Mohammed Salah & Gastana
[2022] FedCFamC1F 669
Federal Circuit and Family Court of Australia
(DIVISION 1)
Mohammed Salah & Gastana [2022] FedCFamC1F 669
File number(s): BRC 404 of 2022 Judgment of: BAUMANN J Date of judgment: 15 July 2022 Catchwords: FAMILY LAW – PARENTING – Where a Senior Judicial Registrar listed the proceedings for directions towards a Rice & Asplund hearing – Where it is abundantly clear on mother’s own evidence that the father’s application should proceed – Orders made to progress the proceedings Legislation: Family Law Act 1975 (Cth)s 102Q(e) Cases cited: Rice & Asplund (1979) FLC 90-725 Division: Division 1 First Instance Number of paragraphs: 8 Date of hearing: 15 July 2022 Place: Brisbane Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Ms D Pratt, Legal Aid Queensland Independent Children’s Lawyer: Ms C Stewart, 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:
15 JULY 2022
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That paragraphs 1, 2, and 3 of the interim orders sought by the Respondent mother (at “Annexure A”) in her amended Response to an Application filed 17 June 2022, are dismissed.
2.That the parties be granted leave to inspect and the Independent Children’s Lawyer be granted leave to inspect and photocopy the documents produced pursuant to s 69ZW of the Family Law Act1975 (as amended) from the Queensland Police Service.
3.That the parents shall engage, attend, and facilitate the attendance of the children, M born in 2008 and H born in 2009 (“the children”) at the family report interviews arranged by the Independent Children’s Lawyer, including the personal or virtual attendance of any family members the Independent Children’s Lawyer and/or the family report writer requires.
4.That seven (7) days before the next Court event before the Honourable Justice Baumann, subject to any liberty to re-list being activated, the parties shall file and serve a precise minute of the orders they seek.
5.That the Independent Children’s Lawyer have liberty to apply to have the matter re-listed.
6.That these proceedings be adjourned for Case Management Hearing on a date to be advised in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane, after such time as the Court is advised by the Independent Children’s Lawyer of the dates the parties are scheduled to attend family report interviews.
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:
The matter comes before me as a result of an Order made by a Senior Judicial Registrar on 3 June 2022, where the parties, not unreasonably, in view of Order 1, expected today to be a directions hearing before me. I was not aware that was what the parties’ expectations may have been.
However, to the credit of the solicitor advocate for the mother, who was seeking, in effect, either that the father’s Application, which was filed by him on 17 January 2022, be dismissed under the principles of Rice & Asplund (1979) FLC 90-725 or be regarded as an application to be dismissed as it being frivolous and vexatious – the matter proceeded. Some submissions had been prepared by Counsel retained by the mother through Legal Aid before the Senior Judicial Registrar, and I have read them, seeking the father’s Application be dismissed. It did not persuade me that my very strong preliminary view, having read all the material, is that the Rice & Asplund issue is overcome, and as I have indicated and rely upon this transcript today, this does not require me to make an assessment of the father’s evidence, much of which is shaped by no data but a concern. It arises almost entirely from the mother’s own evidence, for which I give her credit in being so candid.
