Mohsen & Collings: Adjourning family law proceedings due to criminal charges against the father

The case of Mohsen & Collings [2015] FAMCA 583 involves an application on behalf of the mother to adjourn proceedings due to the father being subject to pending criminal proceedings for offences against the mother. The applicant father filed an application seeking parenting orders in relation to the child on 17 July 2013. On 13 July 2015 the father attended a Police Station where he was interviewed in relation to various allegations. The father was subsequently charged with assault occasioning actual bodily harm on the mother on two occasions and aggravated sexual assault of the mother.

The mother was interviewed by the single expert Dr C in late September and early October 2014. In his report to the Court he found that she was undergoing “significant anxiety” which was exacerbated by the father’s alleged family violence. The mother’s apprehension of the father and his family had resulted in her attending Court under the protection of a safety plan and it was anticipated that she would have to present evidence during the father’s criminal proceedings.

The Court cited the principles outlined by Wooten J in McMahon v Gould that primae facie the father is entitled to have his action tried in the ordinary course, however there must be a consideration of “the balancing of justice between the parties”, taking all circumstances into account. The Court also considered the judgment of Re K, which provides that the interests of the child are paramount, with the interests of the parties being a secondary consideration.

The Court took a number of factors into consideration when deciding whether to allow an adjournment. Any parenting orders made by the Court could not override the bail conditions the prohibiting any contact between the father and mother or their child, and so parenting orders would have no short-term effect on the parties. Another consideration was that the result of the criminal law proceedings are relevant to the family law matter and so it was preferable for the final orders to be made following the conclusion of the criminal law proceedings.

Other factors in favour of allowing an adjournment is that the father’s bail conditions disallowed him having contact with the mother or child and these conditions were reflected in the current interim orders and the Court’s view that the adjournment was in the best interests of the child. The evidence provided by Dr C was also taken into consideration and weighed in favour of ordering an adjournment of proceedings.

Taking all these factors into account, the Court ordered that the hearing dates of the trial be vacated and the present family law proceedings be adjourned to await the outcome of the father’s criminal proceedings.

Boyce Family Law
Family Lawyers Sydney

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