MOHSEN & COLLINGS
[2015] FamCA 583
•22 July 2015
FAMILY COURT OF AUSTRALIA
| MOHSEN & COLLINGS | [2015] FamCA 583 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments—Where father is subject to pending criminal proceedings for offences against the mother – Where there are current interim parenting orders—Where the mother has made an application for the hearing to be adjourned pending determination of the father’s criminal proceedings and the father opposes her application – Where the principles in Re K considered—where adjournment granted. |
| Family Law Act 1975 (Cth) ss 60CC, 69ZX, |
| H-D and D [2000] FamCA 1035 (Unreported 24 March 2000) McMahon v Gould (1982) 1 ACLR 98 Re Cameron’s Unit Services Pty Limited v. Kevin R Whelpton and Associates (Australia) Pty Limited [1984] FCA 406 Re K (1994) 17 Fam LR 537 |
| APPLICANT: | Mr Mohsen |
| RESPONDENT: | Ms Collings |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Bankstown |
| FILE NUMBER: | PAC | 3006 | of | 2013 |
| DATE DELIVERED: | 22 July 2015 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 20 July 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Roff |
| SOLICITOR FOR THE APPLICANT: | Linda Lonsdale Lawyer |
| COUNSEL FOR THE RESPONDENT: | Ms Cantrall |
| 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 |
Orders
The hearing dates of the trial listed to commence at 10:00am today be vacated.
The matter is listed for further judicial case management directions hearing on Monday 26 October 2015 at 9:30am noting that the Independent Children’s Lawyer has leave to relist the matter on short notice in appropriate circumstances.
The matter is adjourned to Wednesday 22 July 2015 at 9:30am for the delivery of written reasons for judgment as to the adjournment application.
All parties are excused from attendance in person at delivery of reserved judgment on 22 July 2015.
Leave is granted to the legal representatives of the parties only to inspect documents produced in the subpoena sleeves 17, 19, 20, 21, 22, 23, 24, 26, 28 subject to the following:
(a) Prior to any inspection of documents the Mother’s solicitor have the right of first inspection within 14 days from today’s date and have leave to redact such information in documents produced that will or may have tendency to reveal the present circumstances of the Mother and the child; and
(b) At the expiration of the period from 14 days from today’s date the Mother’s solicitor shall inform the Independent Children’s Lawyer and Father’s solicitor in writing that such redaction has been completed; and
(c) Thereafter and upon production to the Registry of a copy of the letter from the Mother’s solicitor the Independent Children’s Lawyer and Father’s solicitor shall have leave to inspect documents produced on subpoena in those sleeves.
No leave is granted for either party to have photocopy access save for the Independent Children’s Lawyer.
Documents may only be inspected by each of the parties’ legal representatives and in the event of either party ceasing to be represented the solicitor, on filing a Notice of Ceasing to Act, shall forthwith notify the Associate in Chambers of that circumstance.
The costs of all parties thrown away by reason of the adjournment are reserved.
IT IS NOTED THAT:
The undertaking of the Father’s solicitor not to disclose any information to the Father or members of the paternal family or his associates of any information that may have or has a tendency to disclose the circumstances of the Mother and the child.
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).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3006 of 2013
| Mr Mohsen |
Applicant
And
| Ms Collings |
Respondent
REASONS FOR JUDGMENT
The application for determination is the mother’s application for an adjournment of the parenting hearing in relation to the child B born in 2011.
The matter was before the court on 20 July 2015. An order was made vacating the trial dates. These are the reasons for that order.
The applicant father filed an application seeking parenting orders in relation to the child on 17 July 2013. In that application he sought orders that the child live with him and that he and the mother have equal shared parental responsibility.
The mother filed a response on 8 August 2013 and in that response she sought orders that the child live with her, that she have sole parental responsibility for the child and that the father have no contact with the child.
The proceedings were initially commenced in the Federal Circuit Court of Australia. On 3 October 2013 Judge Donald in that Court delivered reasons for judgment and made interim parenting orders in relation to the child that in summary provided as follows:
a)that the child live with the mother,
b)that the child spend no time with the father,
c)that the child’s name continue to be held on the airport watch list,
d)that proceedings be transferred to the Family Court of Australia.