I have identified with Ms Pratt – who now has instructions not to press those applications (sensibly, in my view)– that the mother’s most recent affidavit, and she has reserved the right to file further material, and no doubt she may do so in the future, but from her own material, the events which made it clear to me that a material and substantial change of circumstances has occurred since the final orders, which are the basis for the current arrangements and were made by Justice Forrest 11 years ago on 15 June 2011, include:
(a)the age of the children;
(b)the fact that the mother acknowledges having had some recent challenges to her mental health which have manifested in at least one hospitalisation for a period of 17 days from 25 September 2021;
(c)the child, H, not spending time with the father for what seems to be a school term;
(d)the types of support within the mother’s household required to deal with her nocturnal epilepsy, which includes a live alarm;
(e)the acknowledgement by the mother that the impacts of her post-traumatic stress disorder has meant an inability to drive, which is having an effect on her parenting and has meant, for example, that the children cannot, from her household, attend extra-curricular activities;
(f)the acknowledgement by the mother that she is, I think, candidly and properly prepared if required to attend an independent Psychiatrist;
(g)the fact that rather than engaging the father, who has been having, since 2011, regular continuing time with the children, she chose to engage one of her older children, K, who is 25 years of age, to look after the children when she is unable to do so, seemingly without any consultation with the father and in circumstances where, and again not surprisingly, the mother candidly records that she, at times, is in conflict with her daughter and her daughter with her;
(h)that H has experienced, as described at paragraph 49 of the mother’s affidavit, “a rough year with 2021”, that included an allegation of bullying, which without foundation, the mother would say, led to complaints being made against her in the way that Z Gastana and the mother went to the child’s school to confront the bullying allegations, the bullying apparently having now subsided; and
(i)the ongoing psychological assistance H has had from Psychologist Mr DD.
In reciting these material changes, which in my view are substantial, all from the mother’s material, I do not need to go to some of the other allegations the father asserts, which includes things like suggesting that K’s fiancé Mr CC is, in some way, inappropriately touching the children, and what he says are the children’s expressed concerns to him. Having made that obvious, in my view, observation – and I guess I should say that these are views that, as I say, come from the affidavit of the mother filed on 14 February 2022, and yet seemingly did not persuade Counsel retained who prepared these submissions to see it in such a simple way as I have – I do not think I have missed something.
So it is in the best interests of the children for the father’s Application to proceed further and for investigation to be undertaken. I have made it clear to the father today that even though his Application now includes an application that the children live with him, to change a settled environment, where the children have been living primarily with the mother for nearly 11 years, would be a very significant change of circumstance for the children and one that would need to be carefully assessed on all the available evidence. I have, at this stage, very little recent data, and particularly what I do not have is anything independent which captures the wishes and views of the children who have been the subject of their parents’ conflict in one form or another for nearly all their life. I am sure the Independent Children’s Lawyer has an option in that regard.
Before I now move into some case management considerations, it is of course logical that if, as there is in this case, further applications to be considered by the Court that overcomes the obstacles of the line of authority beginning with Rice & Asplund, such an application could not on any test be described as frivolous and vexatious. The fact that the mother might say that the prospects of a court ordering, when all the evidence is considered, the children live with the father, is, to use a summary dismissal context quote, “doomed to fail” or with small prospects, is not the same as removing from a parent the right to have the Court review orders made 11 years ago in this matter. So I am absolutely satisfied that it does not come anywhere near, in the history of this matter and the evidence from the mother’s own affidavit, a descriptor of the proceedings being frivolous and vexatious.
Similarly, there is no basis, at this stage, with the current proceeding to be further investigated and dealt with, that would provide a basis for an order under section 102Q(e) of the Family Law Act 1975 (Cth). My intention is to dismiss those applications at this stage, and to proceed further directions in this matter. Really, the most important issue is to have some accurate data available of an independent nature about the mother’s mental health status, and that may include, of course, something from her own treating professionals. I am not rushing to get an independent Psychiatrist. This mother is having a lot of treatment. She has people who she is getting advice from. I do not need to get a forensic Psychiatrist doing a cross-sectional assessment over an hour. We may, but I am not interested in requiring Legal Aid to fund that. The mother needs to give full details to the Independent Children’s Lawyer, if she has not already done so, of the people who she has been consulting, so that proper material or reports can be procured from them. This is not a lady who is saying “I do not have problems”, this is a lady who I think is saying, “I have had some problems but I am dealing with them. I am managing them,” and that may well be the case. It would be different if she said nothing had occurred requiring her hospitalisation for 17 days. She is not saying that, so I am not going to support Legal Aid getting an independent Psychiatrist. That would just be a waste of public money and at this stage.
I make the Orders which are at the commencement of these Reasons.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 2 September 2022
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