Mohsein and Mohsein (No 2)

[2011] FamCA 680

FAMILY COURT OF AUSTRALIA

MOHSEIN & MOHSEIN (NO 2) [2011] FamCA 680

FAMILY LAW – CHILDREN – records of Centrelink/the Department of Human Services (Cth).

Family Law Act 1975 (Cth)

APPLICANT: Ms Mohsein

RESPONDENT: Mr Mohsein

FILE NUMBER: MLC 6024 of 2011

DATE DELIVERED: 12 July 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 12 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Langham

SOLICITOR FOR THE APPLICANT: Women’s Legal Service

Orders

1. That the Court is satisfied that the records of Centrelink/the Department of Human Services (Cth) are likely to contain information in relation to the said child B (Female) born … January 2001 or in relation to the persons who have possession of the said child Mr Mohsein born … 1954.

IT IS FURTHER ORDERED:

1. That pursuant to Section [67M(2)][67N(2)] of the Family Law Act 1975 the Chief Executive Officer of Centrelink/ Secretary of the Department of Human Services (Cth) furnish forthwith to the Registrar of this Registry of the Court such information as is contained in the records of the said Agency/Department in relation to the address at which the said child/ren and/or the husband may be found.

2. That any information received by the Registrar in compliance with paragraph (2) hereof not be released without an order of the Court first had and obtained.

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 the second return date of the application filed on 7 July 2011. Primarily, the application today revolves around a recovery order and also an information order. Last Thursday, I ordered that inquiries be made of the Department of Human Services of the Commonwealth, which is responsible for Centrelink, about whether they were prepared to abridge the times to accept short service of the necessary application under the Family Law Act.

2. I have today received a letter into evidence from the privacy and information access section of the Ombudsman’s branch of the Centrelink department agreeing to the abridgment of time indicating they would require the period of up to 14 days to be able to provide the necessary information, and I am satisfied on the basis of the affidavit that the applicant, who is the mother of the child in these proceedings, does not know of the whereabouts of the possible father of the child, and under those circumstances, having regard to the very serious allegations that have been made, it is appropriate for the information to be provided by Centrelink.

3. I am satisfied that Centrelink is more likely than not to be in possession of the information about the putative father on the basis of the fact that it is the applicant’s evidence that he was a Centrelink beneficiary at least up until the time that she left his home.  It is appropriate in the circumstances for that information to be made available as soon as practicable to the registry manager, Ms C, who upon receipt of that information should immediately be in a position to advise the applicant’s solicitor so that the necessary proceedings for the rest of the application can be organised.

4. There are potential criminal proceedings involved in this case, and as an abundance of caution, an application has been made that I exercise the power under section 121 of the Act to allow the solicitor for the applicant to provide to the relevant Victorian and West Australian police and the relevant departmental officers an opportunity to give them material about the proceedings.  I think this is one of those cases where because of the serious nature of the allegations and the trauma that the applicant is said to have suffered, that the information should be so provided without any concerns about the protections that normally apply to section 121 of the Act. 

5. That then leaves the question of the recovery order.  The dilemma in this case is that the child of the proceedings is a 10 year old girl who is the child of the mother, or the applicant, and the mother’s evidence is that the putative father is her father.  It is not entirely clear at this stage, and no doubt that will be the subject of some further investigation.  The evidence of the applicant is that she was seriously sexually and physically assaulted throughout her childhood years by the respondent and that the child who is the subject of these proceedings is now at that vulnerable age that she was at when the assaults began.  It is the applicant’s assertion that the child is at risk.  The Victorian Police have expressed interest in the respondent but have not been able to do anything because of the fact that it is asserted that the respondent is in Western Australia.

6. Today, as a result of the notice of risk of family violence and child abuse being filed by the applicant, which was ultimately served upon the Department of Human Services, the department has advised the Court that they have handed the report to the Department of Child Protection in Western Australia and nominated a particular officer at the D Town office.  That worker will be responsible, according to the letter, to manage the case.  It is a little perplexing to know what to do in this case, because it would seem that the department is waiting for the Court to provide some information so that they can commence their investigation.  If that assumption is right, then I must conclude that the department has not had any notification made to it which would activate their concerns in Western Australia.

