Malburon & Waldlow

[2013] FamCAFC 191

FAMILY COURT OF AUSTRALIA

MALBURON & WALDLOW [2013] FamCAFC 191

FAMILY LAW – APPEAL – CHILDREN – Appeal from orders that the child live with the respondent father and spend time with the appellant mother to be supervised by the second appellant maternal grandmother – Where the appellants complain the Federal Magistrate did not consider evidence – Where the appellants assert the Federal Magistrate failed to ensure the child had a meaningful relationship with the appellant mother – Where the appellants contend the Federal Magistrate failed to consider factors in s 60CC – The Federal Magistrate did consider the evidence and all relevant matters – Where the appellants asserts they were not afforded procedural fairness – No merit in these complaints.

FAMILY LAW – APPEAL – CHILDREN – LONG-TERM SUPERVISION ORDERS – Where the appellants complain about the indefinite supervision order – Where the Federal Magistrate did not make orders specifying the appellant mother’s time with the child – The Federal Magistrate erred in not making orders specifying times and should not have delegated the decision making to the respondent – Where the Federal Magistrate gave only the respondent liberty to apply in relation to implementation of the orders – The Federal Magistrate erred in not giving all parties liberty to apply in relation to implementation – The Federal Magistrate erred in failing to give the appellant mother liberty to apply for unsupervised time with the child and allowing the respondent to determine if the requirement for supervision would ever be lifted – Appeal allowed in part – Orders varied.

FAMILY LAW – APPEAL – CHILDREN – COSTS – Appeal allowed in part – Directions made for filing of costs submissions.

Family Law Act1975 (Cth) s 60CC
Federal Proceedings (Costs) Act 1981 (Cth)

Champness and Hanson (2009) FLC 93-407
Moose & Moose (2008) FLC 93-375
Slater v Light (2013) 48 Fam LR 573

FIRST APPELLANT: Ms K Malburon

SECOND APPELLANT: Mrs M Malburon

RESPONDENT: Mr Waldlow

INDEPENDENT CHILDREN’S LAWYER: Browns Family Lawyers

FILE NUMBER: PAC 4429 of 2009

APPEAL NUMBER: EA 144 of 2012

DATE DELIVERED: 29 November 2013

PLACE DELIVERED: Perth

PLACE HEARD: Sydney

JUDGMENT OF: Thackray, Ainslie-Wallace and Aldridge JJ

HEARING DATE: 26 July 2013

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 3 October 2012

LOWER COURT MNC: [2012] FMCAfam 1064

REPRESENTATION

COUNSEL FOR THE FIRST APPELLANT: Self represented litigant

COUNSEL FOR THE SECOND APPELLANT: Self represented litigant

COUNSEL FOR THE RESPONDENT: Ms Druitt

SOLICITOR FOR THE RESPONDENT: Matthews Folbigg Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Snelling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Browns Family Lawyers

Orders

1. The appeal be allowed in part.

2. Order 14 made by Federal Magistrate Henderson on 3 October 2012 be varied to provide as follows:

   14.That all parties have liberty to apply in relation to the implementation of these orders and to seek orders:

   (a)      specifying the time the mother is to spend with the child;

   (b)      relating to handover, both as to venue and…