MAIRIE & MALAK

[2013] FamCA 89

FAMILY COURT OF AUSTRALIA

MAIRIE & MALAK [2013] FamCA 89

FAMILY LAW – CHILDREN – father in prison for 18 years for sexual assault – Sentencing occurs after applications for orders were filed – Father seeks adjournment for lawyers to get instruction; no basis – Adjournment refused – Proper to permit father to start again if he wished to do so.

Family Law Act 1975 (Cth)

APPLICANT: Ms Mairie

RESPONDENT: Mr Malak

FILE NUMBER: MLC 2355 of 2010

DATE DELIVERED: 7 February 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 7 February 2013

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Saville

SOLICITOR FOR THE RESPONDENT: Cash & Stavroulakis Lawyers

Orders

1. That the application in a case filed by Ms Malak on 17 October 2010 is struck out.

2. That the application in a case filed by Ms S on 17 October 2012 is struck out.

3. That the application in a case filed by the father on 9 November 2012 is struck out.

4. That all extant parenting orders are discharged.

5. That the mother have sole parental responsibility for the children D and E both born … May 2004.

6. That the children live with the mother.

7. That until further order of a court, the father be restrained by injunction from contacting the children.

8. That the father’s application this day for an adjournment is refused.

9. That the application of the mother otherwise filed on 16 August 2012 is dismissed.

10. That pursuant to s 65DA(2) and s 62B, 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 these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mairie & Malak has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2355 of 2010

Ms Mairie

Applicant

And

Mr Malak

Respondent

REASONS FOR JUDGMENT

1. Before me today is a variety of applications that unfortunately I have to deal with sequentially in time. 

2. The first application is an initiating application by Ms Mairie, to whom I shall refer as “the mother”.  That application was filed on 16 August 2012.  Searching through this file, which is in numerous volumes and contains about 70-odd documents, there has never been a response filed by Mr Malak, to whom I shall refer as “the father”. 

3. I have a second application which, in time, is by Ms M who, it seems, is the mother of the father.  On the same day another application in a case was filed by Ms S. 

4. The fourth application, in time, is that of the father himself, filed on 9 November 2012.  These applications were variously listed in late November, 29 November 2012, to be precise. 

5. For reasons that do not now matter, at the request of everybody and with the consent of the mother, they were all adjourned to today.  This morning, counsel has appeared on behalf of the father and I note from the Court file that no Notice of Address for Service has been filed.  Her application is simply for an adjournment of the father’s application.  The application is simply because her instructors have just taken over a file from Legal Aid and it would seem have not yet had the opportunity to even speak to the father.

6. As a result of a lot of material that I have been given today, it is clear that the father is now in prison and, from what I have been told was sentenced to 18 years only a few days ago.  That concerned a sexual assault on his own child.  It does not take much imagination to understand that a sexual assault of a child is not only serious for the purposes of a parenting dispute, but in the criminal law justice system, 18 years is a very long time.  I can presume that this was treated extremely seriously by the Court that sentenced him.  I make that observation even without the benefit of the sentencing remarks of the sentencing judge. 

7. The application which the father’s counsel seeks to adjourn concerns orders sought by the mother that she thought would have the effect of taking the father out of the lives of the children of his relationship.  To a very large extent that has already happened. 

8. In 2009 Brown J made orders that the father have contact with these children and I varied those orders in 2011.  All of those orders involved face-to-face contact.  It seems clear that the father is now in New South Wales and a long way from the children.  Having regard to what I have just said about his sentence, it would seem most unlikely that any of the existing orders of the courts (whether suspended or not) about face-to-face contact are likely to take place.  It would seem, under those circumstances, that what the father seeks in his application, which is the fourth to which I referred, is the keeping of his relationship alive and having some contact with those children by electronic means or by presents and cards.  Having regard to the sentence that he has now been delivered, it will be a significant problem for him to convince a Court that he can be an adequate and proper role model for these children.  The mother has made her position very clear that she resists any contact at all and her application seeks to have him removed from their lives completely. 

