Mohsen & Collings (No.2)

Case [2021] FamCA 170

FAMILY COURT OF AUSTRALIA

Mohsen & Collings (No.2) [2021] FamCA 170

File number(s): PAC 3006 of 2013
Judgment of: MCCLELLAND DCJ
Date of judgment: 30 March 2021
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Summary Dismissal – Ex parte – Where the father has filed an Initiating Application seeking reconsideration of final parenting orders made in 2017 – Where the orders made in 2017 provided for the father to spend no time with the child – Where the single expert made recommendations for the father not to have a parenting role in the child’s life unless and until he acknowledges he perpetrated family violence, engages in therapy and the child is of a certain age – Consideration of Rice and Asplund principles – Orders made for summary dismissal of the Initiating Application.
Legislation:

Family Law Act 1975 (Cth) ss. 45A, 65D

Family Law Amendment (Family Violence and Other Measures) Act 2018 (Cth)

Explanatory Memorandum to the Family Law Amendment (Family Violence and Other Measures) Bill 2018

Explanatory Memorandum to the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011

Cases cited:

Elmi & Munro (2019) FLC 93-912

Marsden & Winch [2009] FamCAFC 152

McEnearney & McEnearney (1980) FLC 90-866

Poisat & Poisat (2014) FLC 93-597

Rice and Asplund (1979) FLC 90-725

Ritter and Ritter [2020] FamCAFC 86

SPS & PLS [2008] FamCAFC 16

Stativa & Stativa [2015] FamCAFC 170

Tindall & Saldo (2016) FLC 93–727
Number of paragraphs: 29
Date of hearing: 24 February 2021
Place: Sydney by web conference
Counsel for the Applicant: The Applicant appearing in person by video
Counsel for the Respondent: No appearance by or on behalf of the Respondent

ORDERS

PAC 3006 of 2013
BETWEEN:

MR MOHSEN

Applicant
AND:

MS COLLINGS

Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

30 MARCH 2021

THE COURT ORDERS THAT:

1.The Initiating Application filed 2 October 2019 is dismissed.

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

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 17.02 Family Law Rules 2004 (Cth).

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).

REASONS FOR JUDGMENT

McClelland DCJ:

INTRODUCTION

  1. This matter is before the Court, at the Court’s own initiative, for consideration of whether the proceedings should be summarily dismissed pursuant to s 45A of the Family Law Act 1975 (Cth) (“the Act”). The substantive proceeding, which is the subject of consideration, is that commenced by way of Initiating Application filed 2 October 2019 by Mr Mohsen (“the father”), who seeks a reconsideration of the final parenting orders that were made by a trial judge of this Court on 25 January 2017.

    BACKGROUND

Continue reading Mohsen & Collings (No.2)

Sign in free to access the full text

Details
AGLC
Mohsen & Collings (No.2) [2021] FamCA 170
Case
[2021] FamCA 170
Decision Date

CaseChat Overview and Summary

In *Mohsen & Collings (No.2)*, McClelland DCJ considered an Initiating Application filed by the father, Mr Mohsen, seeking a reconsideration of final parenting orders made in 2017. These original orders stipulated that the child, B, would have no time with the father. The father's application sought to reintroduce B to him, with a view to B living with the father and the mother spending time with B. The proceedings were before the Court on its own initiative to determine if the father's application should be summarily dismissed pursuant to section 45A of the *Family Law Act 1975* (Cth).

The central legal issue before the Court was whether the father had established a reasonably arguable case that he would succeed in obtaining orders varying the existing parenting arrangements. This required the Court to consider whether there had been a material change in circumstances since the original orders were made, applying the principles established in *Rice* and *Asplund*. The Court also had to assess the potential detriment to the child and the mother if the father were to pursue his application, particularly in light of findings of family violence in the original proceedings.

McClelland DCJ reasoned that while the father had, in an affidavit filed in February 2021, acknowledged his past conduct constituted family violence and taken responsibility for his actions, this was insufficient to warrant a variation of the existing orders. The Court noted that the original orders, made by Rees J, were based on findings of family violence and that the mother's emotional and psychological well-being, and consequently her parenting capacity, would be adversely affected by the child spending time with the father. The father's affidavit did not address the further conditions recommended by a single expert, namely that the father undergo psychological therapy and that the child reach an age where he could make his own decision about spending time with the father. The Court found that the child, born in 2012, was not yet of an age to make such a decision. Therefore, the father had not established sufficiently changed circumstances to justify revisiting the 2017 orders.

Consequently, McClelland DCJ was satisfied that the father had no reasonable prospect of successfully prosecuting his Initiating Application. The Court ordered the summary dismissal of the Initiating Application filed on 2 October 2019.

Orders

Orders of the court

PAC 3006 of 2013

BETWEEN:

MR MOHSEN

Applicant

AND:

MS COLLINGS

Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

30 MARCH 2021

THE COURT ORDERS THAT:

1. The Initiating Application filed 2 October 2019 is dismissed.

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

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 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

