MOHSEN & COLLINGS

[2019] FCCA 3821

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOHSEN & COLLINGS [2019] FCCA 3821

Catchwords:
FAMILY LAW – Children – parenting orders – best interest of the child – transfer to the Family Court of Australia – considerations under regulation 8.02 of the Federal Circuit Court Rules.

Legislation:

Family Law Act 1975 (Cth), s.69ZL
Federal Circuit Court Rules 2001 (Cth), r.8.02

Cases cited:

Rice & Asplund (1979) FLC 90-725

SPS and PLS (2008) FLC 93-363

Applicant: MR MOHSEN

Respondent: MS COLLINGS

File Number: PAC 3006 of 2013

Judgment of: Judge Harman

Hearing date: 2 December 2019

Date of Last Submission: 2 December 2019

Delivered at: Parramatta

Delivered on: 2 December 2019

REPRESENTATION

The Applicant appeared in person

No appearance by the Respondent:

ORDERS

1. I transfer these proceedings to the Family Court at Sydney.

2. I request that a Registrar of the Court arrange to address any procedural issues with respect to the matter as soon as practicable.

3. Note: Proceedings have previously been before the Family Court Sydney and were heard and determined by Justice Rees.

4. Note: The determination of the proceedings on an earlier occasion by Justice Rees was followed by an Appeal to the Full Court of the Family Court, which Appeal was dismissed.

5. Note: The issues raised in these proceedings are connected with the earlier tranche of proceedings in that the applicant seeks to assert that the respondent mother had manufactured evidence in the earlier proceedings which had led to a miscarriage of justice, which issues should be heard and determined by the trial Judge who had addressed the earlier proceedings.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3006 of 2013

MR MOHSEN

Applicant

And

MS COLLINGS

Respondent

REASONS FOR JUDGMENT

1. These proceedings relate to future care arrangements for a young child, [B], born … 2011.  [B] is presently eight years of age. 

2. The parties to the proceedings are [B]’s parents.  His Father, the applicant, his Mother, the respondent. 

3. These reasons are given in short form pursuant to section 69ZL Family Law Act 1975[1]. 

   [1] Family Law Act 1975 (Cth) s 69ZL.

4. The application that is before the court today seeks an extensive suite of parenting orders in relation to [B].  Orders are sought on both an interim and final basis.  In reality, it would appear that what is sought on an interim basis is identical to that which is sought on a final basis. 

5. The proceedings have been allocated the same proceedings number as earlier proceedings between these parties.  The file arising from that earlier tranche of litigation resides within a substantial box.

6. An affidavit has been filed by Mr Mohsen which would appear to comprise two reams of paper.  It has not been read or considered. 

7. The application in this tranche of litigation follows upon the making of final orders at a trial conducted before a Judge of the Family Court of Australia.  That trial resulted in orders being made by that Judge on 25 January 2017. 

8. The orders that were made on 25 January 2017, provide that [B]’s mother would have sole parental responsibility for him, [B] would live with his Mother and that [B] would have no contact with his Father. 

9. On its face, the application that is brought on this occasion must either seek to challenge the decision that was made on the first occasion, or, as is suggested by the Father, be based upon fresh evidence.  It would seem from the very limited submissions put this morning that this “fresh evidence” relates to suggestions that the Mother has lied, manufactured evidence and taken other steps to deceive the court so as to obtain the benefit of the orders previously made. 

10. This tranche of proceedings is commenced without any attendance at family dispute resolution.  Curiously, that is on the basis of an exemption granted by a Registrar in chambers that there has been family violence by one of the parties or that there is a risk that family violence would occur in the future. 

11. The only allegations that are raised in the notice of risk filed with the application suggest:

    The child has been alienated and deprived of relationship with his father and extended paternal family due to the mother making false allegations of domestic violence.

    and:

    The child is at risk of continued parental alienation. 

    A final allegation is made:

    The mother has made previous allegations of physical, sexual, emotional abuse against the father.

12. What must be made clear – although, it is not germane to the orders that will be made today, transferring these proceedings to the Family Court of Australia– is that the Registrar could not possibly have been satisfied that a finding was available that there has been family violence by a party or that there is a risk of family violence.  The application for exemption is dealt with by the Registrar in chambers on an ex parte basis.  The reasons for the exemption decision are not transcribed.  However, the only evidence that one would have had regard to, is that which is led by the applicant for the exemption.  On the basis of the notice of risk filed by Mr Mohsen, there could not be any reasonable basis to be satisfied that family violence has occurred or that there is a risk of family violence as the applicant specifically denies that it has occurred.  Thus, the exemption would appear, on its face, inappropriate. 

