Mohsen & Collings

Case [2020] FamCA 1072

FAMILY COURT OF AUSTRALIA

Mohsen & Collings [2020] FamCA 1072

File number(s):

PAC 3006 of 2013

Judgment of:

MCCLELLAND DCJ

Date of judgment:

16 December 2020

Catchwords:

FAMILY LAW – CHILDREN – Ex parte Application – Location order – Review of a Registrar’s decision to dismiss the father’s Application for a location order for the purpose of serving documents on the mother – Where the proceedings were finalised in 2017 and parenting Orders were made for the child to have no contact with the father – Where the father seeks to recommence proceedings – Whether a location order would be in the best interests of the child – Consideration of the father’s prospects of successfully prosecuting his claim as against the likely impact on the mother’s psychological and emotional wellbeing and, by consequence, her parenting capacity – Application dismissed.  

Legislation:

 Family Law Act 1975 (Cth) ss 60CC, 67J(1), 67K(1), 67L

Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)

Family Law Rules 2004 (Cth) rr 18.08, 18.10

Cases cited:

Elmi & Munro (2019) FLC 93-912

Feiteiro & Feiteiro [2019] FamCA 647

Henley & Henley [2019] FamCA 101

Mohsen & Collings [2017] FamCA 29

Mohsen & Collings [2017] FamCAFC 198

Poisat & Poisat (2014) FLC 93-597

Rice and Asplund (1979) FLC 90-725

Zawadzki & Zawadzki (No 2) [2020] FamCAFC 131

Number of paragraphs:

48

Date of hearing:

14 December 2020

Place:

Sydney by web conference

Counsel for the Applicant:

The Applicant in person

Counsel for the Respondent:

No appearance by or on behalf of the Respondent

ORDERS

PAC 3006 of 2013
BETWEEN:

MR MOHSEN

Applicant
AND:

MS COLLINGS

Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

16 DECEMBER 2020

THE COURT ORDERS THAT:

1.The Application in a Case filed 8 November 2020, for a review of the Senior Registrar’s decision and Orders of 1 September 2020, be dismissed.

2.The  Initiating Application filed 2 October 2019 by Mr Mohsen (“the father”) is listed for hearing on 24 February 2021 at 10am in respect to whether the proceedings should be dismissed pursuant to s 45A of the Family Law Act 1975 (Cth).

3.The father may file any additional Affidavits upon which he intends to rely by 10 February 2021.

4.The requirement of service of documents, in relation to these proceedings, upon the Respondent, Ms Collings, is dispensed with.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mohsen & Collings has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

McClelland DCJ:

INTRODUCTION

  1. This decision concerns an Application made by Mr Mohsen…

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AGLC
Mohsen & Collings [2020] FamCA 1072
Case
[2020] FamCA 1072
Decision Date

CaseChat Overview and Summary

In *Mohsen & Collings*, the father, Mr Mohsen, sought a review of a Senior Registrar's decision to dismiss his application for a location order. The purpose of the location order was to enable the father to serve documents on the mother, Ms Collings, in relation to his attempt to recommence family law proceedings concerning their child. The original parenting orders, made in 2017, stipulated that the child have no contact with the father.

The court was required to determine whether granting a location order would be in the best interests of the child. This involved considering the father's prospects of successfully prosecuting his claim to vary the existing parenting orders against the likely impact on the mother's psychological and emotional wellbeing, and consequently, her capacity to parent. The court also considered the father's past conduct, including allegations of violence and his attempts to publicise the matter on social media, as well as the mother's history of trauma.

McClelland DCJ reasoned that the father had not established a reasonably arguable case for varying the existing parenting arrangements. Furthermore, the court found an unacceptable risk that the father would present evidence and conduct his case in a manner that would re-traumatise the mother, particularly given her history of experiencing physical violence from the father and the inclusion of intimate communications in his evidence. Such re-traumatisation would not be in the best interests of the child. The court noted that issue estoppel does not apply in parenting proceedings, but earlier findings can be adopted pursuant to s 69ZX(3)(b) of the *Family Law Act 1975* (Cth).

