MOHSEN & COLLINGS - [2017] FamCA 29

FAMILY COURT OF AUSTRALIA

MOHSEN & COLLINGS

[2017] FamCA 29

FAMILY LAW – CHILDREN – Where the mother has made allegations of domestic violence against the father and continues to be fearful of the father – Where the mother does not want the father to spend any time with the child – Where the father has denied all allegations and sought orders that the child spend time with him –Where the father has not seen the child for over two years – Where findings have been made in respect of some allegations of domestic violence – Where the mother’s parenting capacity and relationship with the child would be affected if the child was to spend supervised time with the father – Orders made for the child to live with the mother and spend no time with the father.

FAMILY LAW – EVIDENCE – Where the maker of a statement has died – Consideration of the exception to the hearsay rule where the maker is not available – Where the statement has high probative value – The statement is admitted into evidence.

Evidence Act 1995 (Cth) ss 63, 135
Family Law Act 1975 (Cth) s 60CC(2)(b)

Ainsworth v Burden [2005] NSWCA 174

APPLICANT:

Mr Mohsen

RESPONDENT:

Ms Collings

INDEPENDENT CHILDREN’S LAWYER:

Independent Children's Lawyer

FILE NUMBER:

PAC

3006

2013

DATE DELIVERED:

25 January 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Rees J

HEARING DATE:

9, 10, 11, 12 and 13 January 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lo Schiavo

SOLICITOR FOR THE APPLICANT:

Avant Legal

COUNSEL FOR THE RESPONDENT:

Ms Mahony

SOLICITOR FOR THE RESPONDENT:

David H Cohen & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Bankstown Family Law

Orders

IT IS ORDERED

That the mother have sole parental responsibility for the child B born … 2011.
That the child live with the mother.
That the father have no contact with the child.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MOHSEN & COLLINGS

Details

AGLC: MOHSEN & COLLINGS [2017] FamCA 29
Case: [2017] FamCA 29
Decision Date: 25 January 2017

CaseChat Overview and Summary

In the matter of Mohsen & Collings, Rees J of the Family Court of Australia considered allegations of domestic violence made by the mother against the father. The mother expressed fear of the father and did not wish for him to spend any time with the child. The father denied the allegations and sought orders for the child to spend time with him, having not seen the child for over two years. Findings were made in respect of some of the domestic violence allegations.

The court was required to determine the best interests of the child, specifically whether the child should spend time with the father, and if so, under what conditions. A further issue concerned the admissibility of a statement made by a deceased individual, Mr L, which contained allegations of domestic violence. The court had to consider whether this statement fell within an exception to the hearsay rule due to the unavailability of the maker and its probative value, and whether its admission would be unfairly prejudicial to the father.

Rees J admitted Mr L's statement into evidence, finding that its probative value was not substantially outweighed by the danger of unfair prejudice, misleading or confusing the court, or causing undue waste of time, as required by section 135 of the Evidence Act 1995 (Cth). The court reasoned that the statement provided significant insight into the mother's experiences and her fear of the father, which was central to the parenting dispute. Having considered the evidence, including the findings of domestic violence and the mother's expressed fear, the court concluded that it was not in the child's best interests to spend time with the father.

Consequently, the court made orders that the mother have sole parental responsibility for the child, that the child live with the mother, and that the father have no contact with the child. These orders were accompanied by a Fact Sheet detailing the obligations, consequences of contravention, and assistance available to the parties.

Orders

Orders of the court

IT IS ORDERED

That the mother have sole parental responsibility for the child B born … 2011.

That the child live with the mother.

That the father have no contact with the child.

That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The provisions of s 135 are set out below:EVIDENCE ACT 1995 - SECT 135General discretion to exclude evidenceThe court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time. It was not submitted that the statement had no probative value and such a submission could not have been available in relation to Mr L’s observations of the mother’s physical appearance and the conversation between them. Nor was it submitted that the evidence was misleading or confusing or would lead to undue waste of time. Primarily, the submission on behalf of the father was that the evidence was prejudicial to him and that the prejudice outweighed the probative value of the evidence. In order to understand the argument, it is necessary to have regard to the contents of the statement. The relevant parts are reproduced below:5. After a few months of their marriage, [the mother] began showing up to our home with different bruises and markings on her body. I said “Who did this?”She said, “[The father] did it.”I said, “You’ve got to do something about it, let me call the police. Let me organise something for this.”She said, “No I can’t.”6. If I offered to call the police it would send her into a state of crying and hysterics. [The mother] told me that if [the father] caught word that she had told someone about the marks on her body, he would beat her up and lock her in the house for as long as it took for the bruises and marks to fade … …8. In early January 2011 [the mother] told me that she was pregnant with their son, [the child]. Between early January 2011 and October 2011 I had a conversation with [the mother] over the phone. [The mother] informed me that [the father] had threatened to kill her by throwing her down the marble staircase and make it look like an accident.9. Since [the mother] became pregnant she would show up at our home with her belly covered all over in blotchy bruises. There was not one occasion where she would turn up without bruises. Each time, I would observe bad bruising to her arms, particularly the upper arm/shoulder area and her face. Her eye or eyes would often have fading bruises or one would be slightly closed and swollen. [The mother] told me that [the father] would only let her leave to visit our home once the bruises and swelling were not so fresh and prominent.10. Between early January 2011 and October 2011 [the mother] visited our home and showed me more bruising on her belly. … She showed me bad bruising up and down her arms. I noticed bruises around her neck that looked distinctly like they were caused by fingers. It looked like the marks were as a result of someone putting their hands around her neck. She showed me a large horizontal scratch on her lower back.I said, “What happened?”She said, “[The father] did this. The baby hasn’t moved in two days. I’m afraid I’m going to lose it.”11. [The mother] told me that these injuries were from when [the father] had beaten her up, knocked her to the ground and beat her repeatedly in her pregnant belly.…19. Between October 2011 and December 2012 [my wife] and I visited [the mother] and [the father’s] home … Each time I saw [the mother], whether it be in her home or ours, she would have the same bruising and swelling to her face and arms. She would do her best to avoid talking about them. We visited their home about 10 to 12 times in total.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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