Killough & Garbiec (No 2)
[2023] FedCFamC1F 1079
•13 December 2023
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
Spencer v Commonwealth (2010) 241 CLR 118
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 November 2023 the mother filed an Application in a Proceeding.
On 27 November 2023 I made orders listing the Application for mention on 11 December 2023, being the same date that the matter was listed for case management for directions for final hearing.
The orders sought in the mother’s application traverse a significant amount of material, including criminal proceedings and the issue of subpoenas in those proceedings, parenting orders, injunctive relief, joinder of a party to parenting proceedings and costs.
On 11 December 2023 I listed the matter for final hearing for three days commencing 11 March 2024 in the Court’s rolling list. I also made the following order summarily dismissing the mother’s Application a Proceeding:
15. 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) and I reserve my reasons in respect of that summary dismissal.
These are those reasons.
THE LAW
Section 45A of the Act relevantly provides:
No reasonable prospect of successfully prosecuting proceedings
(2)The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:
(a)the first party is defending the proceedings or that part of the proceedings; and
(b)the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.
When there is no reasonable prospect of success
(3) For the purposes of this section, a defence or proceedings or part of proceedings need not be:
(a) hopeless; or
(b) bound to fail;
to have no reasonable prospect of success.
…
Action by court on its own initiative or on application
(7)The court may take action under this section on its own initiative or on application by a party to the proceedings.
The Court’s discretionary power to, on its own initiative, summarily dismiss whole or any part of a proceeding where the proceedings have no reasonable prospects of successful prosecution is also provided for in s 46(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
The phrase “no reasonable likelihood of success” is conceptually different from the “doomed to fail” test: Mahoney & Dieter (2020) FLC 93-955.
In Newett & Newett (No 8) [2023] FedCFamC1A 7 (“Newett”), the Full Court of the Family Court of Australia referred to the reasons of French CJ and Gummow J in Spencer v Commonwealth (2010) 241 CLR 118 saying “the criterion of a ‘reasonable prospect’ of success has been understood … to mean a ‘real’ rather than ‘fanciful’ prospect” and the expression ‘no reasonable prospects of success’ applies to a case in which the pleadings disclose “no reasonable cause of action and their deficiency is incurable”.
The Full Court in Newett further explained at [61]:
The question of whether a proceeding has no reasonable prospect of success necessitates the making of value judgments “in the absence of a full and complete factual matrix and full argument”, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 259 ALR 319 at [28]. However, the incompleteness of the factual matrix is accommodated in favour of the respondent to the summary dismissal application by taking their evidence “at its highest”. In Ritter & Ritter (2020) FLC 93-957 at [66], the Full Court explained:
The determination of [summary judgment] must only take into account the material on which the respondent seeks to make out the case, or as often expressed takes the respondent’s case “at its highest” unless the respondent’s version is inherently incredible or unreliable (see Munnings v Australian Government Solicitor (1994) 68 ALJR 169 at 171; Bigg & Suzi (1998) FLC 92-799; Webster v Lampard (1993) 177 CLR 598 at 608). …
The power to summarily dismiss is to be used rarely and cautiously given it is a serious matter to deprive a person of access to courts of law: Lindon v Commonwealth (No 2) (1996) 136 ALR 251 (“Lindon v Commonwealth (No 2)”) at 255-256; Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd (2006) 236 ALR 720 at [45].
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.
Most significantly, the mother’s application sought parenting orders which provided that:
(a)following four sessions with a child psychologist (it being unclear on the order, as pleaded, who should attend the sessions with a child psychologist), the children be returned to her;
(b)in the event the children are not returned to her, “any person” be authorised and directed with the necessary assistance and, if necessary, by force, to enter and search any premises (including vehicles, vessels or aircrafts) to recover the children and deliver them to her;
(c)she would have sole parental responsibility for the children; and
(d)the children live with her and spend no time with the father.
The children have been the subject of parenting proceedings in Australia and in overseas jurisdictions for over four years. The parties have a final hearing in this Court in three months time. The children have not seen or spoken with the mother since December 2020. It would not be appropriate for the Court to entertain an interim application seeking the complete reversal of the children’s living arrangements where there is a significant volume of controversial evidence that, at an interlocutory hearing, would be untested and could not be the subject of findings of fact. The opportunity for the testing of evidence and findings of fact to be made will present itself in three months when the matter is before me for final hearing.
Without commenting on the merits of either party’s application for final orders, taking the mother’s material at its highest, the mother’s interim application has no reasonable prospects of success and it is therefore appropriate for the application to be summarily dismissed.
When the application was mentioned before me, I advised the mother of my intention to summarily dismiss the application and gave her an opportunity to be heard. The mother stressed her “need” to have contact with her children and the commencement of a “reunification” process.
I accept that it is difficult for the mother to not have had contact with the parties’ children since 2020. However, for the reasons above, the Court will not be in a position to determine whether it is in the best interests of the children to have contact with the mother and commence reunification with her until the Court hears all the evidence and is in a position to make findings of fact in approximately three months time. It is the mother’s interim application which disclosed no reasonable prospect of success. In short compass she will be able to prosecute her application for final orders.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 13 December 2023
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