Walmsley and Walmsley

[2009] FamCA 407

FAMILY COURT OF AUSTRALIA

WALMSLEY & WALMSLEY [2009] FamCA 407

FAMILY LAW – CHILDREN – Interim – With whom a child spends time

APPLICANT: Mr Walmsley

RESPONDENT: Ms Walmsley

FILE NUMBER: ADC 728 of 2008

DATE DELIVERED: 20 February 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 20 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Berman

SOLICITOR FOR THE APPLICANT: Barnes Brinsley Shaw Lawyers

COUNSEL FOR THE RESPONDENT: Mr McQuade

SOLICITOR FOR THE RESPONDENT: Christopher Ganzis and Co

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mrs Lindsay

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Robert Winter

Orders

1. That paragraph 2(a)(ii) of the order made by Kelly FM on 28 May 2008 be varied by adding at the end the words “or 1:00pm Saturday to 5:00pm Sunday as the husband may elect”.

2. That paragraph 1 of the orders made by Bell J on 3 October 2008 be varied by adding the words “as varied by the order contained in paragraph 2 hereof” after the words “of the orders made by Federal Magistrate Kelly on 28 May 2008” and before the words “such proportion thereof as the father is able to secure a supervisor for (in accordance with paragraph 3 of the orders of 28 May 2008) subject to”.

3. By consent that the wife do facilitate telephone contact between the husband and the children at 10:00am each Saturday if no physical contact takes place on that weekend.

4. That paragraph 1 of the orders made by Strickland J on 19 December 2008 be varied by deleting the words “SAVE AND EXCEPT for the father to advise by text message only before 7:00pm each Wednesday if he is taking the time provided for in the orders, or what proportion of the ordered time he seeks and which supervisor shall be attending”, and replacing those words with “SAVE AND EXCEPT for the husband to communicate with the wife via text message to advise if he is not taking any time with the children as provided for in any court order and to exchange proposals in relation to any school holiday time with the children if he is able to take leave from his employment and Christmas Day time with the children”.

5. By consent that hereinafter all handovers of the children to facilitate the husband’s time with the children in accordance with the current orders do take place at the C Police Station in lieu of the W Police Station.

6. That the Application in a Case filed by the wife on 17 February 2009 be dismissed and removed from the active pending cases list.

7. That paragraphs 2, 3 and 7 of the Response filed by the husband on 19 December 2008 be dismissed and removed from the active pending cases list.

8. That the Amended Response filed by the husband on 22 January 2009 and the Amended Amended Response filed by the husband on 2 February 2009 be dismissed and removed from the active pending cases list.

9. That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 728 of 2008

MR WALMSLEY

Applicant

And

MS WALMSLEY

Respondent

EX TEMPORE REASONS

1. This matter first came before me on 19 December 2008, when I dismissed the Amended Application in a Case filed by the mother on 17 December 2008.  I dismissed it not on the basis of lack of merit, but because all issues arising in that Application were in fact able to be dealt with and were the subject of orders by consent that I made on that day.

2. Importantly I made an order that further consideration of paragraphs 2, 3 and 7 of the response filed by the father on 19 December be adjourned to 27 January for mention.  The reason for that was that those matters could not be agreed, but it was hoped that Ms T’s report would be available by then and that might throw some light on the issues and allow the parties to reach agreement about them.  In fact, that did not happen, unfortunately.  Ms T’s report was not available by 27 January 2009.  It now is and I will come to that in a moment.

3. On 27 January 2009 it was foreshadowed that the husband would file and serve a Further Amended Response, and I made an order about that.  I also made an order about the wife filing and serving a reply to that proposed Further Amended Response and I set the matter down for hearing today with the intention of disposing of all outstanding interim issues.  I cannot recall the specifics of it, but I note also on that day I dismissed an Application Alleging Contravention filed by the wife on 18 September 2008.

4. Since 27 January, there has been activity in the file.  The husband had in fact filed an Amended Response on 22 January 2009 but he has filed a Further Amended Response on 2 February 2009.  This is the Response that is before the court today.  The husband has also filed an Application Alleging Contravention, which is not before the court today, and I do not propose to deal with it in any way.

5. The wife did not file a Reply to the Response, but on 17 February 2009 she did file an Application in a Case which really does more than I assume any reply would have done, in that the order the wife sought was that the current order providing for the children to spend time with their father be suspended.  That application is also before me today.

6. Fortuitously, and I suppose fortunately in terms of how this matter has progressed today, Ms T’s report has now become available, and it was filed by the independent children's lawyer on 19 February 2009.  I have had the opportunity overnight to read her report, as well as read all the applications and affidavits in support of those applications that have been filed and that are before me today.

