Mohsen & Collings (No 2) - [2023] FedCFamC2F 572

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mohsen & Collings (No 2) [2023] FedCFamC2F 572

File number(s): PAC 2793 of 2021

Judgment of: JUDGE MURDOCH

Date of judgment: 17 May 2023

Catchwords: FAMILY LAW – PARENTING – Summary Dismissal – where there are final orders in place for the child to live with the mother and spend no time with the father – where the father has attempted to re-agitate parenting proceedings on numerous occasions - where the applicant paternal grandmother now seeks orders to spend time with the subject child – where the paternal grandmother has not seen the subject child for a period of over nine years – where these proceedings have caused the mother significant distress – finding that the paternal grandmother has not met the evidentiary burden to justify the making of orders as sought by her –Application of the paternal grandmother summarily dismissed – no order as to costs.

Legislation:
Family Law Act 1975 (Cth) ss 45A, 45A(2)(b), 60B, 60CA, 60CC, 60CG, 65D, 67N, 69ZN, 117(1), 117(2A)(a) to (g).

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021

Cases cited:
Beck v Beck [2004] FamCA 92

Lindon v Commonwealth (No.2) [1996] HCA 14

Penfold & Penfold [1980] HCA 4

Pitman & Hynes (No 2) [2022] FedCFamC1F 373

Ritter & Ritter [2020] FamCAFC 86

Division: Division 2 Family Law

Number of paragraphs: 50

Date of hearing: 4 May 2023

Place: Parramatta

The Applicant Litigant in Person

Solicitor for the Respondent Mr Griffith, Griffiths Family Law

The Second Respondent Litigant in Person (did not participate)
ORDERS

PAC 2793 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS A MOHSEN

Applicant

AND:
MS COLLINGS

First Respondent

MR MOHSEN
Second Respondent

order made by:

JUDGE MURDOCH

DATE OF ORDER:

17 may 2023

THE COURT ORDERS THAT:
1.The Initiating Application filed by the applicant paternal grandmother on 24 May 2021 as amended on 3 February 2022 and 19 February 2022 is dismissed.
2.There be no order as to costs.
3.The Response filed by the mother on 12 February 2023 and amended on 13 February 2023 is otherwise 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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Mohsen & Collings (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR…

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 (No 2)

Details

AGLC: Mohsen & Collings (No 2) [2023] FedCFamC2F 572
Case: [2023] FedCFamC2F 572
Decision Date

CaseChat Overview and Summary

The case of Mohsen & Collings (No 2) involved proceedings initiated by the paternal grandmother seeking time with her grandson, B. The mother, Ms Mohsen, opposed these proceedings and sought their summary dismissal under section 45A(2)(b) of the Family Law Act 1975 (Cth). The court was required to determine whether the paternal grandmother had a reasonable prospect of successfully prosecuting her application for time with B. The court considered the statutory principles applicable to summary dismissals and the best interests of the child, as outlined in sections 60CA and 60CC of the Family Law Act 1975 (Cth). The court also examined the evidence provided by both parties, including the final parenting orders made in 2017, which found that the father had perpetrated family violence upon the mother, and the mother's affidavit detailing the distress caused by the paternal grandmother's application.

The court found that the paternal grandmother had not met her evidentiary burden to justify the making of orders as sought by her. The court accepted that the paternal grandmother had no intention of allowing B to come into contact with the father, but noted that there was no evidence to support a finding that B, who was not even two years old at the time of the separation of his parents, would remember the paternal family. The court was not satisfied that the paternal grandmother had established that it was in B's best interest to re-establish a relationship with her. The court considered that allowing these proceedings to continue would negatively impact on the mother's parenting ability and would thus negatively impact B's welfare. The court also found that there was a risk that the continuation of these proceedings would enable the paternal family to ascertain the location of the mother and B, which was not in B's best interests.

Accordingly, the court dismissed the paternal grandmother's application and made no order as to costs. The court emphasised the importance of protecting the welfare of the child and the need to actively manage the conduct of child-related proceedings to safeguard the child from abuse, neglect, or family violence. The court found that the paternal grandmother's application had no reasonable prospect of success and that it was in the best interests of B to dismiss the application.

Orders