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 of 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

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

2. 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

1. 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.

2. 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.

3. 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 26 February 2013. By that application, the mother sought an order that the father not be permitted to institute proceedings under the Family Law Act in relation to their two children without the leave of a judge of a court having jurisdiction under the Act first obtained.

4. The hearing of the application was adjourned to allow the father time to prepare to respond to it. I also gave the father, on his application, leave to file a Form 4 Notice of Child Abuse pursuant to s 67Z of the Act on that day in January. In that document, the father alleged, in general terms, that the mother had made a number of false allegations of sexual abuse of their children by the father and one of his other children; schooled the children to make false disclosures about being sexually abused; and had been found to have caused emotional abuse by her actions. All of those allegations seemed to be part of the father’s case against the mother in the contravention application as he alleged the children’s time with him had been interrupted for several months due to these “false” allegations made by the mother.

5. As I determined to dismiss the contravention application because the father’s evidence did not make out a prima facie case to answer by the mother, I did not turn my mind to the issues raised by the Form 4 Notice of Child Abuse as required by s 67ZBB of the Family Law Act.

6. On Tuesday 26 February at the commencement of the hearing of the application, the father brought to the Court’s attention that he understood and expected the Form 4 Notice to be considered as well as the mother’s application. Counsel for the mother submitted that I should not consider it as the proceedings in respect of which it had been filed had been concluded by the dismissal of the contravention application. After considering the matter, particularly the obligations imposed on the Court by s 67ZBB of the Act consequent upon the filing of a Form 4, I determined that I was obliged to consider it and would do so in conjunction with the hearing of the mother’s application.

7. The father relied upon one affidavit filed 15 February 2013 in support of his opposition to the mother’s application and a further two affidavits filed that same day going to the matters raised in the Form 4.

8. The father also tendered into evidence (exhibit 2) a bundle of copies of documents that were produced pursuant to subpoena he had caused to be issued. Included were significant numbers of documents from the files of the Queensland Department of Communities, Child Safety and Disability Services relating to that Department’s and the Queensland Police Service’s investigations of child protection notifications received in respect of the children.

9. The father took me carefully through the documents contained in exhibit 2 and ultimately made submissions not only in respect of the mother’s application against him but also in support of his argument that the Court should find that the mother deliberately and falsely fabricated allegations of sexual abuse against him and his older son with a view to preventing him from having a relationship with their two young children and that she “coached” their two children into making the false allegations as part of her plan.

10. Although the father had no parenting application on foot at the time, he urged the Court to make orders, consequent upon making the findings he was urging upon the Court, as the Court considered appropriate. When asked what orders he submitted the Court should make in such circumstances, the father would not particularise any such orders, saying, as I understood him, that he would prefer to leave it to the Court to determine.

11. At the end of the hearing on 26 February, because I was committed to attending a Court meeting after Court, I determined that I would pronounce my judgment but reserve the giving of my reasons to a later date.  I did pronounce my judgment. I made the Orders that are set out at the commencement of these reasons. These are my reasons for making those orders.

Why dismiss the mother’s application as I did?        

1. Counsel for the mother pointed to three sources of power for the Court to make the orders the mother sought. They are:

   (a)the inherent power of the Court to act to prevent abuse of its own process;

   (b)the express power conferred by s 118 of the Family Law Act;

   (c)the express power conferred by Rule 11.04 of the Family Court Rules

2. Counsel for the mother relied, ultimately, on the Full Court’s decision in Vlug v Poulos (1997) FLC 92-778 in support of the submission that the Court has inherent jurisdiction to make the order the mother seeks.

3. With respect, I do not consider that the Full Court in that case determined that the Court does have an inherent power to make Orders such as sought by the mother in this case. The Full Court at 84,606-607 actually pointed out that the High Court has previously held that a court has “no inherent jurisdiction to restrain a person from commencing new proceedings against any person without leave of the court but that a court does have inherent jurisdiction to restrain a person from making unwarranted and vexatious applications in an action which is pending in the court without the leave of the court.” (my emphasis) see Commonwealth Trading Bank v Inglis (1974) 131 CLR 311. The Full Court went on to consider the application of the now superseded Order 40 Rule 6 of the Family Law Rules and found that it did, in the circumstances, give the Court the power to make such an order where the person being restrained from commencing any further proceedings without the leave of the court was found to have frequently and without reasonable grounds instituted vexatious legal proceedings.

4. Accordingly, as there are, at this moment, no proceedings on foot in the Court as between the father and the mother, I do not consider that there is an inherent power in the Court to make the order the mother now seeks.

5. What of s 118 of the Act? It says:

   (1)The court may, at stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:

   (a)dismiss the proceedings;

   (b)make such order as to costs as the court considers just; and

   (c)if the court considers appropriate, on the application of a party to the proceedings – order that the person who instituted the proceedings shall not without leave of a court having jurisdiction under this act, institute proceedings under this Act of the kind or kinds specified in the order;

   and an order made by a court under paragraph (c) has effect notwithstanding any other provision of this Act.

