Malak and Mairie (No 2)

FAMILY COURT OF AUSTRALIA

MALAK & MAIRIE (NO. 2) [2016] FamCAFC 120

FAMILY LAW – APPEAL – CHILDREN – where the appellant father appeals orders excluding the father from having parental responsibility for the children and prohibiting all communication between the father and the children – where the father is a convicted paedophile – where the trial judge found that the father posed an unacceptable risk of psychological harm to the children – where the father asserts that the trial judge erred in failing to obtain the children’s views – where the father asserts that the findings of the trial judge were not open to his Honour on the evidence before him – where no error established – appeal dismissed – no order as to costs.

Family Law Act 1975 (Cth) s4, s60CE, s69ZN(3), s60ZX(3)
Evidence Act 1995 (Cth) s 140

Miller v Harrington (2008) FLC 93-383
Rice and Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363
Walter & Walter [2016] FamCAFC 56

APPELLANT: Mr Malak

RESPONDENT: Ms Mairie

INDEPENDENT CHILDREN’S LAWYER: Leanne Sinclair

FILE NUMBER: MLC 2355 of 2010

APPEAL NUMBER: SOA 57 of 2015

DATE DELIVERED: 6 July 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Murphy, Kent & Austin JJ

HEARING DATE: 5 July 2016

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 21 July 2015

LOWER COURT MNC: [2015] FamCA 563

REPRESENTATION

FOR THE APPELLANT: In Person (via telephone)

FOR THE RESPONDENT: In Person

FOR THE INDEPENDENT CHILDREN’S LAWYER: No appearance

Orders

1. That the appeal be dismissed.

2. No order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)) or to record a variation to the order pursuant to r 17.02, Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 57  of 2015
File Number: MLC 2355  of 2010

Mr Malak

Appellant

And

Ms Mairie

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Murphy J

1. The appellant is the father of, relevantly, three children: a girl C, now aged 16, and twin boys, D and E, now aged 12. On 21 July 2015, Berman J made parenting orders, the relevant effect of which was to exclude the father from having parental responsibility for the children, and to preclude him from communicating with them by any means.  From those orders the father appeals.

2. At the time the orders were made, the father was serving an 18 year prison sentence, with a non-parole period of 13 years, for a number of sexual offences.  He will not be…