On 12 November 2013 proceedings were listed before a Registrar of this Court and the parties were directed to attend interviews for the child responsive program on 6 February 2014.
On 1 April 2014 an order was made appointing Dr C, forensic psychiatrist as the single expert in the proceedings for the purposes of a report being prepared under Part 15 of the Family Law Rules 2004.
On 25 November 2014 the single expert report from Dr C was released to the parties. On 19 February 2015 trial directions were made to facilitate the matter being listed for a five day trial.
Present Context
Recent circumstances in relation to the father have precipitated the mother’s application for the trial dates to be vacated.
On 13 July 2015 the father attended at Suburb D Police Station where he was interviewed in relation to various allegations. The father was subsequently charged with three offences:
a)assault occasioning actual bodily harm on the mother on 5 September 2011,
b)aggravated sexual assault of the mother between 1 March 2012 and 23 March 2012,
c)assault occasioning actual bodily harm on the mother between 1 July 2012 and 31 July 2012.
The charge of aggravated sexual assault renders the father liable to a period of imprisonment of up to 20 years and the charges of assault occasioning actual bodily harm render the father liable to a period of imprisonment in respect of each charge of up to 7 years.
The background facts in relation to each of the charges were provided to the Court by way of a copy of the court attendance notice served on the father in relation to the charges (Exh A).
After the father was charged with the above offences he was refused bail and the Court was informed that he was to appear before the Central Local Court on 23 July 2015 and that a further application for bail was proposed to be made on that date and if unsuccessful a subsequent application for bail would be made to the Supreme Court of New South Wales.
In respect of each of the charges of assault occasioning actual bodily harm the allegations assert a significant and serious assault on the mother as a consequence of which she suffered injuries. The allegation as to aggravated sexual assault asserts sexual intercourse without consent at which time the father inflicted actual bodily harm on the mother.
The Court was not informed as to whether the father had entered a plea to the charges but it is to be reasonably inferred from submissions in relation to the present application that the charges will be defended by him.
It is also to be reasonably inferred that on a hearing of the charges, evidence will be given by the mother and other witnesses who observed the mother’s injuries or who heard the mother’s complaints as to the father’s behaviour. At present, having regard to the freshness of the charges, the father has not been presented with a prosecution brief.
As to be expected, the mother and child have had no contact with the father subsequent to interim orders made in the Federal Circuit Court and it is common ground that the residential circumstances of herself and the child are not known to the father and the paternal family and friends.
It is to be reasonably inferred that if the father is successful in obtaining bail then bail conditions will preclude him from contacting the mother and child.
The mother was interviewed by the single expert Dr C in late September and early October 2014. The single expert report concludes that if the father is found by this Court to be the batterer alleged by the mother then he cannot have a parenting role with the subject child until he takes responsibility for his behaviour and undertakes psychological work to understand and change this behaviour.
The single expert observes that:
[The mother] presented with significant anxiety, which was exacerbated during references to the alleged family violence perpetrated on her and [the child]. Her counsellor and caseworkers confirmed her fears and anxiety have been present long term. Her presentation was consistent with her reports of being fearful of [Mr Mohsen].
The single expert made observations of the child that:
Historically, following the parental separation, [the child] had been observed to be “traumatised…extremely out of control”, reacting aggressively towards his mother and other children, with these aggressive behaviours significantly reduced in 2014… Aged twenty-one months, in August 2013 he was briefly hospitalised “with behavioural problems”…consisting of temper tantrums, head banging and breath-holding.
[The child] was seen to become more distressed when his mother’s anxiety worsened. He has been observed by his mother’s support person to be unusually vigilant about visually tracking her movements, while his mother described him having long-term clingy behaviour towards her, with an ongoing need to check on her whereabouts in their home.
These descriptions of [the child’s] behaviour are consistent with a very anxious, even traumatised young child.
The single expert further reported:
[The mother] described patterns of behaviour in [the father] which characterise a “batterer”. She reported he was controlling: he dominated decision making, household responsibilities, sexual relations, finances, her outside social contacts (amongst other matters); he was entitled and disrespectful, feeling justified to use physical violence and intimidation when he considered it necessary; he had an expectation his needs were to be met and [the mother] centre her attention on him. She indicated he had been possessive, manipulative and sexually abusive.