7. Dealing firstly with the Application in a Case filed by the mother, the basis of that application does not arise from anything that was in issue on 19 December 2008 or 27 January 2009 or arising specifically from the Further Amended Response of the father, but it arises from an investigation which is apparently being undertaken by police in relation to allegations of child sexual abuse at a particular organisation which the children attended at some stage in 2008.

8. The mother was concerned about that investigation, given she says the husband knowing of and associating with or being involved with the operator of that particular organisation. She is concerned that the father would compromise the investigation by speaking to the children about it.  She says there is an indication of that already from the fact that the father - as he says himself in his own documents - once he heard of this investigation, he took it upon himself to speak to the operator of that organisation.

9. The mother's concerns were also heightened by the fact that she was made aware that a letter from a State Government Department had been sent about this issue prior to Christmas.  It was not sent to her, but she contends that it was sent to the father and he didn’t say anything to the wife about it.  That raises her suspicions as to what the father will do and whether he will in fact say something to the children and prejudice the investigation.

10. In the father's documents that I have read, he denies receiving any letter from the Government Department, and the mother has taken the only course that is open to her really in that regard, and she has now subpoenaed the records of the Department.  I am not sure when that subpoena is returnable for, but it has not come to light just yet.

11. That issue is simply at the level of allegations.  The wife alleges the husband received a letter; the husband says he did not. 

12. It is for those reasons, which I have summarised, that the mother brought this application. It is opposed by the father and it is also opposed by the Independent Children's Lawyer. I have already indicated my position in relation to it, namely, that I am not satisfied of the need for the order sought, which is suspension of the time the children spend with their father.  There is no evidentiary basis upon which I could be satisfied that the father has or will or intends to say anything to the children about this or involve them in it, such that the investigations might be prejudiced.  Indeed, in his affidavit he says as much.  He explains his contact with the operator of the organisation as an inquiry as to what was happening.  Prima facie that is not an unnatural reaction, but in my view the mother has taken an unreasonable position in relation to this. 

13. A more reasoned response from the mother if she was really concerned about this would have been to seek, for example, an injunction restraining the father from saying anything to the children about this matter.  She did not do that, and she chose to seek the order that she did.

14. As I commented earlier, with these two parties and the history of this matter and the toing and froing and the extensive affidavits and the allegations and counter‑allegations, and the conflict which has arisen, there is frankly no necessary basis to think that the father is going to say anything to the children about this any more than the mother might.  Does that mean that I put the children in the care of a third party while this investigation is going on?  Obviously not.  For those reasons, I propose to dismiss the Application.

15. That then takes me to the Further Amended Response filed by the father on 2 February 2009.  Paragraph 1 I do not need to consider, because I have dismissed the wife's Amended Application in a Case.  However paragraphs 2-7 inclusive I will need to deal with.

16. In effect, what the father is seeking in this Further Amended Response is to discharge the current orders providing for the children to spend time with him under supervision, and put in place orders which would provide for alternate weekend time and school holiday time and for that time to be unsupervised.

17. There is a supporting affidavit that he has filed, which is an extremely brief affidavit.  He says, “In support of my response, I seek leave to rely on all my past affidavits filed herein in relation to children's matters, and an affidavit of [Ms D] sworn on 23 January 2009 and filed on 30 January 2009.”

18. Now, I find that an unacceptable approach.  It cannot be all his past affidavits that are relevant.  It cannot be all of the paragraphs of all of his previous affidavits are relevant.  Thus I find this an unacceptable and lazy way of presenting the father's case on an interim application.

19. Fortunately, I do not need to spend the hours that it would take to try and find in the many affidavits that have been filed, what might be relevant to the response that the father has now brought.  I say that because Ms T in her report is quite specific in the recommendation that she makes.  Namely, she recommends that the current arrangements continue pending a hearing in this matter by way of a trial when the allegations and counter‑allegations can be properly aired and properly tested given the seriousness of them; and they involve allegations of sexual abuse which have been investigated, but of course that does not mean they will not be the subject of evidence at the trial, and I expect that they will be.

20. Ms T is taking a cautious approach in that regard, but it is in the context of this case shortly having a listing before a registrar when a trial date will be given, and in the context of the current orders effectively being in place since May 2008.  I know that they were varied by Bell J in October, but really the substance of the orders goes back to May 2008.  As I understand it, there is no event, no incident, nothing, that can be pointed to which has led to or required a change of the interim order.

21. Ms T gives the father credit in her report for the way he has conducted himself in relation to the order of May 2008, which requires supervision, yet out of the blue it seems - and, as I say, without any obvious justification - the father says we should now move to unsupervised time on an alternate weekend basis.

22. I cannot fathom that at all, but in any event in a situation like this where there are affidavits containing allegations and counter-allegations, some of which I have read, some of which I have not, I am not in a position to make any finding on the many factual disputes which are presented in those affidavits.

