Mohsein and Mohsein

[2011] FamCA 352

FAMILY COURT OF AUSTRALIA

MOHSEIN & MOHSEIN [2011] FamCA 352

FAMILY LAW – CHILDREN – family violence – Airport Watch List

Family Law Act 1975 (Cth)

APPLICANT: Ms Mohsein

RESPONDENT: Mr Mohsein

FILE NUMBER: MLC 6024 of 2011

DATE DELIVERED: 7 July 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 7 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Langham

SOLICITOR FOR THE APPLICANT: Women’s Legal Service

Orders

1. That the applicant is exempt pursuant to s 60I of the Family Law Act 1975 (Cth) from attending upon the family resolution practitioner for the purposes of these proceedings.

2. That the applicant have leave to proceed without notice to the respondent in respect of the application this day.

3. That the application filed 7 July 2011 be adjourned to 10.00am on 12 July 2011.

4. That the Notice of Risk of Child Abuse and Family Violence filed by the applicant on 7 July 2011 be served by the Registry Manager of the Family Court of Australia at Melbourne upon the Department of Human Services (Victoria) and its equivalent counterpart in Western Australia as soon as practicable.

5. For the purposes of the Family Law Rules 2004, a copy of this order, the application filed 7 July 2011 and the affidavit in support thereof be served by fax upon the Secretary of the Department of Human Services (Cth) (and the legal practitioner for the applicant may advise the proper officer of the said Department of such documents that the order has been made and will be provided as soon as practicable).

6. That until further order each party Ms Mohsein born … 1982 and Mr Mohsein born … 1954 their servants and/or agents be and are each hereby restrained from removing or attempting to remove or causing or permitting the removal or attempted removal of the said child B born … January 2001 (female) from the Commonwealth of Australia and IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the said child’s name on the Watch List until the Court orders its removal.

7. That the reasons this day be transcribed and made available to the parties.

IT IS NOTED that publication of this judgment under the pseudonym Mohsein & Mohsein is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 6024 of 2011

Ms Mohsein

Applicant

And

Mr Mohsein

Respondent

REASONS FOR JUDGMENT

1. This is an application filed on the afternoon of 7 July seeking a variety of orders.  The only major one that I am currently dealing with concerns injunctions precluding B (the child), born … January 2001, from leaving the Commonwealth of Australia.  Consequent upon that order being made, the Australian Federal Police will be asked to record on their system the details concerning the child so that she cannot leave Australia by any international departure point.  The application also seeks information concerning the whereabouts of the child, who is currently living with the respondent in Western Australia.  The evidence suggests that the respondent may be a flight risk.

2. The circumstances that give rise to this matter being before the Court are extraordinary and quite concerning, particularly as it is the Court’s responsibility under section 60B and section 60CC to be concerned about the protection from harm of children.  I’m not making any findings of fact today, and I’m very cognisant of the fact that these are allegations of the most serious kind made against the respondent, who has not had an opportunity to be heard.  I’m satisfied that because of the difficulties in serving the respondent, his whereabouts being unknown, it is appropriate to allow the application to proceed without further notice.

3. As I’ve indicated, the allegations are very serious, but importantly, the police have had details provided to them by the applicant, and it would appear that some form of investigation is underway.  Quite appropriately, the applicant has filed a notice of child abuse or family violence, and the filing of that document activates a notification procedure under the relevant state law that would bring the matter to the attention of the Department of Human Services in Victoria.  The child is not in Victoria, presumably, if the respondent is living in Western Australia.  For that purpose, I intend to direct that the relevant notice be provided by the registry manager to both the Victorian Department of Human Services and its counterpart in Western Australia. 

4. The matter is otherwise to be adjourned to next Tuesday to enable the application to be served on the relevant department responsible for Centrelink.  Whilst the relevant departmental representative has been cooperative in assisting with details, I have no doubt that because of the privacy considerations they cannot give any details as to the whereabouts of the respondent without the appropriate Commonwealth location order. 

5. The Act is quite explicit about the service of that application.  It requires the document to be served before the Commonwealth location order can be made, and service is required under the Rules.  The Rules are provided for the purposes of ensuring that cases are expeditiously and properly dealt with, and for that reason, having regard to the advice I have received from counsel for the applicant that the department is cooperating, I propose to make an order that a copy of the order together with the relevant application and supporting affidavit be sent by fax to the secretary of the department responsible for Centrelink.

6. I will otherwise make orders having regard to the concerns I have about the welfare of this 10 year old child so that she is not removed from the Commonwealth of Australia pending not only further orders of this Court but potentially by investigations of the department.  It is important too that the respondent may need to be interviewed by the police having regard to the allegations made against him.  I shall direct that these reasons be transcribed and be placed on the court file and otherwise adjourn the matter to next Tuesday.

7. As is otherwise known, the parties cannot bring proceedings normally in this Court without an exemption certificate under section 60I of the Act. This is one of those cases where it would be bizarre for the parties to have to go to a family relationship centre before being able to issue, having regard to the nature of the problem, and accordingly, I exempt the applicant from obtaining that relevant certificate.

ORDERS DELIVERED

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 7 July 2011.

Associate: 

Date:  2 August 2011