Mohsen & Collings

[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 (“the father”) for a review of a decision made by the Senior Registrar on 1 September 2020 in which the Senior Registrar made Orders dismissing an Application by the father filed 25 May 2020 for orders that would enable the father to ascertain the location of the child, B born in 2011 (“the child”), as well as the child’s mother, Ms Collings (“the mother”), for the purpose of serving a substantive Application for parenting orders upon her. In his substantive Application, being an Initiating Application filed 2 October 2019, the father seeks orders for the variation of final parenting orders made on 25 January 2017. Those orders were made after a five (5) day hearing in which the parties had the opportunity to present evidence in support of their respective cases. Each party was extensively cross-examined and the Court was in receipt of expert evidence. The outcome of those proceedings was, by way of summary, a finding by the primary judge, Rees J, that the mother had been subject to family violence during the course of her relationship with the father and, as a consequence, the mother’s emotional and psychological well-being would be adversely affected by orders providing for the child to spend time with the father such that it would adversely impact upon her parenting capacity. As a consequence, the primary judge ordered that the mother have sole parental responsibility in respect to the child and that the child spend no time with the father.

2. In support of his review Application, the father presented evidence with a view to establishing that he has been the victim of a miscarriage of justice both in respect to the reasons for judgment delivered by the primary judge on 25 January 2017 ([2017] FamCA 29), and consequent orders made on that day, as well as the appeal against the primary judge’s decision which was heard by the Full Court of the Family Court of Australia and determined on 18 September 2017 ([2017] FamCAFC 198). In doing so, the father referred to evidence that was clearly available to him prior to the substantive hearing of this matter in January 2017. The father contends however, that a factor resulting in him being the victim of a miscarriage of justice was incompetence on the part of his legal representatives at the substantive hearing, including what he contends to be their failure in providing all relevant evidence to the Court.

3. 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

4. In 1971, the father was born. He is currently aged 49 years.

5. In 1976, the mother was born. She is currently aged 44 years.

6. In 1997, the father’s child from a previous relationship, Mr E, was born. He is currently aged 23 years.

7. 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.

8. The parenting proceedings were heard in this Court over a period of five (5) days commencing 9 January 2017 and judgment was delivered on 25 January 2017. The father later filed a Notice of Appeal which was heard by the Full Court and dismissed on 18 September 2017.

9. As noted, in the primary judge’s reasons for judgment, her Honour found that the mother had been the subject of family violence perpetrated by the father. The nature of that violence was summarised in the decision of the Full Court (per Ryan J) dismissing the father’s appeal. That summary was as follows:

   20. …As Justice Thackray has indicated, her Honour’s findings concerning the nature and extent of the appellant’s violent mistreatment of the respondent are largely unchallenged. However, I think it is useful to give some detail of the findings which her Honour made. At [155] of the trial reasons, her Honour said:

   … However, I accept that the [father] was verbally and physically abusive to [the mother]. In particular I accept that:

   •He physically assaulted her on 5 September 2011, 8 March 2012, 14 July 2012 and 23 February 2013;

   •When the [mother] was pregnant with the child the [father] assaulted her causing bruising to her arms and belly;

   •He assaulted her by kicking her and pulling her hair;

   •He threatened to take the child from her;

   •The [mother] remains afraid of the [father];

   •The [mother’s] fear of the [father] is caused by her experience of the family violence perpetrated by him.

   21.To further provide context to her Honour’s findings and the nature and extent of the appellant’s violence, it is useful to record [97] of her Honour’s reasons which states:

   On 23 March 2012, Dr J examined the [mother] after she told him that she had been assaulted two weeks before on 8 March 2012. Dr J noted that the examination revealed bilateral periorbital hematoma, that the bruising in her left eye was more severe than that in her right eye, and her lips were swollen. Dr J noted a vertical laceration on the [mother’s] left cheek, with bruising of her upper lip, a long curved laceration on the left dorsal surface and swollen lips. Dr J noted, “has written a complete description of what he has done”. I infer from Dr J’s note that the [mother] had told Dr J that the [father] was responsible for the injuries. Dr J, in the District Court, said that the injuries he observed were consistent with the [father’s] complaint of an assault two weeks before.

