Walmsley and Walmsley (No 2)

[2009] FamCA 1198

FAMILY COURT OF AUSTRALIA

WALMSLEY & WALMSLEY (NO. 2) [2009] FamCA 1198

FAMILY LAW – PRACTICE AND PROCEDURE – proceedings for property settlement and parenting orders – continuation hearing – case management

APPLICANT: Mr Walmsley

RESPONDENT: Ms Walmsley

INDEPENDENT CHILDREN’S LAWYER: Robert Winter

FILE NUMBER: ADC 728 of 2008

DATE DELIVERED: 24 August 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 24 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mrs Lindsay

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Robert Winter (LSC)

Orders

1. That the affidavits of evidence in chief of the husband and his mother filed on 14 August 2009 be uplifted and returned to the husband forthwith.

2. That by 4:00pm on 5 October 2009 the husband file and serve his affidavit of evidence in chief in relation to all issues in dispute and the affidavit of evidence in chief of his mother.

3. That the husband have leave nunc pro tunc to file his Amended Application for Final Orders filed on 14 August 2009.

4. That within 7 days of the date of this order the husband forward a letter to the wife identifying the documents that he seeks to be disclosed and produced by her in relation to item 11 on the Balance Sheet filed on 13 May 2009.

5. That within 7 days following receipt by her of the said letter from the husband the wife discover and produce to the husband the documents identified.

6. That by 4:00pm on 5 October 2009 the wife file and serve her affidavit of evidence in chief in relation to all issues in dispute, the affidavit of evidence in chief of her mother in relation to all issues in dispute, and the affidavit of evidence in chief of Ms K in relation to the children’s issues.

7. That by 4:00pm on 5 October 2009 the wife provide to my associate with copies to the Independent Children’s Lawyer and to the husband, statements setting out the proposed evidence of her witnesses Mr M, Ms N and Mr S.

8. That this case resume part-heard at 9:00am on 19 October 2009 with a time estimate of one hour.

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 is before me on a continuation hearing, having been adjourned to today from 16 June 2009.  On that day I conducted the first day of trial in relation to the parenting issues.  There are also disputed property proceedings, but there is no consent to those proceedings being dealt with under Division 12A and that situation has not changed.  Thus I just addressed case management issues in relation to those proceedings on that day.

2. I will deal with the property settlement issue first.  I will not repeat what I said on 16 June about that, but at the end of the day I left that matter in abeyance because there was a suggestion that the matter could resolve if something occurred in relation to certain pets.  The wife was given a telephone number by the husband of a person who apparently had some involvement with that and who can indicate whether it is possible to get the pets back.  However, I am told today that nothing has happened about that.  The wife has attempted to speak to the person involved and left messages, but that person has not responded.  We now know that that person is, indeed, a legal practitioner. 

3. Today I am told for the first time by the wife that prior to 16 June she did in fact speak to this person and this person indicated she was not prepared to discuss the matter with the wife.  Frankly, if I had been told that on the last occasion I would not have left the issue of property settlement in abeyance because it has turned out to be, and understandably now for the reason that the wife has explained to me, a fruitless exercise.  Thus I am not going to spend any more time on that.  The parties have not been able to agree the issue of property settlement and the matter has to proceed.

4. As I identified on the last occasion there was only one issue arising out of the balance sheet prepared by the parties and that relates to the question of an alleged add-back, namely item 11 in the balance sheet.  What has to happen about that is the husband wants production of certain documents.  He is going to set that out in a letter to the wife and the wife says that on the assumption she has the documents she will be able to provide copies of what is requested.  She knows that she has the bank statements, for example, which identify the payments which were made in relation to an Egyptian holiday which is the subject of this particular add-back.  Thus that needs to be attended to and I will make an order about that. 

5. Affidavits also need to be prepared in relation to the issue of property settlement.  In that regard I have addressed the witnesses that each party seeks to call.  The husband, obviously, will give evidence.  He wants to call his mother to give evidence of her observations of the work that he says he undertook at the various properties of the parties and I am prepared to permit that.  The mother will need to file an affidavit of course.  There are no other witnesses the husband proposes in relation to the issue of property settlement. 

6. For the mother's part she proposes a number of witnesses.  They are set out in the document headed, “Proposed Witnesses for Trial”, filed on 13 May 2009.  That is the document that I took the mother through on the last occasion and I indicated that I was not prepared to allow all of those witnesses to be called, nor for some of those witnesses to give the proposed evidence on the issue of property settlement.  I will come back to what needs to be done about that when I deal with the issue of the parenting orders, but perhaps just to make one comment at this point, the wife will need to present a statement of each witness incorporating what she says they can say about property settlement. 