9. The second and third application seeks, effectively, some form of contact electronically by the grandmother and the aunt of these children.  In October 2012 I gave those two applicants permission to appear by telephone at the 2012 hearing.  It would seem from the addresses on the various documents that they are not prepared to provide their proper residential addresses and indeed have, even in their affidavits, described their addresses of care of a post office box in Town B, New South Wales.  Ironically enough that is the address of the Town B Prison.  I am not even sure that the father is currently in the Town B Prison.  When the Court wrote to each of those persons the correspondence came back unclaimed.  The Court attempted again and the correspondence again came back.  Even if it was intended by the father that he have control of those proceedings, it seems that either the post office or the prison does not know about it. 

10. Ms Mairie, the mother, has given me a letter today which I have asked her to provide also to counsel for the father which clearly indicates that the father was assisting his mother and his sister in respect of their applications for some sort of contact with the children.  They are not here.  They filed no further material since they filed their applications in October and the Court has endeavoured to let them know when the proceedings were to be heard.  Because of the way in which they have structured their documents, they have not been cooperative.  It is important also to note that the grandmother describes herself as almost 80 years of age and in her affidavit, she set out that she wished to have some face-to-face contact with these children when her son was released from prison.  Presumably she did not know, at that stage, that he was about to be sentenced to 18 years imprisonment which would obviously make her 98 years of age when she ultimately had that opportunity.  The gravamen of her application and that of the sister, therefore, is effectively for some form of electronic communication. 

11. On the basis:

    a)that the father has had a significant change of circumstances;

    b)his whole case was predicated on the basis of, presumably, a relatively short term in prison; and

    c)that he also sought that I recuse myself and counsel is not in a position to argue that matter today,

    it seems to me that the sensible course of action is to strike his application out and also the application of the grandmother and the sister on the basis that they can in the future, if they are serious about their applications, put proper material before the Court based upon the most significant event in the father’s life, which is his recent imprisonment sentence.  On the basis of that and what would appear to be an enormous waste of the Court’s time otherwise, I propose to refuse the application for the adjournment.  As I said, that problem can be sorted out by the father putting proper material before the Court and he would not face any estoppel point. 

12. That then leaves the question of the mother’s application.  It seeks to exclude the father from the lives of the children and on the basis of the sentence, it seems logical that the orders of 2009 and 2011 should be at least discharged to ensure that they are not extant when they will never be carried out. 

13. The mother also seeks an order that the father be restrained from contacting or harassing the children or herself and that he not be permitted to be within a kilometre of her residence or the children’s school.  Having regard to his sentence, I would have thought that it is unlikely that he is going to be in a position to be within a kilometre of her residence or the schools, in any event.  As for contacting the children, it seems to me that the logical step here is to grant the application that he not contact or harass the children until the issue is determined by the Court.  In other words, that he file a proper application setting out what form of contact he wants with the children in the future and why.

14. There are two other significant parts of the application.  The first is that the mother seeks that the father sign the necessary papers to release his share of funds held by the Supreme Court.  It seems to me that that is an unnecessary order having regard to the fact that the mother is not in a position to tell me just how those funds could be released even if the respondent father signed the documents.  It may be that he has no control over the disposal of those funds because the Supreme Court will treat him as having no such right as a prisoner.  I am not aware of the circumstances under which that order could be efficaciously made and on that basis I should not make the order. 

15. The other matter is that the mother seeks a declaration that “the respondent is a vexatious litigant”. This Court has a power under s 118 of the Family Law Act 1975 (Cth) (“the Act”) to make orders precluding people who bring vexatious applications. It is not appropriate that there be declarations that somebody be deemed a vexatious litigant but rather that they be precluded from bringing unnecessary applications or applications that are a waste of time. It would be inappropriate for me to make that order today without knowing whether the father is now going to bring a proper application which will undoubtedly be limited in its scope, because he is in prison. It may very well be that on the basis of what application he does make, a Court might, in the future, consider s 118 of the Act, but on the basis of the material before me thus far, it is not appropriate that I make that order at this stage.