6. Again, with respect to counsel for the mother, it is clear that a necessary pre-requisite to the exercise of the power in s 118 (c) is a prior or simultaneous dismissal of a proceeding instituted by the person against whom the order is sought which the Court dismissed because it was satisfied that the proceeding was frivolous or vexatious. See Vlug v Poulos (1997) FLC 92-778 at 84,603.

7. In this matter, I did not dismiss the father’s contravention application because I was satisfied that it was frivolous or vexatious but rather because I found that it did not establish a prima facie case for the mother to answer. Accordingly, I do not consider I have the power under s. 118 to make the order the mother now seeks.

8. What then of Rule 11.04 of the Family Law Rules 2004? It says:

   (1)If the court is satisfied that a party has frequently started a case or appeal that is frivolous, vexatious or an abuse of process, it may:

   (a)   dismiss the party’s application; and

   (b) order that the party may not, without the court’s permission, file or continue an application.

9. This is clearly the successor rule to the previous Order 40 Rule 6, reworded to take into account the concerns that were discussed by the Full Court in Vlug v Poulos.

10. I do not understand Rule 11.04(1) to mean that the Court must have found that the application that was dismissed by the Court just prior to the exercise of the power conferred pursuant to Rule 11.04 was itself frivolous, vexatious or an abuse of process. However, I do consider the satisfaction the Court is required to have that the party (against whom the order is sought) has frequently started a case or appeal that is frivolous, vexatious or an abuse of process, must be reached before the Court dismisses an application of that party and then proceeds to make the order.

11. I do not, at this point, see it as necessary to consider the point, raised by the discussion in Vlug v Poulos as to whether Rule 11.04 is in fact supported by an inherent power in the Court. That point was not argued before me and, in any event, I do not consider the prerequisite to the exercise of the power conferred by the Rule has been satisfied.

12. The fact is, I did not turn my mind to the question of whether I was satisfied that the father has frequently started a case or appeal that is frivolous, vexatious or an abuse of process before I dismissed his contravention application. Nor could I have done so, where the father required time to consider and respond to the application and had not been heard at that time. As I was not so satisfied before I dismissed the father’s contravention application (not having turned my mind to it), I did not accept that I could go on to subsequently consider that matter and decide whether to make an order as provided for in Rule 11.04(1)(b) after I had already previously dismissed his contravention application.

13. Accordingly, I did not consider that I was in a position on Tuesday 26 February to make the order sought by the mother and, as a consequence, I dismissed her application. I did not dismiss her application because of a finding that there was no merit to the argument that the father has frequently started applications that are frivolous, vexatious or an abuse of process. On the contrary, the number of unsuccessful applications that the father has brought in this Court and others over the last few years, but particularly since my final orders were made on 15 June 2011, is not small. It is to be remembered that I said in my reasons for judgment that I was satisfied that the father has expectations of being in control of the mother and their two children and that his expectations extend as far as a belief that the mother must simply bend to his will in respect of matters pertaining to their two children. I went on in those reasons to find that the father had subjected the mother to a seemingly relentless campaign of intimidation, harassment and condemnation designed to undermine her self-confidence and her parenting capacities under the guise of his allegedly acting in the best interests of the children.

14. I can imagine that it would not take much to satisfy the Court in future, if yet another application is brought by the father that is unsuccessful, that the father is acting vexatiously towards the mother and abusing the process of the Court.

15. Having said that, I turn then to the Form 4 Notice that the father filed in the contravention proceedings. It did not get to be considered by me at the time as the contravention application was dismissed because the father’s evidence did not disclose a prima facie case to answer.

16. The father alleged in the Form 4 that the mother has abused the children and committed family violence against him, his children and their children. The particulars he gives of the alleged abuse and the alleged family violence, whilst not identical, raise effectively the same allegations – namely, that the mother made up sexual abuse allegations against him and his son to damage the relationship he has with their children and to stop the children spending time with him and abusively involved the children in the process, coaching them to repeat and believe the false accusations.

17. The father does not allege in the Form 4 that there would be a risk of abuse of the children or a risk of family violence by the mother in the future.

18. He relied on the evidence constituted by the documents in exhibit 2 as support for his allegations of abuse and family violence. He said that evidence supports findings that the mother fabricated the allegations and deliberately coached the children to repeat the allegations knowing them to be false.

19. Having carefully considered the documents the father tendered into evidence, particularly the documents that the father took me to one by one during the hearing on Tuesday, I have to say that I was simply not able to find that the mother fabricated the allegations or that she deliberately coached the children to repeat the allegations knowing them to be false.