10. In her reasons for judgment, the primary judge noted and accepted the evidence of Dr J which was summarised as follows:

    144.On 26 June 2013 Dr J noted in relation to the mother:

    Has been under tremendous strain due to emotional and physical abuse by her partner. This has been carrying on for some time now hence the reason for referral to a psychologist. Has also been assaulted by the partner’s son while pregnant.

    145.On 26 June 2013, Dr J completed a mental health care plan for the mother. Again the diagnosis was “mixed anxiety and depression” and Dr J noted a past history of physical and emotional abuse by her husband for the past three years. Dr J stated in the mental health care plan that the mother suffered major depression and acute anxiety.

11. In explaining her reasons as to why the parenting orders should provide that the child spend no time with the father, the primary judge stated as follows:

    188.     Dr C, in her report, expressed her opinion that:

    …a finding by the Court of marked domestic violence perpetrated by [the father] will be necessary to protect [the child] and his mother from future harm…

    Should such a finding me made, [the father] will have lost his right to parent [the child]…

    189.That is not, however, the law and the decision which is required here is to be based on a balancing of the competing primary considerations.

    190.Although it was not the father’s case that if he were to have any contact with the child that contact should take place in a supervised contact centre, that was the tenor of the cross-examination of Dr C and of the submissions made on behalf of the father.

    191.On behalf of the father, it was submitted that if orders were made for the father to spend time with the child in a supervised contact centre there would be no need for the mother to be involved and any fears she might have would be alleviated by professional supervision.

    192.     I do not accept that submission.

    193.Dr C agreed in cross-examination that the best outcome for the child would be for him to have supervised time with his father so that, when he is old enough to make his own decisions about his relationship with his father, he will have some foundation on which to build that relationship.

    194.However, Dr C was clear that it is necessary to consider the effect on the mother of such an arrangement and, in particular to consider the effect on the child if the mother’s parenting is destabilised.

    195.Dr C was very concerned about the mother’s ability to cope if any order were made that involved the father and the child spending time together. Her concerns were based on her own observations of the mother and her reading of the transcript of the mother’s cross-examination in the District Court where Dr C observed the mother to decompensate and become highly disorganised. She also had regard to Dr J’s note in August 2016 to the effect that the mother continues to be in fear for her life and the child’s life. Dr C predicted that the mother was likely to decompensate if the father was re-introduced to the child’s life.

    196.Dr C said that her concerns about the mother’s ability to cope would be exacerbated if she behaved in these proceedings in a manner similar to her behaviour in the District Court proceedings.

    197.     Dr C was not present in Court during the mother’s cross-examination.

    198.When, before me, the mother was asked to contemplate the possibility that the child might spend time with his father in a contact centre, the mother became hysterical, and uncontrollable. Whilst it is difficult to compare the mother’s observed reaction in Court, before me, to her behaviour during cross-examination as revealed by the District Court transcript, the transcript did not reveal the mother’s reaction there to be as extreme as it was in these proceedings. It is reasonable to conclude that her extreme reaction was triggered by her being asked to consider the child spending time with his father. I accept that her reaction was genuine.

    199.It is likely that, if any order were made which had the effect of re-introducing the father into the child’s life, the mother’s parenting would be adversely affected.

    200.I accept the evidence of Dr C that, if the mother is unable to give the child secure and consistent parenting, their relationship will be impaired and the child will become anxious and lose his trust in her.

    201.There are no available safeguards which would allay the mother’s fears for her and the child’s safety.

    202.The child has no relationship with his father. His relationship with his mother is essential to his continued wellbeing and must be protected.

    203.It is not possible for the child to have a meaningful relationship with both of his parents.

    204.In coming to that decision, in addition to the matters already set out above, I have considered the following matters.

    205.     There is no evidence of the child’s views.

    206.I accept Dr C’s evidence that the child has a secure attachment to his mother and that he has no relationship with his father. There is no evidence that the child has any relationship with any member of the father’s extended family.