Consequently, the father's application for a review of the Senior Registrar's decision and for a location order was dismissed. The court also gave notice of its intention to consider dismissing the father's initiating application pursuant to s 45A of the *Family Law Act 1975* (Cth) for having no reasonable prospects of success, listing this matter for a future hearing to ensure procedural fairness. The requirement for service of documents on the mother was dispensed with.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The Application in a Case filed 8 November 2020, for a review of the Senior Registrar’s decision and Orders of 1 September 2020, be dismissed.

2. The Initiating Application filed 2 October 2019 by Mr Mohsen (“the father”) is listed for hearing on 24 February 2021 at 10am in respect to whether the proceedings should be dismissed pursuant to s 45A of the Family Law Act 1975 (Cth).

3. The father may file any additional Affidavits upon which he intends to rely by 10 February 2021.

4. The requirement of service of documents, in relation to these proceedings, upon the Respondent, Ms Collings, is dispensed with.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mohsen & Collings has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975

Background

Background to the litigation

For reasons which I set out in greater detail below, I am not satisfied that it is in the best interests of the child for orders to be made providing the father with the means of locating the whereabouts of the mother and, by extension, the child. RELEVANT BACKGROUND In 1971, the father was born. He is currently aged 49 years. In 1976, the mother was born. She is currently aged 44 years. In 1997, the father’s child from a previous relationship, Mr E, was born. He is currently aged 23 years. A concise summary of the history of the parties’ relationship was set out in the decision of the primary judge as follows:5.The father and the mother met in 2002. They maintained separate residences although they spent an increasing amount of time together.6.The child E came to live with his father in March 2005 when he was seven years old.7.When the father and the mother commenced living together in 2009, E was a part of their household.8.It is an agreed fact that the relationship between E and the mother, initially good, deteriorated by the time E reached his teenage years to such an extent that there was physical violence between them. The mother and the father each have a different version of those events. The father alleges that the mother instigated acts of violence against E. The mother alleges that E was the perpetrator of violence against her.9.The mother left the relationship with the child B on 10 November 2012 and went to a refuge. She later returned to live with the father. The circumstances in which she returned will be examined later in these reasons.10.On 24 April 2013, the father travelled to America for two months. The mother remained in the home with the child and E.11.The mother and father finally separated on 16 July 2013 when the mother, with the assistance of the police, left the home and went to a refuge. She has remained in supported accommodation since that time and the child has not seen his father.12.Immediately after the parents separated, there were proceedings in the Federal Circuit Court in relation to the father’s attempts to enlist public opinion in his quest to see the child, which included posts on social media, the involvement of a fathers’ group, a rally and placing numerous posters with the child’s picture in public places. In the latter endeavour, the father was assisted by the members of the fathers’ group and their sympathisers. Orders were made restraining the father from further publicising matters relating to the child and the mother alleged that the father ignored those Orders and continued to place posters of the child and to invite comment on social media and incite other people to write letters to the presiding judge expressing their disapproval of the Orders.13.The father in cross-examination said that he had not disobeyed the Order of the Federal Circuit Court and that it was the members of the fathers’ group who continued to put up the posters. However, he also conceded that he did not tell them of the Orders or ask them to stop. The father said, in cross-examination, that he was not the instigator of the Facebook post inviting followers to write to the presiding judge expressing their disapproval of his Orders, but he accepted that the details for contact, including the name of the judge and the father’s address, must have come from him. 14.Also after separation, the child was hospitalised. When the father found out that the child was in hospital, he went to the hospital to see the child. The police were called and the father was told that, because there was an Apprehended Domestic Violence Order (“ADVO”) in place for the protection of the mother, and she refused to leave the child’s side, he would not be permitted to see the child.15.On 23 September 2013 the father was convicted of assaulting the mother in an incident that occurred on 23 February 2013. He appealed against that conviction but the appeal was dismissed.16.The father was charged with seven criminal offences. In summary, the charges alleged that he:•Had sexual intercourse with the mother without her consent between 1 November 2009 and 22 December 2009 and, in circumstances of aggravation, recklessly inflicted actual bodily harm upon her;•Had sexual intercourse with the mother between 1 August 2010 and 31 January 2011 without her consent and, in circumstances of aggravation, recklessly inflicted actual bodily harm upon her;•Assaulted the mother on 5 September 2011 occasioning actual bodily harm;•Had sexual intercourse with the mother on 8 March 2012 without her consent and, in circumstances of aggravation, recklessly inflicted actual bodily harm upon her;•Assaulted the mother on 11 May 2012;•Assaulted the mother between 1 July 2012 and 31 July 2012 and inflicted actual bodily harm;•Assaulted the mother on or about 13 February 2013 occasioning actual bodily harm to her.17.The family law proceedings were listed for hearing in July 2015 but were adjourned until the completion of the criminal proceedings.18.That matter came to trial in the District Court before a jury in June 2016 and the father was acquitted.

