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 of their relationship, although there was another child in the home, a young boy at the time, who is now an adult.
The appellant and the respondent separated in 2013, when the child was young. Since then, for reasons that are explained in her Honour’s judgment, the child has spent no time of any significance with the appellant.
Her Honour ordered that the respondent have sole parental responsibility for the child and that he live with the respondent. The order of contention in this appeal is order 3, which provided that the appellant have no contact with the child.
It has been put to us this morning that this is an order of the utmost gravity. There are few, if any, more draconian orders that can be made than to deny a child the opportunity to spend time with one of their parents. It is therefore apparent that the most careful consideration must be given to whether or not such an order should be made in the first place and, when it is made, for an appellate court to consider very carefully whether such an order was justified.
In these proceedings, under s 94(2A) of the Family Law Act 1975 (Cth), this Court is entitled to give its reasons in short form in the event that the appeal is to be dismissed and if, in the opinion of the Full Court, the appeal does not raise any question of general principle. As these conditions are fulfilled here, I propose to give reasons in short form.
The Amended Notice of Appeal raises six grounds of appeal. However, the submissions provided in support of them fail to identify any error on the part of the primary judge. The appellant, through his counsel, properly concedes that her Honour was exercising a wide discretion. Further, none of the grounds challenge the factual findings made by her Honour, and therein lies the fundamental difficulty for the appellant. When one reads the detailed, elegantly expressed reasons of the primary judge, one finds set out, with great clarity and precision, the factual foundation upon which her Honour exercised the wide discretion to which I have referred.
Without seeking to go into the detail, the reasons contain exceedingly serious findings of violence and abuse perpetrated against a pregnant woman and a young mother. They describe, unsurprisingly, the psychological state of the woman who was the subject of this abuse, and the impact upon her of any future association with the person found to have committed this violence. Her Honour considered not only those factual matters, but made reference to the expert evidence of Dr C, including why ideally it would be important for the child to have a meaningful relationship with the appellant. The reasons also contain an exploration of ways in which that might have come about.
But ultimately, based upon all of the unchallenged factual findings, her Honour made a series of critical findings which, in my view at least, have not been successfully attacked in the grounds of appeal or in the submissions advanced in support of them. In my view, the crux of her Honour’s judgment is at [199] and following of the reasons which state:
199.It is likely that, if any order were made which had the effect of re-introducing the [appellant] into the child’s life, the [respondent’s] parenting would be adversely affected.
200.I accept the evidence of Dr C that, if the [respondent] 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 [respondent’s] fears for her and the child’s safety.
202.The child has no relationship with [the appellant]. His relationship with [the respondent] 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.
Her Honour then went on to explain those matters she had considered in reaching that decision. Her Honour also said, at [211] and [212]:
I accept the evidence of Dr C that the [appellant’s] ability to parent the child, and to provide for his psychological needs, is cast in doubt by his violent behaviour towards the [respondent].
I accept that the [appellant] 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 [appellant] has not done so.
In seeking to challenge those findings, a number of attempts were made to impugn what otherwise would appear to be the compelling reasoning of her Honour. Firstly, and in my view surprisingly, the grounds of appeal in various guises, seek to challenge the adequacy of her Honour’s reasons. As I have said, her Honour’s reasons were detailed, comprehensive and, in my view, compelling. Any person reading the reasons for judgment would understand why her Honour reached her decision, and that is the basic test to determine the adequacy of the reasons.
The appellant’s counsel also sought to undermine the decision by suggesting that her Honour should have considered various matters, none of which were ever put to her. The basis for this assertion was that her Honour was dealing with the best interests of a child. It is difficult to see how her Honour, to use one of my colleague’s expressions, should have been obliged to “rummage around” in places unknown to obtain evidence about matters uncertain, in order to advance a case that the appellant, who was legally represented, had not sought to advance himself.
It was also suggested that her Honour should have considered other options, but the only one of any consequence was the possibility of the appellant spending supervised time with the child, which is referred to in ground 1. Apart from the appropriate concession made by the appellant’s counsel that there was no factual foundation to support ground 1, her Honour did consider the option of supervision and explained why that option would not, in any way, be in the child’s best interests. This was because her Honour’s predication was that the respondent in such circumstances would decompensate, which would impact upon her parenting, and would therefore result in a negative outcome for the child.
In ground 2 it was suggested that her Honour’s discretion had miscarried, but as I have said, the discretion is a wide one, and was exercised on the basis of what is now an uncontested factual foundation. Not only was it an outcome available to her Honour, in my opinion it was the only proper outcome.
It is also suggested that her Honour did not give sufficient weight to the benefit to the child of developing a meaningful, albeit limited, relationship with the appellant. That ground cannot stand in view of her Honour’s unchallenged finding that it is not possible for the child to have a meaningful relationship with the appellant for the reasons that her Honour explained.
I conclude by saying what I have already effectively said; this 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. I propose the appeal be dismissed.

Ainslie-Wallace J

I agree with the orders proposed by Justice Thackray and the reasons he gave.

Ryan J

I also agree, but wish to add a few remarks of my own. 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 [appellant] was verbally and physically abusive to [the respondent]. 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 [respondent] was pregnant with the child the [appellant] 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 [respondent] remains afraid of the [appellant];
·    The [respondent’s] fear of the [appellant] is caused by her experience of the family violence perpetrated by him.
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 [respondent] 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 [respondent’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 [respondent] had told Dr J that the [appellant] was responsible for the injuries. Dr J, in the District Court, said that the injuries he observed were consistent with the [respondent’s] complaint of an assault two weeks before.
This is grave and serious violence, and weighty evidence about its effect on the respondent. Her Honour’s reasons are clear and, as the presiding judge said, the appeal has failed to demonstrate any error in the reasoning process. I also support the orders proposed.

Thackray J

The formal order of the Court will therefore be that the appeal be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Ainslie-Wallace & Ryan JJ) delivered on 18 September 2017.

Associate:

Date: 24 October 2017