16. I propose therefore to deal only today with the mother’s application for the discharge of the orders that she seeks in paragraphs 1 and 2 of her application and I will hear from the mother in respect of paragraph 3 and in relation to the question of any injunctive orders about him contacting her or the children. 

    RECORDED  :  NOT TRANSCRIBED

17. Further to my reasons about the various applications, the application that I am now going to deal with specifically seeks to exclude the father from the lives of the children until such time as a proper application is made.  That is not the way the mother would seek it but I think that is the appropriate way to deal with it, bearing in mind the background.

18. Discharging or even varying previous parenting orders means making a parenting order and therefore, the provisions of Part VII of the Act must be followed. This is a most unusual case and the way it has been conducted has made it so much more difficult to try and deal with it in some formal process. That does not alleviate the problem of trying to deal with it in Part VII.

19. Part VII of the Act provides that children have a right to be involved in the lives of their parents. This is a raft of objects and principles set out in s 60B of the Act. Every one of those principles, however, is underwritten by the fact that children have those rights and they should be exercised if it is in their best interests.

20. I am largely bereft of much evidence in this case but the facts are hardly in dispute. 

21. Section 60CA of the Act provides that when the Court is making a parenting order or intends to do so, it must regard the best interests of the child as the paramount consideration. These children, I am quite satisfied, are very confused and uncertain as to where their father is. I distinctly recall an indication from the father that he did not want the children to know that he was in prison and that problem will have to be addressed, having regard to the fact that he will be there for a long time.

22. When the Court makes an order of a parenting nature, it is obliged to consider s 60CC.  That particular provision sets out how the Court determines what is in the best interests of children.  I do not propose to go through those matters seriatim but for the purposes of any person reading these reasons, it can be presumed that I have taken every one of them into account.

23. The fundamental problem here is that there can be no physical contact between father and children.  It goes without saying that one of the considerations in s 60CC is parental capacity.  The father cannot carry out that capacity without restrictions.  Even from the point of view of telephone contact or email contact, he has to have the State of New South Wales’ permission to be able to do it.  No doubt, as a prisoner of the Crown, he has rights but he cannot have unrestricted time with these children because he has lost his liberty.

24. One of the other considerations in s 60CC is the attitude to parenting and parental responsibility.  It is hard to imagine a situation where a finding could not be made that someone is an irresponsible parent, where they plead guilty to a serious offence of sexually assaulting a very young child and receive a sentence of 18 years imprisonment.  It is hard to imagine, without even reading the sentencing remarks, how someone could argue that they were to be a responsible parent.  Responsible parenting flows into issues such as role modelling.  How can these children possibly see their father as a role model?

25. There are other matters that I will not go through but it is clear that every one of the issues in s 60CC has problems from the point of view of the father.  The father, in his application, which I propose to strike out, wanted these children interviewed by a psychologist and the appointment of an independent children's lawyer.  That indication in itself shows that he really has little understanding of the problems associated with his children.  These children have been through the court system since 2009.  They were very young at the time and at that stage, there were allegations made against him that the Court was not satisfied about.

26. These children need to get on with their lives and if the father is going to put a proper application before the Court setting how he proposes to continue his role as a father, then the Court can consider it.  On the basis of the material that I have, the absence of a proper response by him to the application sought by the mother, it is appropriate that I grant the mother’s application.  It is in the best interests of the children that it be granted.

27. There is no question in this case that I do not need to consider the question of parental responsibility.  Section 61DA starts with a presumption when a parenting order is made.  That presumption is rebutted if it is not in the best interests of the children that the parents have that responsibility.  The mother and the father cannot communicate with one another, even if they could physically do it.  The mother wants nothing to do with the father and having regard to what I have heard in the background of this case, that is probably not really surprising.  Under those circumstances, the presumption must be rebutted.

28. I find it is in the best interests of the children that the orders all be discharged and that there be no contact between the father and the children, subject only to him making a proper application with proper grounds and proper evidence.  On that basis, I will discharge all parenting orders.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 7 February 2013

Associate: 

Date:  20 February 2013