In the opinion of the single expert
Given [the father’s] denial, 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 by [the father].
Should such a finding be made, [the father] will have lost his right to parent [the child]. There should be no contact between [the child] and his father, until [the child] is old enough to make this decision for himself. Contact for the purposes of identification is highly likely to be a significant stressor for [the mother’s] mental health.
The single expert continued:
If the Court does not find [the mother’s] allegations credible then [the child’s] time with his father should be supervised in a contact centre initially and occur at a frequency to enable [the child’s] familiarity with his father and brother, on a 3-4 weekly basis. This might allow [the mother] to manage her anxiety and therefore be appropriately available to parent [the child].
The mother’s concerns for her well-being at the hands of the father and the paternal family are such that she attends the Court under the protection of a safety plan.
Given that the present circumstances of the child are the subject of existing orders and that the father’s future circumstances are at best problematic the mother seeks to have the hearing of these parenting proceedings adjourned.
Observations of the mother in Court clearly demonstrated that she was anxious and nervous in the courtroom notwithstanding that she was aware that the father was in custody. Otherwise it was readily apparent that there were members of the father’s extended family in Court.
The mother’s application for the adjournment of the proceedings was supported by the Independent Children’s Lawyer.
The father opposed the adjournment and sought an order that he attend Court for hearing under the provisions of an order under s 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) that would require him to attend from custody in the company of Corrective Services Officers.
The question of an adjournment of proceedings in the face of pending criminal proceedings against one of the parties was by the Full Court considered in Re K (1994) 17 Fam LR 537.
The Full Court cited with approval the principles summarised by Wooten J in McMahon v Gould (1982) 1 ACLR 98. Relevantly they are:
a)prima facie a litigant is entitled to have his action tried in the ordinary course of the procedure and business of the court,
b)that is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds,
c)the court’s task is one of “the balancing of justice between the parties”, taking account of all relevant factors,
d)each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors,
e)one factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused’s “right of silence”,
Also see Re Cameron’s Unit Services Pty Limited v. Kevin R Whelpton and Associates (Australia) Pty Limited [1984] FCA 406
The Full Court in Re K (supra) said at [26]-[31]:
26. In applying those principles in this Court the following additional features of this Court's jurisdiction in relation to children need to be noted:-
(1) The Court has power to make interim orders.
(2) "Final" orders as to guardianship, custody and access are not final
in the ordinary sense in which that would be understood in civil
proceedings; they can in appropriate circumstances be reconsidered.
The subsequent resolution of criminal charges may justify such a
course.
(3) Proceedings relating to the welfare of children in this Court are
not strictly proceedings inter partes: see Re P (a child); Separate
Representative (1993) FLC 92-376, esp. at pp 79,896-7 where these
principles and the authorities were discussed.
(4) Critically, the welfare of the child is the paramount
consideration.
27. In such a situation a trial Judge in this Court would normally have a range of options, namely:-
(a) make no orders and adjourn the proceedings leaving the current de
facto or de jure situation to govern the matter;
(b) make interim orders and adjourn the matter until the conclusion of
the criminal proceedings; or
(c) make final orders.
28. Where there is a genuine contest between the parties or other matters relating to the welfare of the child (a) would generally be inappropriate.
29. The question whether the Court should make interim or final orders depends ultimately upon the circumstances of the individual case. However, that decision is to be made solely against the criterion of the welfare of the child. The circumstance alone that one of the parties has criminal charges pending would not justify an adjournment. In most cases the child's welfare would not be served by his or her custody remaining in abeyance over what might be a substantial period of time pending the outcome of proceedings in the criminal courts. Generally a child is benefitted by certainty and regularity in his or her life.
30. Any perceived disadvantage to the party is secondary to considerations of the welfare of the child. The outcome of the criminal proceedings may justify a subsequent application. In addition, there may be circumstances in individual cases which indicate that interim orders and an adjournment are consistent with the child's welfare. For example, the evidence may indicate that the criminal trial is about to take place and may only involve a short adjournment of the family law proceedings; or the evidence may indicate that the child's current circumstances are satisfactory and there will be no challenge to them or disruption of them pending the outcome of proceedings elsewhere.
