Killough and Garbiec

[2019] FamCA 394

FAMILY COURT OF AUSTRALIA

KILLOUGH & GARBIEC [2019] FamCA 394

FAMILY LAW – CHILD SUPPORT – stay of the current child support assessment granted.

Child Support (Assessment) Act 1989 (Cth) s 140
Child Support (Registration and Collection) Act 1988 (Cth) s 111C

APPLICANT: Mr Killough

RESPONDENT: Ms Garbiec

FILE NUMBER: SYC 1133 of 2019

DATE DELIVERED: 19 June 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Henderson J

HEARING DATE: 19 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Turner

SOLICITOR FOR THE APPLICANT: Clinch Long Woodbridge Lawyers

Orders

1. It is declared that the removal of the children X born … 2016 and Y born … 2018 from Australia was wrongful and without the knowledge and consent of the father.

2. Pending further Order, a stay of child support payable by the father pursuant to section 111C of the Child Support (Registration and Collection) Act 1988 and section 140 of the Child Support (Assessment) Act 1989 is granted on the basis he continues to pay $1,112 per month for the children.

3. The matter is placed in the pool of matters awaiting final determination and to await the outcome of the Hague proceedings.

4. Leave is granted to the parties to relist the matter on 7 days’ notice.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Killough & Garbiec has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1133 of 2019

Mr Killough

Applicant

And

Ms Garbiec

Respondent

REASONS FOR JUDGMENT

1. This is an application filed by a father in most distressing circumstances. One can only sympathise with him. There are two children of this relationship/marriage: X, born in 2016; and Y, born in 2018; both virtually babies.

2. The parties’ relationship broke down. From about April 2018, the father began to pay child support, in the sum of $1,112 per month. Then, when daughter was born, he paid the rate of $1,659.17 a month, and this has now gone up to close to a figure of $3,000 a month.

3. The father has spent time with the children on a regular basis. He visited them on 23 February 2019 at Suburb B and he noted their home was empty. He filed his application on 25 February 2019 seeking an Airport Watch List order, rang the Department of Human Services, believing his children had been abducted and removed from the country.

4. Unfortunately, he was right. He was rung by a woman called Ms C, in April 2019, who said:

   “I am the nanny of your children, [X] and [Y]. I am in Greece. I am concerned that [Ms Garbiec] is mentally unstable and she has wrongfully taken the children from you. I will do anything I can to help you have the children returned to Australia.”

5. The children have new Country F passports, which the father has no idea how they were obtained by the mother. The mother spirited the children away from the place they had always known, Australia, and most particularly from their father, to Greece.

6. The father has moved expeditiously as anybody could to redress this wrong for his children. There are now Hague proceedings which have been commenced by the Central Authority, and have been accepted by the Greece authorities. This occurred in May, and that matter will run out its usual course.

7. I am content today, to make an order that the Court declares that the mother wrongfully removed the children from Australia, without the knowledge, consent or permission of the father, and note that the father has commenced Hague Convention proceedings.

8. What the father has asked in his application, which is supported by his affidavit of 4 June 2019, is that I stay the operation of the current child support assessment. I propose to stay the operation of the current assessment on terms. It is a significant sum, and I will stay it on terms, because it is clear from the evidence the father has received from Ms C that the mother may be working. It is also clear, from father’s annexure 1, a text received from the mother where she says:

   “I’m not coming back, neither children will. I’m not expecting any money from you, either. That is why we live in one of the cheapest places where I can afford life as a single mum and spend quality time with the kids.”

9. It is fairly clear that the children are being financially cared for; that the mother is able to care for the children in Greece, as she has said she can, that the cost of living in Greece apparently is far less than in Australia. This position is based, on the mother’s own evidence in that text message.

10. I will grant a stay of the current child support assessment, pursuant to section 140 of the Child Support (Assessment) Act 1989, but on terms. The terms are that the child support payable by the husband will be at the rate as assessed on 1 April 2018, in the sum of $1,112 per month. That, I believe, is an appropriate order as it is just and equitable. It provides financial support for the children, and the father is naturally most concerned that his children are well supported; and, given that the Court is completely unaware of the mother’s financial situation, whether she is working, earning income, which may affect the current child support assessment, the Court has done its best, on this interim basis, to make an order that provides for the needs of the children but assists the father in this exceedingly difficult time, given the costs he will be incurring in these proceedings.

11. Therefore I make the stay on those terms.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 19 June 2019.

Associate:  

Date: 27 June 2019