MALAK & MAIRIE - [2015] FamCA 563

FAMILY COURT OF AUSTRALIA

MALAK & MAIRIE

[2015] FamCA 563

FAMILY LAW – CHILDREN – Final Orders – where father a convicted paedophile and serving lengthy term of imprisonment – where victims were biological child and his step-children of later relationship – father seeking communication orders to enable him to foster a meaningful relationship with the children – where mother opposes any contact between the father and children – best interests of the children – children unaware of the serious nature of the father’s offending or his imprisonment – risk of psychological harm – no benefit to children in maintaining relationship with father – orders sought by mother supported by evidence of Family Consultant and Independent Children’s Lawyer – orders made prohibiting the father from communicating with the children by any means.

FAMILY LAW – CHILDREN – Final Orders – consideration of “the rule” in Rice & Asplund (1979) FLC 90-725 – whether there has been a change in circumstance – the Court’s power to make rulings at any point in the proceedings – consideration of “the rule” at the conclusion of the evidence – no change in circumstance – detriment to the children.

FAMILY LAW – PRACTICE AND PROCEDURE – vexatious litigant – where mother seeks an order the father be declared a vexatious litigant and prevented from filing further applications – consideration of s 102QB of the Family Law Act 1975 (Cth) – where father has not filed frequent applications – no order made.

Family Law Act 1975 (Cth) s 60B, 60CA, 60CC, 61DA, 65DAA, 102Q, 102QB

In the Marriage of Bennett (1991) FLC 92-191
Cannon & Acres [2014] FamCA 104
M & M (1988) 166 CLR 69
Marsden & Winch [2009] FamCAFC 152
Marsedn & Winch [2013] FamCAFC 177
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Partington & Cade (No 2) (2009) 42 Fam LR 401
Rice & Asplund (1979) FLC 90-725
Sigley & Evor (2011) 44 Fam LR 439
SPS & PLS (2008) FLC 93-363
St Claire & St Claire and Ors [2013] FamCA 108

APPLICANT:

Mr Malak

RESPONDENT:

Ms Mairie

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLC

2355

2010

DATE DELIVERED:

21 July 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Berman J

HEARING DATE:

28-29 May 2015 and 2 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Litigant In Person

COUNSEL FOR THE RESPONDENT:

Litigant In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Harris

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

That the mother have sole parental responsibility for the children C born … 2000, E and D both born … 2004 (“the children”).
That the children live with the mother.
That the father spend no time with the children.
That the father not be permitted to communicate with the children by any means.
That a copy of these orders be made available to the children’s school and/or other services including the Department of Health and Human Services at…

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 & MAIRIE

Details

AGLC: MALAK & MAIRIE [2015] FamCA 563
Case: [2015] FamCA 563
Decision Date: 21 July 2015

CaseChat Overview and Summary

In MALAK & MAIRIE, the Family Court of Australia considered an application by a father, a convicted paedophile serving a lengthy prison sentence, for orders to foster a meaningful relationship with his children. The mother opposed any contact, citing the risk of psychological harm to the children, who were unaware of the nature of his offending or his imprisonment. The court was required to determine whether communication orders should be made, balancing the father's desire for contact against the paramount consideration of the children's best interests.

The court was asked to consider the "rule" in *Rice v Asplund*, which generally dictates that final orders should be made at the conclusion of evidence, and whether there had been a material change in circumstances warranting a departure from previous interim arrangements. Additionally, the mother sought an order declaring the father a vexatious litigant under s 102QB of the *Family Law Act 1975* (Cth).

Berman J found that there had been no change in circumstances since previous interim orders were made. Applying the principles of *Rice v Asplund*, the court determined that any communication or contact between the father and the children would be detrimental to their well-being, given the father's offending and imprisonment. The court gave significant weight to the evidence provided by a Family Consultant and the Independent Children’s Lawyer, both of whom supported the mother's position. The court also considered the father's history of applications and concluded that he did not meet the threshold for being declared a vexatious litigant.

Consequently, the court made final orders granting the mother sole parental responsibility and determining that the children live with her. The father was ordered to spend no time with the children and was prohibited from communicating with them by any means. The court also ordered that a copy of these orders be made available to relevant services at the mother's election and removed the proceedings from the active pending list.

Orders

Orders of the court

That the mother have sole parental responsibility for the children C born … 2000, E and D both born … 2004 (“the children”).

That the children live with the mother.

That the father spend no time with the children.

That the father not be permitted to communicate with the children by any means.

That a copy of these orders be made available to the children’s school and/or other services including the Department of Health and Human Services at the election of the mother.

The proceedings be removed from the active pending list of cases.

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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