This matter is before the Court, at the Court’s own initiative, for consideration of whether the proceedings should be summarily dismissed pursuant to s 45A of the Family Law Act 1975 (Cth) (“the Act”). The substantive proceeding, which is the subject of consideration, is that commenced by way of Initiating Application filed 2 October 2019 by Mr Mohsen (“the father”), who seeks a reconsideration of the final parenting orders that were made by a trial judge of this Court on 25 January 2017. BACKGROUND A summary of the background of the proceedings is included in my Reasons for Judgment dated 16 December 2020 ([2020] FamCA 1072 at [4]–[12]). For the purpose of these Reasons for Judgment, it is sufficient to note the following. The parenting proceedings were heard in this Court over a period of five (5) days commencing 9 January 2017, and judgment was delivered on 25 January 2017 (“the primary decision of January 2017”). Her Honour, Rees J made the following orders: (1)That the mother have sole parental responsibility for the child B born in 2011.(2) That the child live with the mother.(3) That the father have no contact with the child. (4)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. The outcome of those proceedings before Rees J was, by way of summary, a finding that the mother had been subject to family violence during the course of her relationship with the father and, as a consequence, the mother’s emotional and psychological well-being would be adversely affected by orders providing for the child to spend time with the father, such that it would adversely impact upon her parenting capacity ([2017] FamCA 29). The father later filed a Notice of Appeal which was heard by the Full Court and dismissed on 18 September 2017 ([2017] FamCAFC 198). On 2 October 2019, the father filed an Initiating Application in the Federal Circuit Court of Australia seeking, inter alia, a reconsideration of the final parenting orders such that the child is re-introduced to the father, and, following re-introduction, the child live with the father and the mother spend time with the child as agreed and, failing agreement, each alternate weekend from Friday to Monday and for one overnight in the alternate week. On 19 May 2020, Registrar Hayward dismissed the father’s Application in a Case filed 18 May 2020 seeking orders for substituted service of the mother. On 1 September 2020, Senior Registrar Campbell dismissed the father’s Application in a Case filed 25 May 2020 seeking an information order that would enable the father to ascertain the location of the child and the mother for the purpose of substituted service of his Initiating Application filed 2 October 2019. The father later filed an Application for a review of the decision of a Registrar, which was heard by me and dismissed on 16 December 2020 ([2020] FamCA 1072) (“the December 2020 decision”).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Further, B, who was born in 2012, is just nine (9) years old and, at that age, it cannot reasonably be said that he is old enough to make the decision for himself as to whether he should spend time with the father, in circumstances where Dr C expressed that, at the time she gave evidence in the proceedings, she had “significant concerns” about B’s potential emotional vulnerability. CONCLUSION AND ORDERS Accordingly, while accepting the father’s evidence at its highest, I am, for the purpose of this aspect of the proceedings, satisfied that he genuinely acknowledges the inappropriateness of his past conduct, which he now accepts amount to family violence. However, the father has not presented evidence that addresses the second and third conditions which Dr C stated were a precondition to the child spending time with the father. That is, the father has not, as yet, undergone a program of psychological therapy to assist him to fully understand and change his behaviour, and further, equally as relevant, the child is not at an age where he is old enough to make the decision as to whether he should spend time with the father. Accordingly, for those reasons, while I appreciate the father’s genuine expression of his desire to re-establish a connection with his son, and having regard to the evidence presented by the father, I am satisfied, in accordance with the provisions of s 45A(2) of the Act, that the father has no reasonable prospect of successfully prosecuting the proceedings commenced by his Initiating Application filed 2 October 2019. This is because he has not established that, in accordance with the principles adumbrated in Rice and Asplund, there are sufficiently changed circumstances which would warrant the Court revisiting the orders made by Rees J on 25 January 2017. I therefore summarily dismiss the father’s Initiating Application filed 2 October 2019.

Ratio Decidendi

Legal Principle Established

In Marsden & Winch, the Full Court at [50] set out matters the court should consider when considering the whether a change in circumstance exists: The court must look at:(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation. CONSIDERATION In my December 2020 decision, at [45]–[47], I summarised my reasons for exercising the Court’s power pursuant to s 45(7) of the Act in the following terms:45In summary and conclusion, the father has not, on the evidence he has presented, established a reasonably arguable case that he will succeed in obtaining orders varying the existing parenting arrangements for the child. At the same time, in attempting to do so there is an unacceptable risk that the father would present evidence and conduct his case in a manner that would re-traumatise the mother. This would not be in the best interests of the child.46For these reasons, on the basis of evidence that he has presented in his case, the father has not satisfied me that it is appropriate or in the best interests of the child to make the orders which he seeks. I therefore dismiss the father’s Application for review of the Senior Registrar’s decision of 1 September 2020 and for the provision of a location order to locate the mother and child for the purpose of serving documents upon the mother.47In circumstances where the father would otherwise be left in a litigation limbo, I give notice to the father that I am contemplated exercising power pursuant to s 45A(7) of the Act to issue a summary decree dismissing the father’s Application on the basis of it having no reasonable prospects of success. To ensure that the father is afforded procedural fairness, I have listed the father’s Initiating Application filed 2 October 2019 for hearing on 24 February 2021 at which time the Court will consider, as a separate and discreet issue, the issue as to whether the proceedings should be dismissed as having no reasonable prospects of success. I will provide the father with the opportunity of submitting such additional evidence and submissions as he requires to respond to the notice that I have given to him including to address the Rice and Asplund principle that I have referred to in this decision. The father relies on an Affidavit filed 7 February 2021 in these proceedings, stating that, having read my December 2020 decision and having reflected upon his conduct, he now accepts that he did act inappropriately during the period of his relationship with the mother and that he did engage in conduct which constitutes family violence as defined in the Act. Specifically, the father states at paragraph 3 of that Affidavit: 3. I have considered the judgement made by Honourable Deputy Chief Justice McClelland on 16 December 2020 in detail and have decided that I need to take full responsibility for my own actions during the course of the relationship with Ms Collings. I am grateful for the additional time provided by Honourable Deputy Chief Justice McClelland as I was given an opportunity to consider and reflect on my actions in the past regarding my behaviour towards my previous partner.