31. So far as the "right of silence" and any wider question of potential prejudice in the party's subsequent criminal proceedings are concerned, we consider that the position was correctly stated by Young CJ, namely that it would be a rare case where that alone would justify an adjournment. Ultimately in this jurisdiction it is a question of the welfare of the child. The circumstances of the individual case may be such that there would be no significant prejudice to the child's welfare by a delay of the proceedings pending the outcome of the criminal charges: see A v Minister of Community Welfare and Crowe (1988) 12 Fam LR 117. However, where that is not the case, ordinarily it would be expected that this Court would proceed to determine the case and make such orders as it considered to be appropriate. The exercise by a party of his or her right of silence or privilege against self-incrimination in civil proceedings is a matter of decision by that party. Its exercise should not ordinarily determine whether the proceedings in this Court should continue. It would not usually be to the welfare of the child for disputed proceedings about guardianship, custody or access to be delayed for a significant period of time because that person chooses to exercise that right or privilege.
In Re K (supra) and the later decision of the Full Court in H-D and D [2000] FamCA 1035 (unreported 24 March 2000) there were other exigencies that were indicative of the trial proceeding notwithstanding pending criminal charges.
In this matter there are interim orders in place.
The father has no contact with the child pending further order. In the event that the mother’s allegations against him appear to be baseless then the recommendation of the single expert is for the implementation of initially supervised time for a period.
The child’s presentation is as depicted by the single expert and certainly is concerning in the way in which it seems to reflect the child being exposed to trauma during the parties’ cohabitation. Even if the trial was to proceed on the evidence presently available and the mother’s allegations were unfounded, then the child’s relationship with the father would require a determination as to the impact of that itself on the mother, her physical and mental well-being and her capacity to parent in circumstances where the child and she are brought back into contact with the father.
In the event that the father is convicted of one or other of the charges he presently faces there is a reasonable inference, having regard to the nature of the allegations, that he may well serve a period in custody. His conviction in itself would provide this Court with evidence supporting the mother’s allegations as to his conduct, at least on the occasions the subject of the criminal charges.
This Court would be able to have regard to the transcript of evidence should the father be convicted in relation to his sentencing in the criminal proceedings and be able to draw conclusions of fact from such transcript as it thinks proper or adopt any finding, decision or judgment in those proceedings: s 69ZX of the Family Law Act 1975 (Cth) (‘the Act’).
The well-being of the mother particularly in terms of her parenting capacity is a matter of significant concern. She has now very recently become aware of the criminal charges which now face the father based upon her complaints and that she will be required in due course to give evidence at a trial. It is to be expected that such a course will cause her significant concern and worry and may well impact upon her parenting capacity and her ability to be available to the child.
Such circumstances can only be compounded where the father, in his insistence on the parenting proceedings proceeding to hearing, would have the opportunity through his legal representative to cross-examine the mother at length in relation to the factual circumstances that are presently the subject of the outstanding criminal charges. It is to be reasonably inferred that such would be significantly distressing to the mother. Where the child is already alert to the mother’s emotional vulnerability as referred to in the single expert report any exacerbation of her emotional vulnerability can only adversely impact on the child who remains in her sole care.
It is submitted by counsel for the father that a trial in the District Court of New South Wales will be about nine months away. Should there be an unexpected event in relation to the father’s criminal proceedings the Independent Children’s Lawyer in these proceedings has leave to relist these proceedings on short notice. Should the father’s criminal proceedings be the subject of a successful “no bill” application or should the matters be resolved at an early date by reason of a guilty plea to the present charges or some lesser charge then these proceedings can be back before the Court quickly with a view to listing them for hearing expeditiously.
There is no significant delay in fixing trial dates in this Registry. If the matter comes back for the allocation of dates then trial dates within 3-4 months will be allocated on present indications.
Considerations as to the best interests of the child are set out in s 60 CC of the Act. Although this application is a procedural one, the child’s welfare is a significant consideration.
Having regard to the primary and additional considerations in the circumstances set out above it is in the best interests of the child and otherwise appropriate that the present proceedings be adjourned to await the outcome of the father’s criminal proceedings.
Such an order adopts the course identified as option “(a)” by the Full Court in Re K (supra) and does not prejudice the child’s welfare.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 22 July 2015.
Associate:
Date: 22 July 2015
2
1
2