MALAK & MAIRIE

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.