    207.I accept that the father has made every effort to spend time with the child and participate in his life since the parents separated.

    208.There is no evidence that the father has made any contribution to the child’s financial support since separation.

    209.The likely detrimental effect of a change in parenting arrangements for the child as proposed by the father has already been explored.

    210.The practical difficulty of effecting the arrangements proposed by the father is clear. There is no evidence that any agency is able to provide long term on-going supervision. There is no evidence that supervision would allay the mother’s fears and ameliorate the likely detriment to her ability to parent the child.

    211.I accept the evidence of Dr C that the father’s ability to parent the child, and to provide for his psychological needs, is cast in doubt by his violent behaviour towards the mother.

    212.I accept that the father loves the child and wants to have the child in his life but it is his attitude towards the responsibilities of parenthood that causes concern. One of the most significant responsibilities of parenting is the need to respect the child’s other parent and to treat that parent with dignity. The father has not done so.

1. In concluding the reasons for judgment in which the Full Court (per Thackray J with approval of Ainslie-Wallace J) dismissed the appeal against the decision of the primary judge, Thackray J stated that the primary judge’s decision was “a judgment of quality. It was a compelling and well-expressed judgment. Her Honour’s reasons are clear and I find no error at all”.

   APPLICATIONS

2. By Application in a Case filed 8 November 2020, the father seeks the following orders:

   1. That pursuant to rule 1.14 of the Family Law Rules 2004 (Cth), the time for filling this application be extended.

   2. That the orders made by Register Campbell on 1 September 2020 be reviewed by a Judge.

   3. I seek a location order to serve documents to Ms Collings to attend court.

   4. I seek orders to transfer my case to Parramatta courts and be heard by a Judge.

3. 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

4. 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.

5. 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

6. 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.

7. 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.

8. The review of a Registrar’s determination is an original hearing in the sense that error does not need to be established: see Feiteiro & Feiteiro [2019] FamCA 647 referring to Henley & Henley [2019] FamCA 101 at [7].

9. Accordingly, my task is not one of ascertaining whether, in the making of the Order, there was an error on the part of the Senior Registrar. My task is to conduct a rehearing of the matter that was before the Senior Registrar.

10. As noted, the substance of this Application is in respect of orders enabling the father to locate the mother for the purpose of serving his Initiating Application upon her. Specifically, while not particularised in the father’s Application in a Case filed 8 November 2020, in paragraph 2 of his Affidavit filed 25 May 2020, the father states that he is seeking a location order or a Commonwealth information order. In that respect, s 67K(1) of the Family Law Act 1975 (Cth) (“the Act”) sets out those persons who may apply for a location order requiring the recipient of the order to provide the Registry Manager of the Court with information that the person has or obtains about a child’s location: see s 67J(1) of the Act. Those persons who may apply for such an order include a person “concerned with the care, welfare or development of the child”. For the purpose of these proceedings, I accept that the father is such a person.

11. Section 67L of the Act provides that, “in deciding whether to make a location order in relation to a child, a court must regard the best interests of the child as the paramount consideration”.

12. Section 60CC of the Act provides guidelines to assist the Court in determining what is in the child’s best interests. The primary considerations are contained in sub-s (2) and are subject to sub-s (2A):

    (2)      The primary considerations are:

    (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

    (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

    Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

    (2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

13. A number of additional considerations are set out in s 60CC(3) of the Act.

    CONSIDERATION

14. 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.

15. 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”.

16. 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.

17. 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.

18. The father contends that, had he been competently represented in the proceedings before the primary judge, the Court would have come to that conclusion and rejected the mother’s allegations that the father has perpetrated acts of family violence against her.

19. In considering whether to exercise my discretion to accede to the father’s Application in a Case filed 8 November 2020, s 60CC(3)(m) of the Act requires the Court to have regard to “any other fact or circumstance that the court thinks is relevant”. A relevant consideration in this matter is an assessment as to the father’s prospects of successfully prosecuting his Initiating Application filed 2 October 2019 as against the adverse impact those proceedings would have on the mother. That is not to say that, in so doing, I am summarily determining the father’s Application but, rather, I am undertaking the task of assessing, on the evidence presented in these proceedings, whether the father has a reasonable prospect of succeeding in his Initiating Application to vary the current parenting orders that apply to the child such that it would warrant granting a location order to enable the father to serve his Application upon the mother.

