Mohsen & Collings (No.2)

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.