In 2020, Mr Garside assaulted the eldest child of his marriage, who was then not quite aged 4. He was arrested, then remanded in custody with bail refused. He pleaded guilty to the assault charge in 2022 and was sentenced to a period of imprisonment, with his non-parole period extending until 2029.
The eldest child and the mother were each diagnosed with post-traumatic stress disorder following the assault.
In 2004, while he was still in goal, Mr Garside filed an application seeking parenting orders. He sought orders enabling his interaction with the children, an order for the appointment of an Independent Children’s Lawyer and an order for the preparation of a Family Report.
The mother filed a response to the application, seeking an order for its summary dismissal on one of two grounds – firstly because the application lacked any reasonable prospect of success and secondly because the application comprised proceedings which were harmful to her and the eldest child.
The mother’s summary dismissal application was heard in July, 2024. Judgment was delivered 2 weeks later, with the judge summarily dismissing the father’s application on the following grounds:
“122. In these circumstances, I conclude that [the applicant] has no reasonable prospects of being successful in his case and there are no real issues of fact and law which the court needs to determine in this matter. On this ground alone his application should be dismissed.
- In addition, I am satisfied that, given the evidence currently available to me, I can have reasonable grounds to believe that the continuation of the proceedings would result in both [the mother] and [the elder child] suffering harm.”
The primary judge went on to make an order restraining the father from instituting any further proceedings under the Family Law Act without the prior leave of the court.
The father filed an application seeking leave to appeal from the summary dismissal of his parenting application. He needed leave to appeal, because of the primary judge’s order requiring him to obtain leave to file any further application under the Act and secondly, because his application seeking leave to appeal was filed 4 months outside the time limit.
Justice Austin, sitting as a single judge of the Full Court, ruled that none of the grounds of appeal in the Notice of Appeal filed with the application for leave, cast any doubt on the correctness of the trial judge’s decision. For that reason, the application for leave to appeal was refused.
The proceedings are noteworthy by reason of the use of the summary dismissal avenue to respond to parenting proceedings, rather than allowing the proceedings to follow the usual course of preparation of a family report and proceeding to a full defended hearing. It is considered that the summary dismissal response would only be available in cases with a fact situation fairly similar to the facts in Garside.
Garside [2024] FedCFamC1A 250 (23 December 2024)
Written by
Stephen Rugendyke
Special Counsel
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