20. In assessing the prospects of the father successfully prosecuting his Application, as I have noted, the concept of res judicata or issue estoppel do not apply in parenting cases: see Elmi & Munro (2019) FLC 93-912 (“Elmi”) at 79,147 [27]. In Elmi, the Full Court helpfully summarised relevant authorities as follows:

    28.In Newling, Nygh J, with the concurrence of Barblett and Fogarty JJ, said at 76,467:

    Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting children, it is, in my view, not appropriate to speak of cause of action estoppel. What this rule really illustrates is that it is, generally speaking, not in the interests of the child to have repeated applications concerning its custody and access before the Court. There must, in other words, be an end to litigation.

    29.This was made clear in Miller & Harrington, where the Full Court (Warnick, Boland & Murphy JJ) said:

    100.  The language of “issue estoppel” or, “res judicata” is not appropriate because the judicial determination of what is in a child’s best interests, although bringing the then proceedings to an end, does not dispose “once and for all” of that issue.

    (Citations omitted)

    30.The trial judge commenced his discussion of the principles of res judicata and his survey of authority by quoting the well-known definition set out in George Spencer Bower and Kenneth R Handley, Spencer Bower and Handley: Res Judicata (LexisNexis Butterworths, 4^th edition, 2009) at page 1. His Honour did not refer to paragraph 15.19 of the same text where the authors opine that:

    Issue estoppels are not binding in proceedings for the care or custody of children because the court’s overriding duty is to have regard to the welfare of the child, and there is no estoppel in a changing situation.

21. However, while s 65D of the Act gives the Court the express power to discharge, vary, suspend or revive some or all of an earlier parenting order, authorities of this Court explain why the Court discourages repeated applications revisiting parenting orders that have been made in respect to children. The principle is commonly referred to as “the principle in Rice and Asplund”, which is a reference to the decision of the Full Court in Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”). In Poisat & Poisat (2014) FLC 93-597 and Elmi at [89]-[91], the Full Court referred to a useful summary of the principle as set out in the explanatory memorandum to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), which described the “principle in Rice and Asplund” as limiting:

    89.… the court’s capacity to rehear matters in two kinds of cases: those where there is a change in the circumstances of the parties where some new factor has arisen which would justify a serious step; and those where there is some factor which was not disclosed at a previous hearing that would have been material.

    90.It is not generally in the best interests of the child to have repeated applications concerning them before the courts…

    91.The note following sub-item 47(2) directs the reader to the principle in Rice and Asplund. This note is to assist readers, particularly self-represented litigants, to understand how sub‑items 47(2) links to the common law.

    (Family Law Amendment (Family Violence and Other Measures) Bill 2011 (Cth), Explanatory Memorandum. See, also, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth), Supplementary Explanatory Memorandum, at [10]-[13]).

22. In prosecuting that Application, the father will inevitably be required to address that principle.

23. In this matter, the father contends that a changed circumstance that justifies his Application to vary the current parenting Orders is that the child is now nine (9) years old and has commenced primary school. Reference was made to the Report (marked ‘Exhibit E’ in the proceedings) and evidence of the single expert, Dr C, in the proceedings before the primary judge, which the father contended was to the effect that it would be beneficial to the child to have a relationship with the father when the child starts attending school.

24. A reading of the decision of the primary judge, however, makes it clear that her Honour carefully considered the totality of evidence of Dr C and, nonetheless, concluded that, in the circumstances of the case, including, most relevantly, her findings that the father had perpetrated a number of acts of serious family violence upon the mother, the case was one which justified the making of an order whereby the child would spend no time with the father. Relevant to that finding was her Honour’s finding that a spend time order would so adversely affect the mother’s emotional and psychological well-being that it would adversely impact upon her parenting capacity and, ultimately, upon the child.

