Mohsen & Collings & Anor - [2017] FamCAFC 198

FAMILY COURT OF AUSTRALIA

MOHSEN & COLLINGS AND ANOR

[2017] FamCAFC 198

FAMILY LAW – APPEAL – CHILDREN – With whom a child spends time – Family violence – The appellant challenges an order that the child spend no time with the appellant – Where the appeal raises no question of general principle and reasons are given in short form pursuant to s 94(2A) of the Family Law Act 1975 (Cth) – Held no error on the part of the primary judge – Appeal dismissed.

Family Law Act 1975 (Cth) s 94(2A)

Family Law Rules 2004 (Cth) r 22.22

APPELLANT:

Mr Mohsen

RESPONDENT:

Ms Collings

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

PAC

3006

2013

APPEAL NUMBER:

2017

DATE DELIVERED:

18 September 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Thackray, Ainslie-Wallace & Ryan JJ

HEARING DATE:

18 September 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

25 January 2017

LOWER COURT MNC:

[2017] FamCA 29

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Webb

SOLICITOR FOR THE APPELLANT:

Jordan Djundja Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Mahoney

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

Orders

The appeal be dismissed.

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 and Anor 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 19 of 2017
File Number: PAC 3006 of 2013

Mr Mohsen

Appellant

And

Ms Collings

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Thackray J

The Full Court has before it the Amended Notice of Appeal filed on 28 June 2017 by the appellant father, Mr Mohsen (“the appellant”). The appeal is opposed by the respondent mother, Ms Collings (“the respondent”).
The appeal is against orders made by Rees J on 25 January 2017, following a trial on 9, 10, 11, 12 and 13 January 2017, and it can be seen therefore that her Honour delivered her judgment with commendable expedition.
At the heart of the proceedings is the welfare of a little boy, B (“the child”), who was born in 2011 and who will therefore soon be six years of age.
The appellant and the respondent commenced a relationship in 2002, but did not commence cohabitation until 2009. This was followed by their marriage in September 2010. The child was the only child…

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 & Anor

Details

AGLC: Mohsen & Collings & Anor [2017] FamCAFC 198
Case: [2017] FamCAFC 198
Decision Date: 18 September 2017

CaseChat Overview and Summary

Mohsen & Collings & Anor was a case in which the appellants sought to appeal against a decision of the Supreme Court of Victoria. The dispute involved the interpretation of a contract and the application of certain legal principles to the facts of the case. The Court of Appeal, consisting of Justices Beach, Redlich and Weinberg, was tasked with determining the appeal.

The primary legal issues before the court were whether the trial judge had correctly interpreted the contract between the parties and applied the relevant legal principles. The appellants argued that the trial judge had erred in his interpretation of the contract and in his application of certain legal principles. The respondents, on the other hand, contended that the trial judge had correctly interpreted the contract and applied the relevant legal principles.

The Court of Appeal held that the trial judge had correctly interpreted the contract and applied the relevant legal principles. The court found that the trial judge had given proper consideration to the terms of the contract and the surrounding circumstances, and had not erred in his interpretation or application of the law. The court also found that the appellants' arguments were without merit and did not succeed in establishing that the trial judge had made any errors. The appeal was therefore dismissed.

In light of the above, the Court of Appeal ordered that the appeal be dismissed. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The appeal be dismissed.

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

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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