Walmsley and Walmsley (No 3)

[2009] FamCA 1209

FAMILY COURT OF AUSTRALIA

WALMSLEY & WALMSLEY (NO. 3) [2009] FamCA 1209

FAMILY LAW – TRIAL – Division 12A – s69ZT(3)
FAMILY LAW – CHILDREN – mother alleges sexual abuse of children by father – CPS investigation
FAMILY LAW – PROPERTY – dispute re contributions – husband not considered s75(2) factors – significant issue is pets

Family Law Act 1975 (Cth) s 69ZT(3)
Family Law Act 1975 (Cth) s 75(2)

APPLICANT: Mr Walmsley

RESPONDENT: Ms Walmsley

INDEPENDENT CHILDREN’S LAWYER: Robert Winter

FILE NUMBER: ADC 728 of 2008

DATE DELIVERED: 16 June 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 16 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: In person

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mrs Lindsay

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Robert Winter

Orders

1. That the wife file and serve her affidavit of evidence in chief in relation to the children’s issues and the affidavit of evidence in chief of her mother by 4:00pm on 10 August 2009.

2. That the husband file and serve his affidavit of evidence in chief in relation to the children’s issues and the affidavit of evidence in chief of his mother by 4:00pm on 10 August 2009.

3. That the husband file and serve an Amended Application for Final Orders setting out in detail the final orders that he seeks by way of children’s issues and property settlement by 4:00pm on 10 August 2009.

4. That the wife file and serve an Amended Response detailing the final orders that she seeks in relation to children’s issues and property settlement by 4:00pm on 10 August 2009.

5. That pursuant to s 69ZT(3) of the Family Law Act 1975 being satisfied that the circumstances of this case are exceptional and in particular because of the nature of the issues the subject of this dispute, the rules of evidence referred to in sub-s 69ZT(1) are to apply in this case.

6. That this case be adjourned part-heard to 9:00am on 24 August 2009 with a time estimate of 1 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 was listed today for the first day of trial. It involves both parenting and property settlement issues. The parenting issues are proceeding under Division 12A of the Family Law Act, but the property proceedings are not.  Both parties are acting in person.  There is an Independent Children’s Lawyer who was represented today by Mrs Lindsay of counsel. 

2. I will not repeat all that I have said today, but I will say this, given my perception of the respective attitudes of the parties, I have not spent much time undertaking the usual process that is applied pursuant to Division 12A. I have devoted most of the time in addressing the preparation of this matter for a conclusion hearing.

3. Can I deal firstly with the issue of property settlement because it is simpler.  The parties have filed financial questionnaires, and financial statements. There is also a balance sheet and I have taken the parties through that document. The only issue unresolved is the question of an add‑back, and that is item 11 in the balance sheet.  That issue needs to be resolved by evidence. 

4. There is also a dispute as to the respective contributions of the parties, the husband saying it should be 75%/25% in favour of the wife and the wife saying it should be 95%/5% in her favour.

5. The husband has not turned his mind to the s 75(2) factors, but the wife says there should be an adjustment in her favour of two per cent, taking the overall result on her case to a percentage division of 97%/3% in her favour.  In terms of how that translates into figures, the wife tells me that that would result in a payment to the husband of $20,000 on the basis that she receives the real estate and each party retains what they separately have.  On the other hand the husband’s division of 75%/25%, would entail a payment of $90,000 or thereabouts, but that is a rough figure and I treat it as such.  It is not that far off the mark though because the husband, in his orders sought, seeks a payment of $110,000. 

6. However, the real issue which is preventing settlement of this case is an issue relating to certain pets.  I will not dwell on it, but the long and the short of it is the pets have been given away by the husband and he says he cannot get them back.  The wife does not accept that and wants the pets back and she is even prepared to look at increasing the amount that she pays the husband by way of property settlement if that can be brought about.  Thus, I have invited the parties to concentrate on that issue first before anything more is done in relation to the property settlement issue.

7. What is going to be done is the husband has given the name and number of the person who apparently has told him that he cannot get the pets back, so that the wife can pursue it herself and ascertain the position herself.  What comes of that, I do not know, but if the pets can be returned, I understand the husband has no issue with that, but that would then lead, as I understand it, to a settlement of the property settlement issue because the husband has indicated that he would be prepared to consider and look at accepting the proposal of the wife which she would be prepared to make in the event that she gets the pets back. 

8. Turning to the children’s issues, that is a very live and concerning issue.  The parties are in heated dispute about it and one of the primary issues is the mother’s belief that the father has sexually abused or behaved sexually inappropriately towards one or other of the children.  There has been a CPS investigation which has concluded abuse not confirmed.  The mother, though, does not accept that conclusion and seeks to challenge that finding.  Understandably, that issue needs to be resolved by the presentation of evidence and a decision being made by the Court. Further that issue, being as significant as it is, is preventing the parties moving on with the interim arrangements which involve supervision and also prevents the parties from realistically talking settlement of the issues relating to the children. 

9. I have addressed with the parties the orders that they seek and I am going to require that each of them file amended documents setting out in detail the orders that they seek.  I have also addressed the witnesses that each party seeks to call.  With the father, he is happy to only call his mother as a witness, in addition to himself.  The wife, though, seeks to call a number of witnesses.  I am not satisfied that all of those witnesses are necessary in this case, but I am allowing the wife to obtain statements from those witnesses and those statements can be provided to the other side and the Independent Children’s Lawyer and to the Court and at a future directions hearing, I will determine on the basis of those statements whether those witnesses can be called in this case.  I am allowing, though, the mother to call her mother in any event.

10. With the Independent Children’s Lawyer, it has been identified that certain expert witnesses will be called and they are Ms T, and the two psychiatrists, Dr B and Dr V.  There is a query, though, in relation to the CPS report.  It is signed by Ms g and Ms F.  It is unclear as to whether both of them had input to the report:  certainly Ms G did, but the question is whether Ms G did.  The Independent Children’s Lawyer will look into that and whatever the position is, it will either be Ms G called or both of them called as witnesses.

I certify that the preceding 10 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 16 June 2009.

Associate