25. Accordingly, the father will have difficulty in satisfying the Court that there have been sufficiently changed circumstances, as a result of the child commencing primary school, that justify the father commencing an Application to discharge and/or vary the current parenting Orders such that they provide for the child to spend supervised time with him.

26. As noted, the father further contends that a relevant consideration in justifying his commencement of proceedings seeking a variation of the current parenting arrangements is that, due to the incompetence of his legal advisers in the proceedings before the primary judge, information was not disclosed to her Honour which, the father contends, would have satisfied her Honour that the mother was a liar and that she had fabricated allegations against him.

27. Once again, it is clear that her Honour, an experienced trial judge, carefully evaluated the mother’s evidence and accepted that “the mother may have exaggerated incidents through retelling and revisiting the events, as Dr C explained”. However, having regard to the totality of evidence, including objective confirmation of injury sustained by the mother as well as contemporaneous reports of injury, in respect to the mother’s allegations that the father had perpetrated acts of violence upon her, the primary judge accepted that:

    •He physically assaulted her on 5 September 2011, 8 March 2012, 14 July 2012 and 23 February 2013;

    •When the mother was pregnant with the child the father assaulted her causing bruising to her arms and belly;

    •He assaulted her by kicking her and pulling her hair;

    •He threatened to take the child from her;

    •The mother remains afraid of the father;

    •The mother’s fear of the father is caused by her experience of family violence perpetrated by him.

28. In those circumstances, the father will have difficulty in persuading the Court that, what he contends is the mother’s lack of credibility and propensity to tell lies is such that it justifies the orders made by the primary judge on 25 January 2017 being set aside or varied.

29. As against what I have determined to be difficulty that the father will have in successfully prosecuting his claim is the likely impact that further litigation will have on the mother and, by adversely impacting upon her parenting capacity, vicariously upon the child. In that respect, during the course of hearing the father’s Application, I expressed concern regarding the intensity of the manner in which he made his submission that the child’s mother is a liar and she has fabricated allegations against him. His assertions to that effect are contrary to the weight of evidence that was considered by the primary judge in her decision which analysis and conclusion was supported by the Full Court.

30. It is significant that, at [159] of her Honour’s reasons for judgment, the primary judge noted:

    159. In relation to the father, Dr C stated:

    However, if [the father] is found by the Court to be the batterer alleged by the child’s and E’s mothers, then he cannot have a parenting role with the child until he takes responsibility for his behaviour and undertakes psychological work to understand and change this behaviour.

31. During the concluding stages of the hearing, I suggested to the father that his continual denial that he has perpetrated acts of violence upon the mother, and his assertion that the mother is a liar for having stated as such, could be construed as an indication of a lack of remorse on his part and demonstrate an inability to accept moral responsibility for the impact that his conduct has had upon the mother. The father then accepted that not all of his past conduct was appropriate and he may have fallen short of being a good partner in some respects. This concession, however, does not indicate that the father has taken responsibility for his conduct in accordance with the requirement clearly set out in the evidence of Dr C. Specifically, the father’s continuing assertions that the mother is a liar and the intensity with which he makes those imputations gives rise to a concern that the father has not acknowledged the impact of his past conduct and that he has not taken steps to address his past conduct. 

32. I further expressed concern that text messages (marked Exhibits C and D in the proceedings) before me included text messages between the father and the mother, sent during the course of their relationship, which were of a highly personal and intimate nature that, in my view, did not justify disclosure for the purpose of the father establishing that the nature of his relationship with the mother was loving and affectionate and not violent as she contends. Once again, that issue is addressed at [57] of the decision of Rees J where her honour noted that Dr C explained in her oral evidence to the Court that, “neither the absence of complaint nor the fact that the mother moved in with the father despite her allegations of abuse can be accepted as evidence that the abuse did not occur”.

1. 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

2. 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.

3. 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.

4. 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.

5. Accordingly, for all of those reasons, I make the orders set out at the commencement of these Reasons for Judgment.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.

Associate:

Dated:       16 December 2020