23. In an interim hearing like this I look to some independent position, and Ms T provides that independent position.  Of course her report does not decide the issue ultimately, that is for me, but at the final hearing.

24. In any event, Ms T’s recommendation is supported by the Independent Children's Lawyer, and at the end of the day I am pleased to record that the father, too, has now fallen in with that recommendation.  Thus, that has obviated the need for me to trawl through the father's affidavits to try and find what is relevant, and then hear a lengthy argument today and put the parties to unnecessary expense. 

25. However, there are some orders that the father still pursues, and I need to now address those.  Firstly, he seeks an order, and it is contained in paragraph 2 of the previously amended response, that the order Kelly FM made on 28 May 2008 be varied by adding at the end thereof the words "or 1pm Saturday to 5 pm Sunday, as the husband may elect."  The order of Kelly FM provides for the time on each weekend to be from 10:00am Saturday to 2:00pm Saturday. 

26. Mr McQuade appears today for the mother, but the mother could not be present due to health reasons.  Mr McQuade's instructions are that if the mother's application in a case was not successful, then the current orders should continue in their entirety save and except in respect of two issues - and I will mention them now – firstly the mother agrees to the change of the place of handover, such that handover takes place at the C Police Station in lieu of the W Police Station, and secondly the mother would agree to telephone contact between the father and the children at 10:00am each Saturday if no physical contact takes place on that particular weekend.

27. The reason for the change to the order is simply put and hopefully briefly put.  Because of the need for the father to find a supervisor, he wants as much flexibility as he can to allow for that so that every effort can be made to ensure that he does in fact have the time that he is permitted to have with the children.

28. The husband’s counsel, Mr Berman, refers me to Ms T’s report where she says quite clearly that the children have a good relationship with their father and they want to spend time with him.

29. That change is also supported by the independent children's lawyer and in my view it is not an unreasonable request.

30. The next order sought by the father is in paragraph 4 of the previous Amended Response, where he seeks that paragraph 1(a) of the orders of 3 October 2008 be varied by changing the time from 5:00pm to 7:00pm.  The father is obliged to text the mother pursuant to that order by 5:00pm on the Wednesday advising of, in effect, whether he has got a supervisor for the coming weekend and whether it is for all of the time or a proportion of it.  The reason for the requested change is again to provide more flexibility to the father in making these arrangements.  It gives him an extra couple of hours to find a supervisor if he has not been able to by 5:00pm.

31. Again, the Independent Children's Lawyer supports that change.  It is opposed by the mother, but in my view in the interests of the children and given the background, I propose to make that change.

32. Next I move to paragraph 7 of the previous amended response.  This is where the issue of telephone communication is raised.  As I say, there is agreement by the mother about telephone communication at 10:00am each Saturday if there is no physical contact.  In addition though, the father seeks that there be telephone contact at 7:00pm each week, on Wednesday, and that is regardless of whether physical contact takes place or not.

33. The father also seeks telephone communication on the children's birthdays, father's birthday, Father's Day, Christmas Day and New Year's Day if no physical contact takes place on those occasions.  It seems though, looking at those dates, that there is no pressing need to address that issue.  It may be resolved in the fullness of time or if there is still a need to press it, then obviously it is easily raised at an appropriate time closer to the event.  Thus I do not propose to deal with anything other than whether the husband can speak to the children on each Wednesday at 7:00pm.  The reason for this is, as I understand it, nothing more and nothing less than the father wanting to increase the occasions that he has communication with his children.  It is obviously not tied in with any ability to obtain a supervisor or not, and it is not tied in with whether he does have physical contact or not.

34. The Independent Children's Lawyer supports the change but it is again opposed by the mother.  In my view there are not the same reasons to introduce this change as there are with the other issues, and thus I do not propose to make the order sought.

35. Then I come to paragraph 3 of the amended response, which is where the father seeks a change to the consent order made by me on 19 December 2008.

36. The father has to text the mother by 7:00pm each Wednesday if he will be taking the time the following weekend, and advise what proportion he seeks and which supervisor will be attending.  Mr Berman says - and I assume this is in an affidavit - that there have been difficulties with that, the particular difficulty being that the mother has not acknowledged the text message, and thus it has been left up in the air as to whether in fact his message has been received by the mother, and if it has, whether the mother has any issues about the time that he is seeking.

37. To obviate that problem, the husband proposes that in effect it be turned around such that he only be required to communicate via text message if he is not taking all of the time with the children as provided for in the court order.

38. That is a change opposed by the wife.  It is supported though by the Independent Children's Lawyer.  My view about it is that if there are problems with it, this is a case where every problem should be overcome if possible, and I consider that the father’s proposal is a reasonable one.  Thus I propose to make that order.

39. Finally I confirm that there is agreement about the handover being at C Police Station.

I certify that the preceding 39 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 20 February 2009.

Associate