Evidence

Evidence Before The Court

The father in his Application in a Case filed 25 May 2020, which was dismissed by the Senior Registrar, sought the following orders:1. That the Applicant be granted leave to proceed ex parte for the purpose of a location order.2. That pursuant to section 67M(2) of the Family Law Act, MS CC COLLINGS provide to the Registrar of the Family Court of Australia at SYDNEY information about the location of the child B, born on … 2011, or the mother MS COLLINGS born …1976 within 42 hours of the making of this order.3. That pursuant to section 67N(2) of the Family Law Act that the Chief Executive Officer of Centrelink provide forthwith to the Registrar of the Family Court of Australia at SYDNEY information about the location of the child B, born on … 2011, or the mother MS COLLINGS born … 1976 that is contained in or comes into the records of Centrelink.4. That pursuant to section 67P(l)(d) of the Family Law Act leave be granted to disclose the information provided to the Registrar of the Family Court of Australia at SYDNEY and that the Court arrange for a process server to effect service of the documents on the Respondent and the Applicant pay the costs associated with such service. EVIDENCE The father relied upon the following documents:(a)Application in a Case filed 8 November 2020;(b)Affidavit of the father filed 8 November 2020;(c)Application in a Case filed 25 May 2020; and(d)Affidavit of the father filed 2 July 2020. The following exhibits were relied upon:(a)Letter dated 26 March 2017 in respect of a complaint against Mr Y (‘Exhibit A’);(b)Photograph of a substance protruding from the mother’s nose (‘Exhibit B’);(c)Text messages between the father and the mother (‘Exhibit C’);(d)Whatsapp messages between the father and the mother (‘Exhibit D’);(e)Family Report of Dr C attached to a notice of the Court dated 21 November 2014 (‘Exhibit E’);(f)Highlighted parts of clinical notes from Z Hospital (‘Exhibit F’); and(g)Letter from BB Associates to the father dated 22 July 2013 (‘Exhibit G’).THE LAW – CONCEPTS AND PRINCIPLES Rule 18.08 of the Family Law Rules 2004 (Cth) (“the Rules”) enables a party to apply for a review of an order made by a Registrar. Rule 18.10 of the Rules sets out the power of the Court on review which is by way of an original hearing or, in other words, is to proceed by hearing de novo:Power of court on review(1)A court must hear an application for review of an order of a Judicial Registrar, Registrar or Deputy Registrar as an original hearing.Note:In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.(2) The court may receive as evidence:(a) any affidavit or exhibit tendered in the first hearing;(b) any further affidavit or exhibit;(c) the transcript (if any) of the first hearing; or(d)if a transcript is not available, an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.

