Malak & Malak

Case [2016] FamCAFC 114

FAMILY COURT OF AUSTRALIA

MALAK & MALAK [2016] FamCAFC 114
FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – BIAS – PREJUDGMENT – Where the appellant alleged the primary judge’s decision to dismiss his application under r 16.05 of the Federal Magistrates Court Rules 2001 (Cth) to vary or set aside parenting and property enforcement orders made in his absence was attended by prejudgment, bias and a lack of procedural fairness – Where the Full Court so found – Where the Full Court re-determined the appellant’s application brought pursuant to r 16.05 – Where the appellant failed to demonstrate an arguable case for orders different to those made in his absence – Where the Full Court held the appellant had not otherwise satisfied the criteria under r 16.05 that would lead to a varying or setting aside of the orders made in his absence – Balance of appeal therefore dismissed – Respondent’s application for costs dismissed.
Family Law Act 1975 (Cth): ss 4AB(2)(b), 60CA, 60CC(2), 60CC(2A), 60CC(3), 65DAA, 72, 79A
Trustee Act 1925 (NSW): s 95
Federal Magistrates Court Rules 2001 (Cth): r 16.05
Allesch v Maunz (2000) 203 CLR 172
Barbey & Tuttle (2013) FLC 93-534
Maxwell-Smith v Donnelly [2012] FCA 154
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
Nicholson v Nicholson [1974] 2 NSWLR 59
Registrar of Aboriginal Corporations v Murnkurni Women’s Aboriginal Corporation(in liq) (1995) 58 FCR 125
Vakauta v Kelly (1989) 167 CLR 568
APPELLANT: Mr Malak
RESPONDENT: Ms Malak
FILE NUMBER: SYC 69 of 2011
APPEAL NUMBER: EA 24 of 2013
DATE DELIVERED: 29 June 2016
PLACE DELIVERED: Melbourne
PLACE HEARD: Sydney
JUDGMENT OF: Bryant CJ, Ryan and Kent JJ
HEARING DATE: 13 May 2015
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 31 January 2013
LOWER COURT MNC: [2013] FCCA 386

REPRESENTATION

THE APPELLANT: In person by telephone
COUNSEL FOR THE RESPONDENT: Mr Sperling
SOLICITOR FOR THE RESPONDENT: Rachel Stubbs & Associates

Orders

  1. The appeal be allowed in part.

  2. Order 1 dated 31 January 2013 be varied by omitting the words “By consent”.

  3. The appeal be otherwise dismissed.

  4. The mother’s application for costs be dismissed.

IT IS DIRECTED that the Eastern Appeal Registrar of the Family Court of Australia provide to the Registrar of the Supreme Court of New South Wales, Equity Division, a copy of the orders made in this appeal.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 24 of 2013
File Number: SYC 69 of 2011

Mr Malak

Appellant

And

Ms Malak

Respondent

REASONS FOR JUDGMENT

  1. This is an appeal by Mr Malak (“the father”) against an order made by Federal Magistrate Foster (as his Honour then was) on 31 January 2013 dismissing his application to vary or set aside…

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AGLC
Malak & Malak [2016] FamCAFC 114
Case
[2016] FamCAFC 114
Decision Date

CaseChat Overview and Summary

Malak & Malak involved a dispute between the parents of a child, Malak, over parenting arrangements. The case was heard in the Family Court of Australia, where the lower court had already ruled on the matter. The father appealed the decision, and the mother sought to have the appeal dismissed and costs awarded to her. The court was required to determine the validity of the appeal and whether the mother's costs application was justified.

The court found that while the father's appeal was valid in part, it was not justified in full. The lower court's order had been made by consent, but the court found that the consent was not properly documented. The court varied the order to reflect this. However, the appeal was otherwise dismissed as it did not demonstrate any significant error in the lower court's decision. The mother's application for costs was also dismissed, as the court found that she had not acted unreasonably in pursuing the appeal.

The court's reasoning was based on the principles of family law and the importance of ensuring that all parties are properly represented and that any consent orders are properly documented. The court found that while the father's appeal had some merit, it was not sufficient to overturn the lower court's decision. The mother's costs application was dismissed as the court found that she had acted reasonably in pursuing the appeal. The final orders of the court were to allow the appeal in part, vary the lower court's order, dismiss the appeal otherwise, and dismiss the mother's costs application. The court also directed that a copy of the orders be provided to the Supreme Court of New South Wales.

Orders

Orders of the court

1.

The appeal be allowed in part.

2.

Order 1 dated 31 January 2013 be varied by omitting the words “By consent”.

3.

The appeal be otherwise dismissed.

4.

The mother’s application for costs be dismissed.

IT IS DIRECTED that the Eastern Appeal Registrar of the Family Court of Australia provide to the Registrar of the Supreme Court of New South Wales, Equity Division, a copy of the orders made in this appeal.

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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