Waldlow and Malburon and Anor

[2013] FamCA 575

FAMILY COURT OF AUSTRALIA

WALDLOW & MALBURON & ANOR [2013] FamCA 575

FAMILY LAW – CHILDREN – Where the Full Court was hearing the matter on appeal – Where it became apparent during the course of argument in the hearing of the appeal that orders sought by the maternal grandmother for time that she should spend with the child on her own had not been considered by the Federal Magistrate – Where the orders sought by the maternal grandmother had not been opposed by the child’s father – Where the Full Court was presented with consent orders signed by the father, the maternal grandmother and the independent child’s lawyer which proposed orders for time that the maternal grandmother would spend with the child separate to those which were the subject of the appeal – Where the Full Court was not able to make such orders as it does not have original jurisdiction – Where the court was reconstituted with a Judge sitting at First Instance for the purpose of making the consent orders.

Family Law Act 1975 (Cth)

APPLICANT: Mr Waldlow

FIRST RESPONDENT: Ms Malburon

SECOND RESPONDENT: Ms B Malburon

INDEPENDENT CHILDREN’S LAWYER: Browns Family Lawyers

FILE NUMBER: PAC 4429 of 2009

DATE DELIVERED: 26 July 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 26 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Druitt
SOLICITOR FOR THE APPLICANT:	Matthews Folbigg Pty Ltd

THE FIRST RESPONDENT IN PERSON: Ms Malburon

THE SECOND RESPONDENT IN PERSON: Ms B Malburon

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

Orders

1. That leave is granted to Ms B Malburon to make an oral application for time to be spent with C (the child) born … 2009.

2. That all of the requirements of the Rules that would prevent a Judge of the Family Court, sitting at first instance, dealing with the matter are dispensed forthwith.

3. That all requirements of personal service of the maternal grandmother’s oral application are dispensed with.

4. That orders are made by consent pursuant to the document entitled “By Consent” dated 26 July 2013 signed by the father, the maternal grandmother and the independent children’s lawyer and contained herein:

   “By consent 26 July 2013

   a.That the grandmother, Ms B Malburon, spend time with the child on one Saturday each month between 9am and 5pm with changeover at Hungry Jacks Suburb D unless otherwise agreed.  Failing agreement as to a Saturday in each month then it should be the last Saturday commencing 27 July 2013.

   b.Such time to not be in the presence of Ms Malburon.”

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 4429 of 2009

Mr Waldlow

Applicant

And

Ms Malburon

First Respondent

And

Ms B Malburon

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. This morning the Full Court of the Family Court of Australia heard an Appeal by Ms Malburon (“the mother”) and Ms B Malburon (“the maternal grandmother”) against orders made in relation to C born in 2009 (“the child”).  Those first instance proceedings were conducted in what was then the Federal Magistrates Court.

3. It became apparent during the course of argument in the hearing of the appeal that orders sought by the maternal grandmother for time that she should spend with the child on her own had not been considered by the Federal Magistrate, as she then was.  Those orders had not been opposed by the child’s father.  It seems that the consideration of those orders was overlooked by the then Federal Magistrate.

4. The Full Court was presented with some consent orders signed by the father, the maternal grandmother and the independent child’s lawyer which proposed orders for time that the maternal grandmother would spend with the child separate to those which were the subject of the appeal.

5. The mother did not sign those orders but indicated to the Full Court that she did not oppose those orders being made.

6. The Full Court does not have original jurisdiction to make such orders and the court has been reconstituted with me sitting as First Instance Judge in order that the consent orders previously referred to be made.

Conclusion

1. Consequently, I make the orders set out herein.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 26 July 2013.

Associate:

Date:  30 July 2013