Mohammed-Salah & Gastana

[2023] FedCFamC1F 67

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Mohammed-Salah & Gastana [2023] FedCFamC1F 67  

File number:	BRC 404 of 2022
Judgment of:	BAUMANN J
Date of judgment:	19 January 2023
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE –Application in a Proceeding by unrepresented litigant – Alleged perjury – Where Independent Children’s Lawyer made an administrative error – Application dismissed
Division:	Division 1 First Instance
Number of paragraphs:	6
Date of hearing:	19 January 2023
Place:	Brisbane
Solicitor for the Applicant:	Litigant in person
Solicitor for the Respondent:	Legal Aid Queensland
Counsel for the Independent Children's Lawyer:	Mr Plunkett
Solicitor for the Independent Children's Lawyer:	Queensland Legal Practice

ORDERS

BRC 404 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR MOHAMMED-SALAH Applicant
AND:	MS GASTANA Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	BAUMANN J
DATE OF ORDER:	19 January 2023

THE COURT ORDERS:

1.That the Application in a Proceeding filed 30 December 2022 be dismissed.

2.That the Independent Children’s Lawyer have leave to produce a copy of the family report to the Respondent mother’s treating psychiatrist Dr B and to the children’s counselling team, D Counselling.

3.That the Independent Children’s Lawyer and/or the Respondent mother use every endeavour to provide before the next date a report from Dr B and from the counsellors of the children as to the prognosis for the future in respect of their patient/s and in the mother’s situation, information about the mother’s compliance with the recommendations of her treating psychiatrist as to medication and visits.

4.That these proceedings be adjourned for Case Management Hearing at 9.30am on 6 April 2023 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.

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 the pseudonym Mohammed-Salah & Gastana has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)

BAUMANN J

1. In the midst of a highly emotional and difficult parenting case, Ms E, a solicitor of some experience and an Independent Children’s Lawyer in this case, had been the subject of an Application filed by the unrepresented father on 30 December 2022, which seeks the following relief:

   1.the honourable court make an order against [Ms E] appointed as ICL by this honourable court, for committing Perjury by making a false declaration on a Family Court form.

   2.I respectfully ask that this honourable court refer [Ms E] to The Bar Association of Queensland and Legal Services Commission.

   (As per the original)

2. In support of that Application, the father filed an affidavit, which I have read, that he affirmed on 13 December 2022 and was sealed on 30 December 2022.  Such an Application against an officer of the Court is a serious application which has very significant consequences.  It has been shown very clearly that Ms E understood the seriousness of the Application; took it seriously and in support of her position and understanding of the seriousness of the Application, filed an affidavit on 17 January 2023, answering on oath a number of the allegations raised by the father.  Furthermore, she has engaged experienced Counsel to represent her today, who on 18 January 2023 filed cogent, sensible and in my view, appropriate written submissions.

3. I think I can say, without seeking to embarrass in any way, Mr Plunkett, that his submissions are on point, appropriately identify the law to be applied and totally support, from his client’s perspective, her application that the father’s Application be dismissed.  However, being aware of the father’s position as an unrepresented litigant, the record will show that a number of questions were put to the father.

4. Firstly, although his Application did not seek this relief, I wanted to be clear whether he was suggesting that the Independent Children’s Lawyer be discharged, as that was not part of the application he filed.  On more than one occasion when asked of that, he said, “no.”  Secondly, the father informed the Court that he did not wish to cross-examine Ms E on her affidavit and in particular, in my view, paragraph 3 of Ms E’s affidavit where she says, inter alia:

   3.        It is admitted that I:

   (a)did mark the box in a Notice of Request to Inspect forms;

   (b)had omitted to serve a copy of the subpoenas on the applicant and the mother;

   (c)did so:

   (i)as an innocent administrative error;

   (ii)not intentionally or knowingly;

   (iii)in the honest and mistaken belief that a copy of the subpoena had been served on the applicant and the mother.

5. The apology of Ms E is offered unreservedly at paragraph 4 of her affidavit.  There are other matters referred to in the material but they could only amount to an application if properly brought for the discharge of the Independent Children’s Lawyer.  No such application has been made.  The father chose not to cross-examine Ms E.  I accept Ms E’s evidence in the circumstances.

6. The Application will be dismissed.

I certify that the preceding six (6) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann.

Associate:  

Dated:       28 February 2023