13. Leaving that aside, however, the application is before the court.  The issue to be determined today is the appropriate means by which the matter will be addressed and moved forward. 

14. I propose to transfer the proceedings to the Family Court of Australia. That is on a number of bases which can be conveniently addressed by reference to rule 8.02 of the Federal Circuit Court Rules 2001[2].  I will deal with each of the factors set out therein. 

Whether the proceedings involve questions of general importance, such that it is desirable that there be a decision of the superior court. 

[2] Federal Circuit Court Rules 2001 (Cth) r 8.02.

1. The application that is brought follows upon the conclusion of the earlier tranche of litigation in which clear and determinative orders were made.  The relief that is now sought is entirely contrary to that which is sought.  It might be suggested that a Rice v Asplund[3] issue, as it is often referred to, arises, being a balance with respect to [B]’s best interests in the reopening of litigation versus the termination of the proceedings at an early time to avoid his exposure to further litigation.  Those issues of general importance align, to my mind, with additional matters which warrant the matter being referred to the superior court.

   [3] Rice & Asplund (1979) FLC 90-725.

2. The other issue of general importance relates to the very nature of this application.  There has been an earlier tranche of litigation in which both parties participated and in which an Independent Children’s Lawyer represented the interests of young [B].  That litigation was concluded following a hearing of some days duration and a lengthy judgment delivered.  The judgment was the subject of appeal to the Full Court.  The appeal was dismissed.  All of those circumstances, again, would suggest that the matter should return to the court which had earlier dealt with it. 

3. There is nothing less complex about the proceedings on this occasion.  Indeed, it might be suggested far more complex, there now being allegations that evidence was manufactured.  It is unclear whether those allegations were raised in the earlier proceedings.  The appropriate forum to address that issue is, again to my mind, the forum which dealt with the earlier proceedings. 

If transferred, whether the matter will be heard and determined at less cost and more convenience.

1. This is unclear.  In any event, it is an issue of which is the appropriate court. 

Whether proceedings will be heard earlier in the superior Court.

1. This is also unclear.  However, the matter could not be heard in this court, even if contained to a fixture of four days or less, until 2021 at the very earliest.

The availability of particular procedures.

1. This is a pivotal issue in this determination.  The proceedings relate to allegations regarding the efficacy of evidence in the earlier tranche of proceedings, which evidence was fully tested at trial and was the subject of an appeal to the Full Court (which appeal was dismissed).

2. The procedures of the Family Court will permit the matter to return as soon as practicable before the trial judge who had dealt with the matter on the earlier occasion or, if considered, another judge of the superior Court.  I am satisfied that is the appropriate course in light of:

   a)The apparent complexity of the matter;

   b)The allegations that are raised; and

   c)The familiarity of the prior trial Judge with those issues; and/or

   d)The issue raised that the Court was misled.

Wishes of the parties

1. The Mother does not appear today.  It would appear that service of the Mother was affected through lawyers previously retained but no longer retained by the Mother.  Leave has been granted this morning for those lawyers to withdraw and their courtesy in appearing for that purpose is appreciated. 

2. No request has been made of the Father as to his views in relation to the transfer.  It is simply the appropriate path which should follow.  Indeed, the matter should have been filed and listed to the Family Court at the time of its filing. 

Other issues

1. The case, clearly, will occupy a significant trial fixture well in excess of four days.

2. The case will require significant management, which is simply beyond the resources of this Court.

3. Based upon the material that has been filed to date, the affidavit to which I have referred – some two reams of paper – it is improbable that the final hearing of this case – if there is to be a final hearing on its merits – could be concluded in under four days. 

4. There is the further and more significant issue of determining whether it is in the child’s best interests for a further hearing to occur or whether, consistent with Rice & Asplund[4] as reaffirmed as relevant and appropriate authority of Warnick J,[5] the matter should be terminated at an earlier time.

   [4] Rice & Asplund (1979) FLC 90-725.

   [5] Justice Warnick in SPS and PLS (2008) FLC 93 -363 at 81 “When the threshold question described in Rice and Asplund is determined as a preliminary matter it remains a determination “on the merits.” Where an application is dismissed at a preliminary stage it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of competence with form and procedure but rather because assuming the evidence of the applicant is accepted there is insufficient change of circumstance shown to justify embarking on a hearing.”.

5. For all of those reasons, I am satisfied that the proceedings must be transferred, and, accordingly, orders are made as follows.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate: 

Date:  17 January 2020