Mohsen & Collings (No.2)
[2021] FamCA 170
•30 March 2021
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
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”).
As earlier noted, pursuant to s 45A(7) of the Act, the Court, on its own initiative, listed the matter for hearing as to whether this matter should be summarily dismissed.
THE LAW – CONCEPTS AND PRINCIPLES
Relevant legislation
Section 45A of the Act relevantly provides:
No reasonable prospect of successfully prosecuting proceedings
(2) The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:
(a) the first party is defending the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.
When there is no reasonable prospect of success
(3) For the purposes of this section, a defence or proceedings or part of proceedings need not be:
(a) hopeless; or
(b) bound to fail;
to have no reasonable prospect of success.
Proceedings that are frivolous, vexatious or an abuse of process
(4) The court may dismiss all or part of proceedings at any stage if it is satisfied that the proceedings or part is frivolous, vexatious or an abuse of process.
(5) To avoid doubt, proceedings or a part of proceedings are not frivolous, vexatious or an abuse or process merely because an application relating to the proceedings or the part is made and later withdrawn.
Section 45A was inserted into the Act by the Family Law Amendment (Family Violence and Other Measures) Act 2018 (Cth). The Explanatory Memorandum to the Family Law Amendment (Family Violence and Other Measures) Bill 2018, at paragraphs 74 to 77, relevantly states:
74.Item 14 would insert new section 45A into the Family Law Act to clarify and modernise the powers of courts under the Act to summarily dismiss unmeritorious applications. It is not intended to change the matters that a court must be satisfied of when determining that a proceeding or defence should be dismissed. It would replace existing section 118, which would be repealed by Item 23.
75.An explicit power to dismiss unmeritorious applications or arguments brought to harass a party would improve outcomes for victims of family violence by allowing a court to prevent the use of its courtroom as a tool for perpetrators of family violence to perpetuate violence. The new section would complement existing powers to manage proceedings, conferred on courts by Division 12A of Part VII of the Family Law Act (which provides principles for conducting child-related proceedings).
76.This amendment would also improve court efficiency by providing greater clarity about when applications can be dismissed by the court.
77.The Victorian Royal Commission into Family Violence noted with approval the inclusion of this amendment in a previous Bill – the Family Law Amendment (Financial Agreements and Other Measures) Bill 2015. The report of the Commission stated that “[s]uch an amendment may go some way to help courts dismiss applications where it is clear that parties are using proceedings merely as a means to further perpetrate violence” .
Principles regarding summary dismissal
It was observed by the Full Court, in Stativa & Stativa [2015] FamCAFC 170, that the court should take a cautious approach to summary dismissal of proceedings. The Full Court said at [8]:
The power to summarily dismiss an action must be rarely and sparingly used (see Pelerman v Pelerman (2000) FLC 93-037). The Full Court discussed the power of the court to summarily dismiss proceedings in Bigg v Suzi (1998) FLC 92-799 at 84,974–84,975 and adopted the articulation of the principles of Kirby J in Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541 (“Lindon”) at 544–545, which may conveniently be summarised thus:
•It is a serious matter to deprive a party of access to the courts and the power to do so should be rarely and sparingly used;
•The party seeking summary dismissal must show that it is clear on the face of the other party’s documents that the other party lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
•That a case appears weak and unlikely to succeed is of itself not sufficient to satisfy summary dismissal;
•If there is a serious legal question to be tried, then it should ordinarily be determined at a trial of the issues;
•Where, notwithstanding a defect in the pleadings, if it appears that a party may have a reasonable cause of action which has not been put in proper form, a court will ordinarily allow that party to reframe the pleadings; and
•The “guiding principle” is doing what is “just”. In Lindon, Kirby J said at [545]:
If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
Section 65D(2) of the Act empowers the court to make “a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order”. However, the principle derived from the decision of Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”) provides guidance as to whether the Court should exercise its discretion to make orders revisiting parenting orders which are already in place. In that respect, in Poisat & Poisat (2014) FLC 93-597 and Elmi & Munro (2019) FLC 93-912 at [89]–[91], the Full Court referred to a useful summary of the principle as set out in the explanatory memorandum to the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011, which described the “principle in Rice and Asplund” as limiting:
89.… the court’s capacity to rehear matters in two kinds of cases: those where there is a change in the circumstances of the parties where some new factor has arisen which would justify a serious step; and those where there is some factor which was not disclosed at a previous hearing that would have been material.
