Malberd and Malberd and Anor

[2010] FamCA 294

FAMILY COURT OF AUSTRALIA

MALBERD & MALBERD AND ANOR [2010] FamCA 294

FAMILY LAW – CHILDREN – With whom children spend time – Provisions for a special event

APPLICANT: Ms Malberd

RESPONDENT: Mr Malberd

SECOND RESPONDENT: Ms Ariste

FILE NUMBER: NCC 280 of 2010

DATE DELIVERED: 12 April 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 12 April 2010

REPRESENTATION

APPLICANT: In person

RESPONDENT: By telephone

SECOND RESPONDENT: No attendance

Orders

1. That the children be collected by the mother at 10.30am on … April 2010 from the father’s home and be returned to the father’s care no later than 12pm on the following day by the mother returning the children to the father’s home.

2. No order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Malberd & Malberd and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCC 280 of 2010

MS MALBERD

Applicant

And

MR MALBERD

Respondent

And

MS ARISTE

Second Respondent

REASONS FOR JUDGMENT

1. In these proceedings the mother has sought that her three children attend her graduation ceremony. At that ceremony she understands she will receive an academic prize for the course.  The children are aged between seven and 12.  It seems to me that they could not but benefit, whatever other problems have arisen in the family or for these children, by seeing their mother gaining public acclaim for her success in this aspect of her life.  The father has opposed the children’s attendance.  He says that the reasons are, firstly, that he wants to spend more time with the children, and this would undermine some of his time. Secondly, that the history of the matter is such that he thinks this is part of a number of steps, taken by the mother, to reopen the conflict between him and the mother, over the children.  He says that the mother has already reopened the conflict between himself and the children by using a weak excuse; that is, the divorce between the father’s current wife and the father, and that her application for the children to attend the graduation ceremony is a further step in the increasing of the conflict. 

2. In my view, the father’s refusal is another step which should have not have been taken. Whatever the situation might be about the mother’s reopening of the conflict, it can be said that it is perfectly reasonable and appropriate to seek to have the children attend her graduation ceremony.  The father has provided me with insufficient reason to oppose that.  It must be in the children’s best interests that the children attend.  There is no time, in these proceedings, for further elucidation of the issues between the parties, in relation to the children’s welfare because the ceremony is very soon.  It is not the mother’s fault that this matter has been listed shortly before the ceremony is due to occur. She filed her application on the day after the father refused to allow the children to attend.  It has taken nearly two weeks to have the matter listed before me, in Sydney, even though it is a Newcastle matter.  I now understand that it was not listed in Newcastle because none of the judges in Newcastle could hear the matter.  The judges in Newcastle could not hear the matter because they all know the applicant mother as a prominent member of an association in Newcastle.

3. In all of the circumstances, there can, in my view, be no other order but to permit the children to attend the graduation ceremony.  I shall make orders which are practical to achieve that. 

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate:     

Date:              21 April 2010