7. As I discussed with counsel for the applicant this morning, there is the issue of the fact that the applicant left the child in the respondent’s care in September last year and has not had any contact other than that attempt by telephone since.  I have expressed the concern that issuing a recovery order may traumatise the child, who may, for example, consider that her mother has abandoned her, but on the other hand, the execution of a recovery order by police may also cause the same problem. 

8. One way or the other, this issue needs to be brought to a head, and the assertion by the applicant is that if the respondent is put on notice, then it is likely that he will take flight.  He cannot take flight out of Australia, because last Thursday, I made an injunction precluding him from leaving the Commonwealth, but Australia is a big country, and having regard to the serious nature of the allegations, which, as I said, are the subject of interest to the police, it might be thought that whilst that risk might not necessarily be high, it is a matter that I ought not ignore.

9. Ultimately, the power to make a recovery order comes from section 67U of the Family Law Act. The legislation provides that the recovery order can be made so long as the Court thinks it is proper, but at the same time, section 67V requires that a Court shall regard the best interests of the child as paramount in making that recovery order. To determine what is in the best interests of a child, the Act in Part VII turns to section 60CC. Section 60CC is in two parts. There are what are described as primary considerations and what are described as additional considerations. Of the primary considerations, the Act looks at the benefit of the child having a meaningful relationship with both parents and at the same time urging the Court to protect the child from physical and psychological harm, from being subjected to or exposed to abuse, neglect or family violence. Abuse is defined in the Act as including matters such as an assault and sexual abuse. Those two primary considerations do not sit comfortably together.

10. Clearly in this case, the mother is not in a position to tell me what has happened in the last 10 months of this child’s life, but as I said, the Department of Child Protection in Western Australia does not seem to have immediately galvanised its resources and said that there is a family here known to it.  I cannot ignore the assertions of the mother.  I stress that these are allegations at this stage.  They are untested, but they are serious, and when I look at the primary considerations, whilst the Act does not distinguish importance between the two, it must, in my view, follow that the Court has an obligation to protect a child from physical or psychological harm in being subjected to abuse.

11. The allegations of the mother are extremely serious and of the most vile behaviour.  Her assertion is that they started when she was a child of the age of this child.  If there is any risk that that could happen here, bearing in mind not only the abdication of responsibility as a parent but the criminal behaviour, if true, this child must be at some risk.  On that basis, it seems to me that the protection must outweigh the benefit of having a meaningful relationship, at least on an interim basis.  There are a number of additional considerations, as I pointed out, in section 60CC, but none of them are relevant in this case until such time as a proper investigation of the evidence can be undertaken.

12. I do not have to consider such issues as parental responsibility in this case, notwithstanding the applicant sought that order, because as an interim matter, the Court does not need to apply the presumption in circumstances where there is insufficient evidence on an interim basis to make any determination about such matters as family violence and abuse.  In those circumstances, it seems to me that on the balance of probabilities, the appropriate order that is in the best interests of this child is a recovery order, notwithstanding the potential problems it may create.

13. I have expressed the view this morning that notwithstanding the serious nature of the allegations, all persons in this country have a right to natural justice.  Natural justice is an entitlement to be heard and for the procedures to apply to everyone.  The tyranny of distance in this case creates a dilemma, but it seems to me the sensible solution is for me to give the respondent an opportunity to be heard by video link with the assistance, if he so chooses, of this Family Court of Western Australia. 

14. Because of the time difference between the two states, it would be inappropriate for me to require the case here to be heard at 10 o’clock in the morning, and for that reason, I propose to list it before Young J at 2.15 on 11 August, and in the event that the respondent is in a position to be heard, it will be by video link, if he so desires, but it will have to be on the basis that he files a response to the necessary material filed by the applicant.  That will also require the applicant, as soon as practicable, to serve upon the respondent all of the material that she has filed.  Under those circumstances, I think these are proper orders as defined by the Act.

ORDERS DELIVERED

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 12 July 2011.

Associate: 

Date:  2 August 2011