7. The final thing about property settlement is the need for updated financial statements, but I am going to leave that for now because, given the way this matter has been conducted by the parties and the issues involved and the delays that have arisen and the failure to comply with orders in terms of filing documents in time, this matter simply will not be heard this year and thus there will be plenty of time to file updated financial statements.

8. Now, turning to the parenting issues, I made certain orders about that on the last occasion.  I made an order that the husband file and serve his affidavit of evidence‑in‑chief in relation to those issues and the affidavit of evidence‑in‑chief of his mother.  The husband has filed those documents.  I will not repeat, though, what I have said to the husband about that.  I note that they were four days late, but that does not matter now, given what I am doing with those affidavits.  The long and the short of it is those affidavits are completely inappropriate and I have uplifted them and returned them to the husband.  He has to prepare substitute affidavits, both of himself and of his mother, and those affidavits now need to include the evidence the husband seeks to rely upon in relation to property settlement.  With his mother that will mean including in her affidavit evidence on the topic that I have referred to earlier that I am permitting the father to present evidence from her about.

9. Still dealing with the husband, I ordered him to file and serve an amended application for final orders.  He did that, albeit it was four days late.  I have taken him to paragraphs 8 and 11 in that document and indicated that I am not prepared to make the orders that he seeks, and the husband will take that on board in finalising his affidavit.

10. Turning to the orders that I made in relation to the wife, I made an order that she file and serve her affidavit of evidence‑in‑chief in relation to the children's issues and the affidavit of the evidence‑in‑chief of the mother.  She has not complied with that order and her excuse is she has been very busy.  She has been diligently attending to this, she says, but it has all become too much.  She has not been able to get things done on time.  My response to that is, that is all very well but what the mother should have done is filed an application seeking an extension of time rather than leaving it until today.  That may have led to an administrative adjournment of today if she had done that, and I would not have been left effectively wasting a substantial amount of the time that has been spent today.  In any event, I said earlier that the wife would have to file an application now, but I am going to change that and, given that this case is now going to be delayed for other reasons, I will note that the wife makes an oral application for an extension of time to file those affidavits, particularly because those affidavits will now need to contain the evidence in relation to property settlement.  The wife asks for six weeks to file those documents, and I will provide for that. 

11. In addition, I ordered that the wife file and serve an amended response.  She has done that and I have had a quick look at it.  I have raised with the wife paragraph 13 and indicated that that is not a final order that I would be prepared to make and she needs to sort out that issue well before the hearing takes place.  The wife has conceded that that is what I told her on the last occasion but for some reason she has persisted in seeking a final order in terms of paragraph 13.  It bemuses me as to why that would be the case but the wife is on notice about that.  I will not be making a final order in terms of paragraph 13 and it needs to be sorted out well before the hearing.

12. Separate to that, I required the wife to present statements of those witnesses that she proposes to call - beyond herself, obviously, and her mother - in relation to parenting issues.  The witnesses identified in this category are Ms K, Mr M, Ms N and Mr S.  However, the wife has not complied with that requirement, save and except she has been able to present a statement from Ms K.  I have taken the wife through that statement and indicated that there are many parts of the proposed evidence from this witness which, in my view, would be inadmissible for various reasons.  I will not repeat them now.  The wife has made a note of those.  What she now needs to do is to prepare and file an affidavit of Ms K taking them into account.

13. In relation to the other witnesses, though, as I say the wife has not complied with the requirement for statements.  She seeks to still rely on those witnesses and she still proposes to present statements of their evidence to me.  As an aside, I stress the wife needs to provide copies of any statements to the Independent Children's Lawyer and to the husband, not just to my associate.  In any event, I am not prepared to allow any other witnesses to be called until and unless I receive statements of their proposed evidence.  I will then make a decision about whether those witnesses will be able to be called, both in relation to parenting issues and financial issues.  The wife has asked for six weeks to attend to all the matters that she now has to do. The husband, likewise, can have six weeks to attend to the preparation and filing of substitute affidavits and the other issues.

14. On the last occasion I requested Mrs Lindsay to make inquiries of her instructor about a couple of issues.  One was whether it was necessary to call both the authors of the CPS report.  Mrs Lindsay tells me it is and so that will obviously need to be arranged in due course.  The Independent Children's Lawyer has also put the parties on notice in relation to costs and has sought that money be paid into the Legal Services Commission's trust account in relation to a number of witnesses.  I understand that has not occurred and Mrs Lindsay has indicated that her instructor may need to make an application about that.

15. To return to the husband for a moment, he has foreshadowed that he may seek a variation of the existing interim orders.  I have explained to him that he can do that by filing an application in a case and a supporting affidavit. 

16. The summary then is that I am allowing a further six weeks for relevant documents to be prepared. 

I certify that the preceding 16 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 24 August 2009.

Associate