Sherif and Sherif (No. 2)

[2012] FamCA 763

FAMILY COURT OF AUSTRALIA

SHERIF & SHERIF (NO. 2) [2012] FamCA 763

FAMILY LAW – PRACTICE AND PROCEDURE – where the father’s application for consent orders was dismissed – where the mother alleged she did not sign the documents produced by the father in support of the application – where the application for consent orders proposed parenting arrangements in contradictory terms to orders made by the Court only months before – where the matter was referred to the Commonwealth Director of Public Prosecutions for investigation and prosecution of any offence

Family Law Act 1975 (Cth)
Crimes Act 1914 (Cth) s 36

Crimes Act 1900 (NSW) ss 253, 254, 317 and 327

APPLICANT: Mr Sherif

RESPONDENT: Ms Sherif

FILE NUMBER: BRC 11613 of 2010

DATE DELIVERED: 31 August 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 31 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: Everingham Lawyers

Orders

1. Orders 10(b) to 10(e) inclusive made on 5 April 2012 are suspended for a period of 21 days following the date of these Orders.

1. For the purpose of implementing Order 9 made on 5 April 2012, the wife is at liberty to sell the property by private treaty within 21 days of the date of these Orders.

It is further ordered that:

1. The Registrar shall forthwith send to the Commonwealth Director of Public Prosecutions copies of the following documents for the purpose of consideration as to whether either party should be charged with and prosecuted for any offence in connection with the making of a false declaration or representation to the Court in proceedings No. BRC 11613/2010:

a.Orders made on 5 April 2012;

b.The Court’s Reasons for Judgment delivered on 5 April 2012;

c.Application for Consent Orders filed by the father on 14 August 2012, including:

i.Annexure to Draft Consent Parenting Order signed by the father on 12 August 2012;

ii.Annexure to Draft Consent Parenting Order purporting to be signed by the mother on 10 August 2012;

iii.Consent Orders signed by the father on 12 August 2012 and purporting to be signed by the mother on 10 August 2012; and

d.The Court’s Reasons delivered on 31 August 2012 for dismissal of father’s Application for Consent Orders filed on 14 August 2012.

1. The Application for Consent Orders filed on 14 August 2012 is dismissed.

Notation:

A.Neither party requires the publication of reasons for Orders 1 and 2 hereof.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sherif & Sherif 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 NEWCASTLE

FILE NUMBER: BRC 11613 of 2010

Mr Sherif

Applicant

And

Ms Sherif

Respondent

EX-TEMPORE

REASONS FOR JUDGMENT

1. Before the Court for consideration is an Application for Consent Orders filed by the father on 14 August 2012.

2. The Application seeks that the Court make a series of parenting orders in relation to the children of the parties. The proposed orders provide for discharge of former parenting orders relating to the children, for the parties to have equal shared parental responsibility for the children, and for the children to live with the father as and from 15 September 2012.

3. That Application came as some surprise to the Court given that a hotly contested hearing between the parties over both property adjustment  applications and parenting applications was concluded only months ago on 5 April 2012.

4. Relevantly, on 5 April 2012 the Court made orders providing for the mother to have sole parental responsibility for the parties’ three children, for the children to live with the mother, and furthermore, to restrain the parties from causing or permitting the children to spend any time or to communicate with the father. In addition, an injunction was made restraining the father from entering upon or approaching within 100 metres of the mother’s residence and any school attended by the children.

5. As would be apparent from the recitation of those facts, the orders proposed in the document filed on 14 August 2012 by the father were diametrically opposed to the orders made only a few months ago by the Court.

6. Because of the significant variation between the current application and the orders made by the Court a short time ago, the father’s Application for Consent Orders was listed before me for consideration.

7. Today, the father conceded that he filed the documents comprising:

   i.The Application for Consent Orders filed on 14 August 2012;

   ii.Annexure to Draft Consent Parenting Order signed by him on 12 August 2012;

   iii.Annexure to Draft Consent Parenting Order, bearing another signature purporting to be that of the mother, dated 10 August 2012; and

   iv.The document entitled “Consent Orders”, signed by the father on 12 August 2012 and bearing another signature purporting to be that of the mother dated 10 August 2012.

8. The father confirmed to the Court that each and every one of the signatures on those four documents purporting to be his were in fact his genuine signatures.

9. The father also asserted to the Court that each and every one of the signatures on those documents purporting to be that of the mother were in fact the mother’s signatures. That fact, however, has been denied by the mother’s solicitor.

10. The Court is informed that the mother denies having seen or signed those documents and denies having had any communication with the father since the hearing was conducted by the Court some months ago, which concluded with orders being made on 5 April 2012.

11. It seems readily apparent that either the father is lying about the signatures on the documents being those of the mother, or alternatively, the mother is lying by now denying the affixation of her signature to those documents.

12. In either case, it seems apparent that one of the parties has likely committed a criminal offence. Such offence may have been committed pursuant to section 36 of the Crimes Act 1914 (Cth), or sections 253, 254, 317 or 327 of the Crimes Act 1900 (NSW).

13. For those reasons, an Order has been made requiring the Registrar of this Court to forward the documents to the Commonwealth Director of Public Prosecutions for the purposes of considering whether either party should be prosecuted for an offence.

14. In any event, it is now apparent that there is no consent to the parenting orders proposed in the documents filed with this Court by the father on 14 August 2012 and for that reason the Application filed on 14 August 2012 is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Austin delivered on 31 August 2012.

Associate: 

Date:  5 September 2012