Malberd & Malberd & Anor (No 2)

[2010] FamCA 586

FAMILY COURT OF AUSTRALIA

MALBERD & MALBERD AND ANOR (NO. 2) [2010] FamCA 586

FAMILY LAW – CONTRAVENTION – defective application – application dismissed
FAMILY LAW – CHILDREN – With whom a child spends time – Interim application for suspension of time between the father and the children – allegations of physical abuse – application granted

APPLICANT: Ms Malberd

RESPONDENT: Mr Malberd

SECOND RESPONDENT: Ms Ariste

FILE NUMBER: NCC 280 of 2010

DATE DELIVERED: 14 July 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie - Wallace J

HEARING DATE: 13 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Rees SC

SOLICITOR FOR THE APPLICANT: York Family Law

THE RESPONDENT: Father in person

SOLICITOR FOR THE SECOND RESPONDENT: Ms Kensell, agent for Boyd Olsen Lawyers

Orders

1. Pending further order, the father’s time with the children as provided for in the consent orders made 15^th May 2009 be suspended.

2. The Contravention application filed on 21 June 2010 by the father be dismissed.

3. The parties forthwith make arrangements for further appointments with Dr M to discuss the present allegations and issues and to provide him with the affidavits filed in relation to them and the mother’s solicitor provide him with a copy of the reasons for decision.

4. That pursuant to Section 68L of the Family Law Act 1975 (Cth) an Independent Children’s Lawyer be appointed for the children J (female) born … November 1997; T (female) born … March 2000; and W (male) born … September 2002 (“the children”).

5. Legal Aid New South Wales is requested to make arrangements as soon as practicable for appropriate representation for the children.

6. That the Court is to advise the Senior Solicitor, Family Law Litigation Section, Legal Aid NSW of this order.

7. That each party make available to Legal Aid NSW copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.

8. I note that Ms Jane Costigan, solicitor for Legal Aid NSW, was previously appointed as the Independent Children’s Lawyer in this matter and it is recommended that she be re-appointed.

9. The parties have liberty to apply to the Docket Registrar on seven days notice.

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

Respondent

REASONS FOR JUDGMENT

1. Ms Malberd (“the mother”) applies for orders suspending time spent between the father, Mr Malberd (“the father”) and the three children of the marriage; J (born in November 1997), T (born in March 2000) and W (born in September 2002).  The father applies for the mother to be dealt with for contravening parenting orders.

Background

1. The parties separated in January 2005 and in November 2006 by agreement between themselves, the children lived with each parent on alternate weeks.  After separation, the father…