Keywords: Family Law Act, s 60CE; paedophile father; no communication order; psychological harm
Introduction
In Malak & Mairie (No. 2) [2016] FamCAFC 120 (6 July 2016) the Full Court (Murphy, Kent & Austin JJ) heard an appeal by the father who was serving an 18 year prison sentence for sexual offences. The Full Court had the difficult decision determining whether the father had a parental right to have contact with his children.
Background
The Appellant is the father of three children: a girl (“C”) aged 16 and a twin boys, (“D and E”) aged 12. The father had been serving an 18 year sentence with non- parole for a period of 13 years for a number of sexual offences. These offences were “vile and serious” in nature against his stepchild (“K”), aged 12, at the time of the offence and C.
On 21 July 2015, Berman J made parenting orders, which was to exclude the father from having parental responsibility for the children, and to prevent him from communicating with them by any means. At the time the orders were made the children had not seen their father for a period of 5 years. From those orders the father appealed.
On appeal the Father had argued that his Honour erred in considering the views of the children as the views were not ascertained by the Family Consultant. The Family Law Act 1975, s 60CE provides specifically that ‘[n]othing in [Part VII] permits the court or any person to require the child to express his or her views in relation to any matter’. Secondly, mandatory principles for conducting child-related proceedings require the court to ‘consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings’.
Decision
The father’s position was summarised by his Honour in that, the father viewed his incarceration as a positive feature and unlike other cases, the Court did not need to be concerned with the children’s lives being negatively disrupted according to the father.
Contrary to the father’s appeal argument, his Honour cleverly concluded the risk factors based on evidence into 3 categories, with each overlapping. They are as a follows;
- The nature and extent of the father’s criminal sexual behaviour; and
- The opinion evidence of the Family Consultant and the father’s lack of insight into the impact of his offending behaviour on the children; and
- The Children’s lack of knowledge of the father’s unacceptable sexual activity and such knowledge could impact them moving forward through adolescents.
The real issue then became the risk of psychological harm to the children. Whilst it was obviously unknown, the risk was real and that the evidence of the family consultant was compelling. In addition, the mother had given evidence that the children presented with a range of difficulties and developmental issues but also substantial emotional fragility, which needed to be considered by his Honour.
His Honour recognised that parenting orders have the effect of eliminating any contact or communication between a parent and his children in exceptional circumstances. However the best interests of the children always remains paramount to the court.
In this case allowing the father’s proposed orders would have exposed the children to a real risk of psychological harm. In addition, it was also found that it was not in the best interests of the children to be interviewed by the Family Consultant at the time, and therefore no miscarriage of justice was found.
Kent & Austin JJ had agreed, and the father’s appeal was unanimously dismissed.