MAIRIE & MALAK - [2011] FamCA 891

FAMILY COURT OF AUSTRALIA

MAIRIE & MALAK

[2011] FamCA 891

FAMILY LAW – CHILDREN – supervision of telephone communication where father in prison or remand for sexual assault charge relating to a child of a different relationship – Overseas travel by mother and children opposed by father – Application granted

Family Law Act 1975 (Cth)

Pishke & Rupp; Bannon & Rupp [2010] FamCA 632
Cotton & Cotton (1983) FLC 91-330 at 78,252
Loddington & Derringford (No. 2) [2008] FamCA 925

APPLICANT:

Ms Mairie

RESPONDENT:

Mr Malak

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLF

2355

2010

DATE DELIVERED:

24 November 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

17 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Laidlaw

SOLICITOR FOR THE APPLICANT:

Rigoli Lawyers

COUNSEL FOR THE RESPONDENT:

In Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr O’Connell

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

IT IS ORDERED

THAT until further order, the father’s communication by telephone with the children E and D is suspended.
THAT the mother has permission to remove the children D born … May 2004 and E born … May 2004 from the Commonwealth of Australia for the purposes of holidays.
THAT pursuant to s 11 of the Australian Passports Act 2005, the Minister may issue an Australian Passport to the children D born … May 2004 and E born … May 2004 without the consent of their father, the said children having permission of the Court to travel internationally.
THAT until further order, the father may send to the children letters, cards and gifts which subject to their content being appropriate to their age, shall be passed on to them by the mother.
THAT the mother provide instructions to the Principal of the children’s school to send to the father upon his request and at his expense, school reports and photographs.
THAT all extant applications are otherwise dismissed.

IT IS CERTIFIED

THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the mother and the Independent Children’s Lawyer.
THAT the Independent Children’s Lawyer is discharged.
Pursuant to s 62B and s 65DA, 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 to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to 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 Act.

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: MLC 2355 of 2010

Ms Mairie

Applicant

And

Mr Malak

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

These reasons concern parenting orders for twin boys D and E who are 7 years of age.

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 MAIRIE & MALAK

Details

AGLC: MAIRIE & MALAK [2011] FamCA 891
Case: [2011] FamCA 891
Decision Date: 24 November 2011

CaseChat Overview and Summary

In the matter of Mairie & Malak, heard before Cronin J, the dispute concerned parenting arrangements for the children E and D. The orders indicate a complex family law proceeding involving significant restrictions on parental communication and international travel permissions.

The court was required to determine the appropriate orders regarding the father's communication with the children, the mother's ability to remove the children from Australia for holidays, and the issuance of Australian Passports for the children without the father's consent. Further issues included the father's ability to send gifts and letters to the children and the provision of school reports and photographs to the father.

Cronin J ordered that the father's telephone communication with the children be suspended until further order, while permitting the mother to remove the children from Australia for holidays. The court also authorised the Minister to issue Australian Passports to the children under section 11 of the *Australian Passports Act 2005* without the father's consent, given the court's permission for international travel. The father was permitted to send letters, cards, and gifts to the children, provided their content was age-appropriate, and the mother was directed to facilitate their delivery. The mother was also ordered to provide school reports and photographs to the father upon his request and at his expense. All other extant applications were dismissed, the Independent Children’s Lawyer was discharged, and fact sheets detailing the obligations and consequences of contravening the orders were annexed.

Orders

Orders of the court

IT IS ORDERED

THAT until further order, the father’s communication by telephone with the children E and D is suspended.

THAT the mother has permission to remove the children D born … May 2004 and E born … May 2004 from the Commonwealth of Australia for the purposes of holidays.

THAT pursuant to s 11 of the Australian Passports Act 2005, the Minister may issue an Australian Passport to the children D born … May 2004 and E born … May 2004 without the consent of their father, the said children having permission of the Court to travel internationally.

THAT until further order, the father may send to the children letters, cards and gifts which subject to their content being appropriate to their age, shall be passed on to them by the mother.

THAT the mother provide instructions to the Principal of the children’s school to send to the father upon his request and at his expense, school reports and photographs.

THAT all extant applications are otherwise dismissed.

IT IS CERTIFIED

THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the mother and the Independent Children’s Lawyer.

THAT the Independent Children’s Lawyer is discharged.

Pursuant to s 62B and s 65DA, 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 to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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