little relevance and/or may prejudice his client, referring to alleged extraneous material and contention in relation to patterns of behaviour.  The incident that occurred in early 2024, is one in respect of which there are competing allegations as to who was the aggressor and who was the victim.  The allegations, on either parent's account, involve a conflict that occurred in front of a child.  The detrimental effect of physical violence in front of a child is overwhelming. 

4. These parenting proceedings are ones in respect of which the Court will, in due course, make orders in accordance with the best interests of the two children.  The incident that occurred in early 2024 is the subject of evidence already before this Court, and this Court is the appropriate Court for the determination of the impact of that dispute upon the child in relation to parenting orders.  On neither view, as to whichever party is the alleged aggressor or victim, if there was a conviction against either party, is the type of incident one that would give rise to any custodial sentence.  If this Court had power to do so, this would be a case where the Court would find it was in the best interests of the children that there be no criminal prosecution of either party and would restrain the criminal prosecution against both the applicant and the respondent. The Court currently does not have such a power. 

5. The Court does, however, propose to make an appropriate notation at the end of the orders that the Court would have restrained the criminal proceedings from being further pursued, is of the view that the criminal proceedings are not in the best interests of the children, and invites the prosecutor in each prosecution to take into these views in respect of whether any criminal prosecution should be further pursued against the applicant or the respondent.

6. The Court heard from Ms Rutkowska, on behalf of the ICL, as to why the interim judgment should not be provided and also a concern in respect of material produced on subpoena.  The concerns raised by Ms Rutkowska are not without weight. However, the greater interest, in relation to criminal proceedings, is ensuring that each party is in a position to defend herself or himself in respect of criminal allegations.  Past history of alleged financially controlling behaviour or other family violence are clearly relevant in relation to evaluating the credibility of the competing contentions in respect of the alleged incident that occurred, to the extent that findings have to be made.

7. It is not immediately apparent to the Court, how those findings could be made beyond reasonable doubt in a way that would determine the matter in respect of this Court, when it comes back to dealing with the parenting matter, of course there is also evidence in respect of an alleged observations made by one of the children, if accepted into evidence.  All of those are circumstances which it is in the interest of the administration of justice to permit each party, for the purpose of his or her defence, to have access to and use any of the affidavit material, expert reports or materials produced on subpoena or the interlocutory judgment, if they see fit to do so.  The Court does accept Mr El-Harris' submission that the consequence of the potential use of such a vast amount of material makes it unlikely that there will be an efficient and brief prosecution of either the applicant and the respondent. 

8. For the reasons the Court has already identified, in this case criminal proceedings are not one where the dispute, in respect of the incident in early 2024 should be determined.  That incident should be taken into account in these parenting proceedings in determining the future best interests of the children and advancing a meaningful relationship with both parents, insofar as able to do so without unacceptable risk.  The Court is satisfied that there are special circumstances within the observation made by Burchett J in Holpitt Pty Ltd v Varimu Pty Ltd(1991) 29 FCR 576, that warrant disclosure of the material that has been produced in the course of these parenting proceedings, if contrary to the Court's view, the criminal prosecution is to be further pursued against either parent.

9. Accordingly, the Court makes the above orders.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Oral Published Reasons for Judgment of Judge Street.

Associate:

Dated:       9 September 2024