Malak and Mairie - [2009] FamCA 268

FAMILY COURT OF AUSTRALIA

MALAK & MAIRIE

[2009] FamCA 268

FAMILY LAW - CHILDREN - application filed six months after final parenting orders made - new facts and circumstances - allegation of sexual abuse - allegation determined in earlier trial - best interests of children require reconsideration - orders varied

Family Law Act 1975 (Cth) ss 60B(1), 60CC, 60CC(1), (3), (4) and (4A), 61DA, 65DAA(1), (2), 69ZX(3), Part VII, Division 12A
Evidence Act 1995 (Cth) s 240(2)
Family Law Amendment (Shared Parental Responsibility) Act 2006

Hemiro & Sinla [2009] FamCA 181
Moose & Moose [2008] FamCAFC 108
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363
In the Marriage of McEnearney (1980) FLC 90-866
In the Marriage of F & N (1987) FLC 91-813
In the Marriage of D & Y (1995) FLC 92-581
In the Marriage of Newling & Mole (1987) FLC 91-856
Miller & Harrington (2008) FLC 93-383

FATHER:

Mr Malak

MOTHER:

Ms Mairie

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLF

1793

2005

DATE DELIVERED:

8 April, 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

BROWN J

HEARING DATE:

15-17 December, 2008; 16 January and 19 - 20 March, 2009

REPRESENTATION

THE FATHER:

In person

COUNSEL FOR THE MOTHER:

Mr. Laidlaw

SOLICITOR FOR THE MOTHER:

Rigoli & Associates

COUNSEL FOR THE I.C.L.

Ms. Spehr

INDEPENDENT CHILDREN’S LAWYER

Victoria Legal Aid

Orders

That paragraphs (2), (4) and (6) of the orders made herein on 26 June, 2006 be discharged.
That the children C born … April, 2000, and twins D and E born … May, 2004 live with the mother and she have sole parental responsibility for them.
That the father’s application to spend time and communicate with C be dismissed save that C be at liberty to communicate with the father by cards/ letters or telephone, initiated by her.
That the orders made on 23 January, 2008 which provide for D and E to spend time with the father be discharged.
That D and E spend time with the father as follows, and in these orders a reference to Y Centre is a reference to the supervised changeover facility offered by Y Centre:
(a)for five hours on Saturday 16 May, 2009 between 10:00 am. and 3:00 pm. or such other times as can be accommodated by Y Centre;
(b)for six hours on Saturday 18 July, 2009 between 10:00 am. and 4:00 pm. or such other times as can be accommodated by Y Centre;
(c)for six hours on Saturday19 September, 2009 between 10:00 am. and 4:00 pm. or such other times as can be accommodated by Y Centre;
(d)for seven hours on Saturday 21 November, 2009 between 10:00 am. and 5:00 pm. or such other times as can be accommodated by Y Centre;
(e)on the third weekend in January, March, May and July 2010:
(i) from 10:00 am until 5:00 pm. on Saturday, or such other times as c an be accommodated by Y Centre; and
(ii) from 10:00 am. until 5:00 pm. on…

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 Malak and Mairie

Details

AGLC: Malak and Mairie [2009] FamCA 268
Case: [2009] FamCA 268
Decision Date: 8 April 2009

CaseChat Overview and Summary

In this matter before Brown J, the court considered applications concerning the parenting arrangements for three children, C, D, and E. The dispute involved the mother and father's respective roles in the children's lives, including where they would live, with whom they would spend time, and the nature of communication and parental responsibility.

The central legal issues before the court were to determine the living arrangements for the children, the extent of the father's time and communication with each child, and the allocation of parental responsibility. The court was required to consider the best interests of the children in making these determinations, particularly in light of the history of the proceedings and the specific circumstances of the family.

Brown J ordered that the children C, D, and E live with the mother and that she have sole parental responsibility for them. The father's application to spend time and communicate with C was dismissed, with C at liberty to initiate communication via cards, letters, or telephone. The court significantly varied the father's time with D and E, establishing a detailed schedule of supervised and unsupervised time, including school holidays, with specific provisions for changeovers, travel arrangements, and communication. The orders also included provisions for the exchange of information between the parents regarding the children's welfare and education, and restrictions on discussing the proceedings in the children's presence.

Orders

Orders of the court

That paragraphs (2), (4) and (6) of the orders made herein on 26 June, 2006 be discharged.

That the children C born … April, 2000, and twins D and E born … May, 2004 live with the mother and she have sole parental responsibility for them.

That the father’s application to spend time and communicate with C be dismissed save that C be at liberty to communicate with the father by cards/ letters or telephone, initiated by her.

That the orders made on 23 January, 2008 which provide for D and E to spend time with the father be discharged.