20. As counsel for the mother pointed out, an allegation, such as the one now made by the father, that a party has falsely and with malicious intent fabricated allegations of sexual abuse and callously and abusively involved children in the falsehood to their emotional detriment, is a very serious allegation indeed. Section 140 of the Evidence Act makes it clear that the applicable standard of proof is on the balance of probabilities. Sub-section (2) of the section says the Court is to consider, without limitation as to other matters, the nature of the cause of action, and the nature of the subject-matter of the proceedings and the gravity of the matters alleged. In the context of considering allegations of sexual abuse of children, the Full Court has said that the evidence must be “very carefully evaluated” and “inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse” when applying the balance of probabilities standard. See K v R (1997) 22 FamLR 592 at 599, 602-603, cited in Re W (Sex Abuse: Standard of Proof) [2004] Fam CA 768 at [15].

21. I accept the submission that the exact same care is required in respect of allegations of falsely accusing a parent of sexual abuse.

22. In this case, in respect of these matters there has not been a trial in which the authors of the documents contained in exhibit 2 have been cross-examined about the matters of fact they refer to and the opinions they express. The mother has not given any evidence about the matters the father complains of and, in particular, has not been cross-examined. Nor has the father.

23. Whilst there is some evidence that some person or persons  involved in the investigation of the child concern notifications might have held the opinion at some point in the process of the investigation that the children were “coached” by the mother in respect of the content of disclosures they made about their father and their elder half brother, that such an expression of opinion has been recorded falls a long way short of proof that the mother has falsely made up the allegations and involved the children in an abusive process. There has been no testing of that opinion evidence by cross-examination of the holder of the opinion and no subjecting of it to any real forensic analysis. It would be grossly inappropriate, in my view, to give it much weight in this matter in these circumstances.

24. Critically, after an exhaustive investigative process carried out over approximately one month in late 2011 that also involved consideration of the nature and content of the allegations made by the mother, Departmental staff wrote to the father saying that the assessment of the notified concerns (relating to alleged sexual abuse) was recorded as unsubstantiated with the children being assessed as not in need of protection through departmental intervention. They did not advise the father of any concerns that may have been held about the mother’s role in the matter. Departmental staff did not otherwise act.

25. Again, in August 2012, after an equally exhaustive investigative process carried out over approximately 5 months, a Departmental Team Leader wrote to the father telling him that the outcome of the investigation of alleged sexual abuse of the children was a recording of unsubstantiated with the children not being in need of protection. Importantly, the letter set out the rationale for the assessment to include:

    ·    It is more likely than not that the disclosures made by the children are the result of the current parental conflict and family law court proceedings.  There is no evidence to support any harm to the children at this time; however

    ·    While a finding of “substantiated” is unable to be determined at this time, there is always the risk that sexual harm has occurred which is unable to be particularised, or observed through behaviour change at this time, and future disclosures of harm need to be considered in light of information obtained during this assessment.

    ·    [The mother] is assessed as a parent who is both willing and able to care for [the child H] and [the child M’s] needs and protect them from harm at this time.  She has taken appropriate action to have the disclosures of harm investigated, and has initiated counselling for the children to give them the opportunity to speak about any concerns they may be experiencing.

    ·    [The father] is currently assessed as a parent who is willing to protect the children from harm.  It is acknowledged, however, that [the father’s] ability to protect the children is limited to those times when they are in his care due to the current Family Law Court.

    ·    [The father] has shown that he is willing to work with Child Safety and Police to clear any matters which have arisen as a result of allegations made against him and his son.

    ·    [The father] has committed to attend Bravehearts for counselling in relation to protective behaviours.  Furthermore, [the father] and his family have committed to arrangements whereby the children are fully supervised by other adults/family members within the home whilst they are staying there.

1. I reject as completely unfounded the father’s submission that the mother has been found by the investigation to have abused the children.  I certainly do not find that she has and I do not find that she has committed any acts of family violence against the children, the father or any of his other children.

2. Having considered the father’s Form 4 and the evidence the father put before the Court to consider along with it, particularly all of the documents from the Departmental investigations; being satisfied that I could not find that the mother made up false allegations of sexual abuse against the father; accepting the father’s assurance that but for a couple of minor matters the children have spent time with him in accordance with my primary orders of mid 2011 ever since the Departmental investigation concluded in August last year; and having regard to the fact that there is no longer any parenting application or application for orders pursuant to Part VII of the Family Law Act before the Court, I reached the determination that I did not consider any more needed to be done about the matters raised in the Form 4 to protect the children or any of the parties to the proceedings.

3. I considered, in all the circumstances that presented, that the appropriate orders to be made included a clear expression of the fact that I could not find that the mother had made up false allegations of sexual abuse and an order that any future applications filed by either parent be listed in the first instance for hearing before me. I consider this appropriate as I am so well acquainted with the facts and circumstances of this case that it would save Court time and resources as well as the parties’ time and resources for any future matter to be heard by me.

4. It is to be hoped that having read the Departmental concerns about the exposure of these two little children to their ongoing adult conflict, the parents might think very carefully before they commenced any further proceedings in the future.  

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 28 February 2013.

Associate: 

Date:  28 February 2013