Decision

Reasons for decision

That is, the inclusion of the intimate and personal communications between the father and the mother in the evidence that he has presented to the Court establishes, in my view, an unacceptable risk that similar material will be presented in the event of the father continuing to press his Application for a variation of current parenting Orders. There is, in my view, an unacceptable risk that evidence of that nature, in the context of proceedings where the father is alleging that the mother is a liar for alleging that he has physically assaulted her, will re-traumatise the mother in circumstances where the primary judge accepted that the mother had already been traumatised by the acts of physical violence perpetrated upon her by the father.CONCLUSION In summary and conclusion, the father has not, on the evidence he has presented, established a reasonably arguable case that he will succeed in obtaining orders varying the existing parenting arrangements for the child. At the same time, in attempting to do so there is an unacceptable risk that the father would present evidence and conduct his case in a manner that would re-traumatise the mother. This would not be in the best interests of the child. For these reasons, on the basis of evidence that he has presented in his case, the father has not satisfied me that it is appropriate or in the best interests of the child to make the orders which he seeks. I therefore dismiss the father’s Application for review of the Senior Registrar’s decision of 1 September 2020 and for the provision of a location order to locate the mother and child for the purpose of serving documents upon the mother. In circumstances where the father would otherwise be left in a litigation limbo, I give notice to the father that I am contemplated exercising power pursuant to s 45A(7) of the Act to issue a summary decree dismissing the father’s Application on the basis of it having no reasonable prospects of success. To ensure that the father is afforded procedural fairness, I have listed the father’s Initiating Application filed 2 October 2019 for hearing on 24 February 2021 at which time the Court will consider, as a separate and discreet issue, the issue as to whether the proceedings should be dismissed as having no reasonable prospects of success. I will provide the father with the opportunity of submitting such additional evidence and submissions as he requires to respond to the notice that I have given to him including to address the Rice and Asplund principle that I have referred to in this decision. Accordingly, for all of those reasons, I make the orders set out at the commencement of these Reasons for Judgment.

Ratio Decidendi

Legal Principle Established

A number of additional considerations are set out in s 60CC(3) of the Act.CONSIDERATION The evidence that the father presented did not address the totality of the s 60CC considerations. I have nonetheless had regard to the father’s evidence and, as I noted during the course of the proceedings, I intend to have regard to the decision of the primary judge in making the existing final parenting orders. In that respect, in Zawadzki & Zawadzki (No 2) [2020] FamCAFC 131, the Full Court said, at [27]:27.Issue estoppel has no role to play in parenting proceedings, as is explained in Elmi & Munro [2019] FamCAFC 138; (2019) FLC 93-912 at [27]–[36]. Nonetheless, that does not necessarily give free rein for every earlier finding to be revisited at any subsequent hearing. Section 69ZX(3)(b) of the Act permits the Court, to “ adopt any recommendation, finding, decision, or judgment of any court” in child related proceedings. This obviously permitted her Honour to rely on the findings in the 2014 reasons for judgment. In substance, the father’s Application focused on the benefit of the child having a relationship with himself, his current partner’s daughter, the child’s half-brother, E, as well as the child’s extended family. During the course of the hearing of the review Application, the father contended that he is a loving and caring father and that the success of his son, E, in attending university is a testament to his parenting capacity. In further support of his submission, the father attested to undertaking two (2) parenting courses “a couple of years ago”. An aspect of the evidence presented by the father included clinical notes from Z Hospital (marked ‘Exhibit F’ in the proceedings). That evidence was tendered with a view to supporting the father’s contention that the mother had lied about the nature of his relationship with the child. It is to be noted that, included within those records, is an assertion by the mother that she had, in fact, been the subject of violence perpetrated by the father’s son who, at that time, was in an early stage of adolescence. The mother’s allegations that she had been abused by the father’s eldest son are also referred to at [59], [78], [99], [144] and [149] of the decision of Rees J. There is, however, insufficient evidence in these interim proceedings to determine how the mother would be impacted by orders providing for the child to have contact with his half-brother, E. Save to the extent to which the father has presented evidence of a complaint made against the lawyer who appeared for him in the proceedings before the primary judge, the evidence presented by the father in support of his Application, in this matter, focuses upon evidence which he contends establishes that the mother is a “constant liar”, that she “fabricates” false allegations against him and that she has a “history of lying” including in respect to the nature of the father’s relationship with the child on the day of the child’s birth.