That D and E spend time with the father as follows, and in these orders a reference to Y Centre is a reference to the supervised changeover facility offered by Y Centre:

(a) for five hours on Saturday 16 May, 2009 between 10:00 am. and 3:00 pm. or such other times as can be accommodated by Y Centre;

(b) for six hours on Saturday 18 July, 2009 between 10:00 am. and 4:00 pm. or such other times as can be accommodated by Y Centre;

(c) for six hours on Saturday19 September, 2009 between 10:00 am. and 4:00 pm. or such other times as can be accommodated by Y Centre;

(d) for seven hours on Saturday 21 November, 2009 between 10:00 am. and 5:00 pm. or such other times as can be accommodated by Y Centre;

(e) on the third weekend in January, March, May and July 2010:

(i) from 10:00 am until 5:00 pm. on Saturday, or such other times as c an be accommodated by Y Centre; and

(ii) from 10:00 am. until 5:00 pm. on Sunday or such other times as can be accommodated by Y Centre;

(f) on the third weekend in September and November 2010, from 10:00 am. on Saturday until 5:00 pm. on Sunday or such other times as can be accommodated by Y Centre;

(g) from 10:00 am. on 4 January, 2011 until 5:00 pm. on 8 January, 2011;

(h) on the fourth weekend in each school term in 2011, from 10:00 am. Saturday until 5:00 pm. Sunday;

(i) for five days and four nights in the first term school holidays in 2011, commencing on a date to be agreed and, failing agreement, on the first Sunday of the holiday period;

(j) for six days (including five nights) in the second term school holidays in 2011, commencing on a date to be agreed and, failing agreement, on the first Sunday of the holiday period;

(k) for eight days (seven nights) in the third term school holidays in 2011, commencing on a date to be agreed and, failing agreement, on the first Sunday of the holiday period;

(l) for ten days (nine nights) in the summer school holidays in January 2012 at times to be agreed and, failing agreement, to commence at 10:00 am. on 4 January, 2012 and conclude at 5:00 pm. on 14 January, 2012;

(m) thereafter:

(i) for one half of each school term holiday period at times to be agreed and, failing agreement, the first half;

(ii) for two weeks in each summer school holiday period at times to be agreed and, failing agreement :

a. commencing on Christmas Eve in 2012 and each alternate year thereafter; and

b. commencing 9 January, 2014 and each alternate year thereafter; and

(iii) at such other times as are agreed between the parties.

That commencing in 2010, the father communicate by telephone with D and E on alternate Sundays at 5:00 pm. and the mother do all things reasonably necessary to facilitate D and E receiving those calls and keep the father advised of a telephone number on which he can telephone D and E.

That changeovers for time pursuant to paragraphs (5)(a) to (f) and (5)(h) hereof be supervised by Y Centre.

That the father’s time with D and E pursuant to paragraphs (5)(a) to (e) hereof take place in the vicinity of N.

That the father’s time pursuant to paragraphs (5)(f) and (h) hereof take place in the vicinity of N or within a radius of forty (40) kilometres of N.

10.

That time pursuant to paragraph (5)(g) hereof and all time pursuant to paragraphs (5)(i) to (m) hereof take place at the father’s home or such other place as he determines.

11.

That the father be responsible for the costs of D and E’s travel to his home or such other place at which he spends time with them pursuant to these orders, including the costs of any accompanying person in the event the children need to be accompanied when flying.

12.

That if D and E are to travel by air, the mother be responsible for delivering the children to, as the case may be, Avalon Airport or Tullamarine Airport, at the commencement of a period of time with the father and collecting them there at the conclusion of a period of time with him.

13.

That if D and E are to travel by car to the father’s home or such other place as he spends time with them, the father collect and return them to a place agreed between the parties and, failing agreement, outside the N Police Station.

14.

That the mother keep the father advised in writing of:

(a) the residential address of the children;

(b) the school or schools attended by the children; and

advise him forthwith, by telephone, of any significant illness or accident suffered by D or E when in her care.

15.

That the father keep the mother advised in writing of :

(a) his residential address; and

(b) a telephone number at which he can be reached in an emergency; and

advise her forthwith, by telephone, of any significant illness or accident suffered by D or E when in his care.

16.

That the father be at liberty to send cards and small gifts to C, D and E by post on their birthdays and at Christmas and Easter and the mother ensure any such cards and gifts are delivered to the children.

17.

That the father be at liberty to obtain, at his expense (if any) :

(a) a copy of each school report for C, D and E; and

(b) a copy of each order form for school photos of C, D and E;

and this order shall stand as authority to the principal of each school attended by C, D and E from time to time to comply with such requests.

18.

That save with the written consent of the mother, the father be and is hereby restrained from attending at any school attended by C from time to time, unless D and/or E also attend that school, and then only pursuant to paragraph (19) hereof.

19.

That from 2011 the father be at liberty to attend a school attended by D and/or E for an event, activity or function routinely attended by parents PROVIDED THAT save with the consent in writing of the mother, he not remove D or E from such school.

20.

That as soon as practicable the mother provide a sealed copy of this order to the principal of each school attended by C and, in due course, D and E.

21.

That each of the parties by themselves, their servants and agents be and are hereby restrained from discussing the evidence adduced in these proceedings and the judgment herein in the presence or hearing of C, D or E.

22.

That the independent children’s lawyer be discharged one month this date or, in the event a Notice of Appeal is filed, on determination of the appeal.

23.

That a copy of the reasons for judgment herein may be provided to :

(a) Mr. S;

(b) Y Centre;

(d) the Department of Human Services and any DHS employee or member of a police force investigating any subsequent allegation which involves C, D or E.

24.

That all extant applications be otherwise dismissed.

25.

That these proceedings be removed from the List of matters awaiting finalisation.

26.

That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, 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 document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

27.

That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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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