Walmsley and Walmsley (No 2)

[2010] FamCA 367

FAMILY COURT OF AUSTRALIA

WALMSLEY & WALMSLEY (NO. 2) [2010] FamCA 367

FAMILY LAW – CHILDREN – consent orders – consideration of the appropriateness of the orders proposed – orders made

Family Law Act 1975 (Cth) ss 60CC

APPLICANT: Mr Walmsley

RESPONDENT: Ms Walmsley

INDEPENDENT CHILDREN’S LAWYER: Mr R Winter

FILE NUMBER: ADC 728 of 2008

DATE DELIVERED: 3 May 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 3 May 2010

REPRESENTATION

FOR THE APPLICANT: In Person

FOR THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHIDLREN’S LAWYER Mrs Lindsay

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Services Commission of SA

Orders

BY CONSENT IT IS ORDERED THAT

1. The mother have the sole parental responsibility for the children S and E.

2. The children live with the mother.

3. The father spend time with the children fortnightly between 10.00 am until 5.00 pm on Sunday and this to be supervised by an adult and if such supervisor is not available then at a contact centre agreed between the parties and that the father also be allowed to spend supervised time with the children between 10.00 am and 5.00 pm on a further ten [10] days per year during the school holidays at his request.

4. The father is restrained and an injunction is granted restraining the father from assaulting, molesting, abusing, denigrating or approaching the mother or from coming within 500 metres of the mother’s place of abode or place of employment without the mother’s permission.

5. The mother is restrained and an injunction is granted restraining the mother from assaulting, molesting, abusing, denigrating or approaching the father or from coming within 500 metres of the father’s place of abode or place of employment without the father’s permission.

6. Handovers occur at the C Police Station unless otherwise agreed by the parties, or alternatively at the contact centre.

7. The father continue to be permitted to telephone the children at 10.00 am on the day he is ordered to spend time with them if he is not able to see the children that weekend and also on the children’s birthdays.

8. In the event of the father or the supervisor becoming ill or unable to supervise the children while spending time with the father, the mother to be immediately contacted so that she can arrange for the children to be picked up as soon as possible.

9. The mother will use all reasonable efforts to consult with the father as to the issue of education including participation with the parties in family dispute resolution or counselling if required.

10. The mother shall provide the father with 14 days notice in writing to take the children interstate for the purpose of holidays which will provide details of itinerary, destination, contact details and a return date.

11. The father is restrained and an injunction is granted restraining him from lying or sleeping in a bed with the children when they spend time with him.

12. The father is restrained and an injunction is granted restraining him from using physical discipline on the children.

13. The father is permitted to contact the mother by text message to notify if he is spending time with the children or not by 7.00 pm on the Monday preceding the weekend of spending time and to also notify who the supervisor will be and the supervisor’s contact details and to propose any variations to the time or place of handover and that the father does not deviate from this information in his text message.

14. The father is restrained from any further communication or harassment of the mother or her family by text, telephone, email or post unless it is an emergency situation involving the children whilst in his care or to notify that his time with the children is not going ahead.

15. The mother is restrained from any further communication or harassment of the father or his family by text, telephone, email or post unless it is an emergency situation involving the children whilst in her care.

16. The recommendations of the Family Assessment Report by Ms T be adopted, namely that the mother be permitted to obtain a counsellor or psychologist to work regularly with S and that this be extended to include E if the father continues to spend time with them and the mother to bear the full financial costs of this counselling.

17. The father be restrained and an injunction is granted restraining him from drinking alcohol to excess or taking non-prescription drugs while spending time with the children.

18. The parties consent to attend a Family Dispute Resolution centre in relation to any further dispute before making any application to a Court in relation to children’s issue.

19. The appointment of the Independent Children’s Lawyer be discharged.

20. Remove all children’s issues from the active pending list.

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 FOR JUDGMENT

1. This is a complex difficult matter which comes before the Court in relation to the welfare of two young children; S, who was born in July 2002 and E, who was born in February 2004.  The proceedings have been before the Court for a considerable period of time.  A large number of documents have been filed, interim proceedings and orders made, and significant reports directed to the issues of the best interests of the children. 

2. The Court has before it a significant amount of material which primarily deal with the allegations concerning sexual abuse of the children which were raised by the mother and denied by the father.  The matter has been fixed for trial for today to run for 10 days.  The matter had been in the process of being prepared for that trial for some time.  The father filed an application for an adjournment of the trial on a certain basis.  The mother foreshadowed that she would ask the Court to proceed for the trial on an undefended basis.

3. With the assistance of the Independent Children’s Lawyer, the negotiations were carried out briefly before the Court resumed this morning and the parties have now indicated to the Court that they consent to final orders concerning the children. The Independent Children’s Lawyer does not consent to the orders but is not opposing the orders. The Court is required to take into account the various matters in relation to Part VII of the Act and, in particular, the provisions of section 60CC which sets out those matters which need to be considered when determining what is in the best interests of the children.

4. It is proposed in the final orders that the mother have sole parental responsibility for the children, subject to having discussions with the father about certain issues in relation to education and notification in relation to interstate travel.  It has been pointed out the children do not have passports, so the question of overseas travel may be an issue which would need to be dealt with later. I accept the suggestion of the counsel for the Independent Children’s Lawyer and the parties have consented to an addition of an order which would require them to have access to the services of the Dispute Resolution Centre before bringing any further proceedings in relation to children’s issues. 

5. The matter is complex and difficult, bearing in mind the allegations in relation to child sexual abuse and the strong denial of the same.  The orders that the parties are asking the Court to make provide for the children to live with the mother and for the father to spend time with the children each fortnight between 10.00 am until 5.00 pm on the Sunday, provided the same is supervised by an adult;  that is an adult whose name and contact details will be provided to the mother prior to the supervision commencing. 

6. In all of the circumstances of the matter, it is significant that the parties come to an agreement by way of resolving the matter without the emotional and psychological damage which might occur in relation to any ongoing dispute. 

7. I take into account the Independent Children’s Lawyer’s concern that it leaves the significant issue unresolved, however having seen the material and taken into account the father’s strong position that the sexual abuse did not occur and the mother’s concern about the allegations made by the children, I am not convinced that is in the best interests of the children that there be proceedings between the parties in this Court wherein the detail of those allegations are further ventilated and argued.  I am not satisfied that it would necessarily mean a resolution of the allegations which would satisfy both of the parties in this particular case. 

8. I am satisfied that the consent orders the parties are now seeking are appropriate orders in all of the circumstances and I will make those final orders, including the discharge of the Independent Children’s Lawyer.  That removes all children’s matters from the pending list, save and except the question of costs raised by the Independent Children’s Lawyer which is connected to financial issues. 

9. In relation to the application for costs by the Independent Children’s Lawyer, that application is by consent adjourned until the conclusion of the property settlement proceedings between the parties.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  14 May 2010