GASTANA & MOHAMMED SALAH - [2013] FamCA 113

FAMILY COURT OF AUSTRALIA

GASTANA & MOHAMMED SALAH

[2013] FamCA 113

FAMILY LAW – CHILDREN – With whom a child spends time – contravention

FAMILY LAW – CHILD ABUSE – Whether the mother made up false allegations of sexual abuse against the father – Where there is no prima facie case to answer

FAMILY LAW – EVIDENCE – Standard of proof

FAMILY LAW – PRACTICE AND PROCEDURE – Abuse of process – Whether proceedings are frivolous or vexatious

FAMILY LAW – JURISDICTION – Inherent – Where the Court does not have inherent jurisdiction to make an order restraining further applications to the Court

Family Law Act s 118
Evidence Act s 140
Family Court Rules r 11.04

Commonwealth Trading Bank v Inglis (1974) 131 CLR 311
Vlug v Poulos (1997) FLC 92-778
K v R (1997) 22 FamLR 592
Re W (Sex Abuse: Standard of Proof) [2004] Fam CA 768

APPLICANT:

Ms Gastana

RESPONDENT:

Mr Mohammed Salah

FILE NUMBER:

BRC

6504

2009

DATE DELIVERED:

28 February 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

26 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Andrew

SOLICITOR FOR THE APPLICANT:

Legal Aid Queensland

FOR THE RESPONDENT:

Mr Mohammed Salah in Person

Orders

The mother’s Application in a Case filed 18 January 2013 is dismissed.
Any further application initiating proceedings or application for contravention filed by the father or the mother are to be listed in the first instance for hearing before his Honour Justice Forrest.

IT IS DECLARED THAT

A.I am satisfied that no other interim or procedural orders nor any orders pursuant to s 69ZW or s 68B of the Family Law Act should be made at this point in time.
B.I do not find that the mother has falsely made allegations that the children have been sexually abused by the father and/or other member of his family.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6504 of 2009

Ms Gastana

Applicant

And

Mr Mohammed Salah

Respondent

REASONS FOR JUDGMENT

On 22 January 2013, I heard and dismissed a contravention application brought against the mother by the father in these proceedings. He had alleged that the mother had contravened without reasonable excuse certain final parenting Orders made by me on 15 June 2011 providing for their two young children to spend time with him.
The father’s application was dismissed without the mother being called on to “plead” to the alleged contravention, for I determined, after hearing submissions, that the evidence the father filed in support of the application did not establish a case for the mother to answer.
On the same day, I adjourned an application in a case filed by the mother just a few days before the hearing of the contravention application for hearing on Tuesday…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading GASTANA & MOHAMMED SALAH

Details

AGLC: GASTANA & MOHAMMED SALAH [2013] FamCA 113
Case: [2013] FamCA 113
Decision Date: 28 February 2013

CaseChat Overview and Summary

In the matter of *Gastana & Mohammed Salah*, heard before Forrest J, the dispute concerned allegations of child abuse and contraventions of parenting orders. The mother had filed an Application in a Case on 18 January 2013, which was subsequently dismissed.

The court was required to determine whether the mother had falsely made allegations of sexual abuse against the father and/or other members of his family. Additionally, the court considered whether the proceedings constituted an abuse of process, being frivolous or vexatious, and the standard of proof applicable to such allegations.

Forrest J found that he was not satisfied that the mother had falsely made allegations of sexual abuse. The court also declared that no interim, procedural, or specific orders under sections 69ZW or 68B of the *Family Law Act 1975* (Cth) were warranted at that time. The mother's application was dismissed. Any future applications by either parent initiating proceedings or seeking contravention orders are to be listed before Forrest J in the first instance.

Orders

Orders of the court

The mother’s Application in a Case filed 18 January 2013 is dismissed.

Any further application initiating proceedings or application for contravention filed by the father or the mother are to be listed in the first instance for hearing before his Honour Justice Forrest.

IT IS DECLARED THAT

A. I am satisfied that no other interim or procedural orders nor any orders pursuant to s 69ZW or s 68B of the Family Law Act should be made at this point in time.

B. I do not find that the mother has falsely made allegations that the children have been sexually abused by the father and/or other member of his family.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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