90.It is not generally in the best interests of the child to have repeated applications concerning them before the courts…
91.The note following sub-item 47(2) directs the reader to the principle in Rice and Asplund. This note is to assist readers, particularly self-represented litigants, to understand how sub‑items 47(2) links to the common law.
(Family Law Amendment (Family Violence and Other Measures) Bill 2011 (Cth), Explanatory Memorandum. See, also, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth), Supplementary Explanatory Memorandum, at [10]-[13])
As noted, the rationale behind the principal is that it is not generally in the interests of children for there to be repeated applications concerning parenting arrangements for the child: see McEnearney & McEnearney (1980) FLC 90-866; SPS & PLS [2008] FamCAFC 16; Marsden & Winch [2009] FamCAFC 152 (“Marsden & Winch”) at [47].
In Tindall & Saldo (2016) FLC 93–727 at [88], the Full Court observed:
…the relevant threshold determination is not met merely by a conclusion that ‘fresh evidence’ exists. It is, as the cases demonstrate, the nature and quality of the change in circumstances that is relevant.
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.
As noted by the Full Court in Ritter and Ritter [2020] FamCAFC 86 (per Ainslie-Wallace, Aldridge and Rees JJ) at [66]:
The determination of the issue [as to whether proceedings should be summarily dismissed] must only take into account the material on which the respondent seeks to make out the case, or as often expressed takes the respondent’s case “at its highest” unless the respondent’s version is inherently incredible or unreliable (see Munnings v Australian Government Solicitor (1994) 68 ALJR 169 at 171; Bigg & Suzi (1998) FLC 92-799; Webster v Lampard (1993) 177 CLR 598 at 608.
In this matter, I must take the father’s evidence at its highest. That is, that he genuinely has now reflected upon and accepted the inappropriateness of his past conduct. This includes acknowledging that he engaged in acts of family violence against the mother. For the purpose of these proceedings, I must accept the father’s evidence to that effect, and ignore the inevitability that the father’s evidence to that effect would be tested at final hearing in the context of the background to this matter, including:
·The fact that father appealed against the primary decision of January 2017, including for reasons that Rees J had made erroneous findings of fact in respect to the father having perpetrated acts of family violence; and
·The fact that the father has previously relied upon his sworn Affidavits filed 8 November 2020 and 2 July 2020, together with additional evidence referred to in my December 2020 decision (at [15]–[16]), in which he again restated that he has been unjustly and erroneously accused of engaging in acts of family violence against the mother.
Accepting, for the purpose of these proceedings, the father’s evidence that he has in fact reconsidered and reappraised the nature of his conduct, and that he has taken responsibility for his conduct, which he now acknowledges constituted family violence, the father still has two remaining significant hurdles to overcome if he is to satisfy the Court, informed by the principle in Rice and Asplund, that the Court should proceed to hear and determine his Initiating Application filed on 2 October 2019.
Specifically, in the primary decision of January 2017, Rees J noted and accepted the opinion of the single expert appointed in the proceedings, Dr C, a Child and Family Psychiatrist. Relevantly, Dr C opined that, in the event of the Court accepting that the mother was subject to family violence as alleged by her, the father “cannot have a parenting role with B” until:
(1)he takes responsibility for his behaviour (at [159] of the primary decision of January 2017);
(2)undertakes psychological work to understand and change his behaviour (at [159] of the primary decision of January 2017); and
(3)that “B is old enough to make this decision for himself” (at [163] of the primary decision of January 2017).
As noted, in taking the father’s evidence at its highest, I accept, for the purpose of these proceedings, that the father now takes responsibility for his behaviour.
Also, in taking the father’s evidence at its highest, I accept the father’s stated intention that he intends to supplement parenting courses, which he has now attended, by seeking assistance from a psychologist to fully understand and change his behaviour. However, that psychological work, as stated by Dr C to be a precondition for the father spending time with the child, has not, as yet, occurred.
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.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 30 March 2021
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