FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Killough & Garbiec (No 2) [2023] FedCFamC1F 1079
File number: SYC 1133 of 2019 Judgment of: CHRISTIE J Date of judgment: 13 December 2023 Catchwords: FAMILY LAW – INTERIM PARENTING – Summary dismissal – Where the Court own its own initiative proposes to summarily dismiss the applicant’s Application in a Proceeding – Where the matter is listed for final hearing in three months time – Where the applicant seeks a complete reversal of the parenting arrangements of the children – Where the application has no reasonable prospects of success – Application in a Proceeding summarily dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII, s 45A
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 46
Cases cited: Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd (2006) 236 ALR 720
Lindon v Commonwealth (No 2) (1996) 136 ALR 251
Mahoney & Dieter (2020) FC 93-955
Newett & Newett (No 8) [2023] FedCFamC1A 7
Division: Division 1 First Instance Number of paragraphs: 24 Date of hearing: 11 December 2023 Place: Sydney For the Applicant: Litigant in person Solicitor for the Respondent: Long Saad Woodbridge Lawyers Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
SYC 1133 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GARBIEC
Applicant
AND: MR KILLOUGH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
13 DECEMBER 2023
THE COURT ORDERS THAT:
1.The mother’s Application dated 23 November 2023 is dismissed in reliance upon the provisions of s 45A of the Family Law Act 1975 (Cth) and s 46 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J
These are interim parenting proceedings under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) in relation to the parties’ children, Y (also referred to in court documents by another name) born 2018 (age five) and X born 2016 (age seven). The father is the applicant in the substantive proceedings and the mother is the respondent in the substantive proceedings.
On 23…
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- AGLC
- Killough & Garbiec (No 2) [2023] FedCFamC1F 1079
- Case
- [2023] FedCFamC1F 1079
- Decision Date
CaseChat Overview and Summary
The court considered the mother's extensive affidavits, which contained numerous allegations of criminal acts by the father and his legal representatives. The judge noted that the mother's evidence, even at its highest, did not establish an entitlement to the relief she sought on an interim basis. The court found that the relief relating to criminal matters had no reasonable prospect of success, and that the parenting orders were not supported by the mother's assertions. Additionally, the court highlighted that the mother's request to join the father's partner as an applicant lacked proper grounds and service details.
The court dismissed the mother's application in reliance on sections 45A of the Family Law Act 1975 and 46 of the Federal Circuit and Family Court of Australia Act 2021. The decision emphasised that the guiding principle for summary dismissal remains "doing what is just," as per Lindon v Commonwealth (No 2). The dismissal was made without prejudice to the mother's right to pursue the matter at the final hearing scheduled three months later.
The final order dismissed the mother's application in its entirety, with the dismissal to be recorded in the court's records. The form of the order was subject to minor corrections or variations as permitted by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. This case underscores the importance of demonstrating reasonable prospects of success for interim parenting orders and the court's discretion to dismiss applications that lack such prospects.
Orders
Orders of the court
SYC 1133 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS GARBIEC
Applicant
AND:
MR KILLOUGH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
13 DECEMBER 2023
THE COURT ORDERS THAT:
1. The mother’s Application dated 23 November 2023 is dismissed in reliance upon the provisions of s 45A of the Family Law Act 1975 (Cth) and s 46 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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
The overriding guiding principle governing summary dismissal of proceedings remains “doing what is just”: Lindon v Commonwealth (No 2) at 255-256.CONSIDERATION The mother’s Application sought a raft of orders which were categorised by the applicant as:(a)Procedural orders – including the joinder of the father’s partner to the proceedings, acknowledgement that the criminal prosecution of the father, his partner and his solicitor may be listed at the High Court and that all correspondence and legal documents be provided to the Australian Federal Police;(b)Recovery orders for the children;(c)Parenting orders – whereby the mother would have sole parental responsibility and the children would live with her and spend no time with the father;(d)Protective orders – being to restrain the father and his partner;(e)Cost orders;(f)Subpoena orders – being the issue of subpoenas regarding the father, his partner and his solicitor and claiming to assist the Australian Federal Police and the Mother in criminal prosecution; and(g)Other orders – being the release of the mother’s passport and restraining the father and his partner from changing the youngest child’s name without the mother’s consent. Conceptually the relief falls into three categories:(1)Procedural orders;(2)Parenting Orders; and(3)Orders relating to “criminal prosecution”. The mother filed with her application an affidavit dated 23 November 2023 of 96 pages (including annexures) which, again, traverses a significant amount of material. A further affidavit was filed on 8 December 2023 of 55 pages (including annexures) exclusively detailing “[multiple] instances of criminal acts” conducted by the father’s solicitor and “[multiple] criminal acts perpetrated” by the father’s partner. To the extent the mother raises prospects of a (private?) criminal prosecution this Court would have no role. The substantive proceedings concern the parties’ children and the task will be to make orders in the best interests of those children. I am satisfied that there is nothing in the mother’s affidavit evidence – taken at its highest – which establishes an entitlement to the relief she seeks on an interim basis. I comfortably find that the relief which relates to criminal matters has no reasonable prospect of success. The mother raises significant allegations against the father and his legal representatives which are disputed and may be matters in which I am asked to make a finding upon final hearing. As presently before the Court, those matters are little more than assertions and as such incapable of supporting the parenting orders which the mother seeks. To the extent the mother seeks that the father’s partner be “added to the files in these court proceedigs [sic] as an applicant”, the mother’s material does not identify the asserted purpose of joinder or establish that the proposed party has been served. In those circumstances, the application has no reasonable prospect of success.