Walmsley and Walmsley (No 4)

[2009] FamCA 1294

FAMILY COURT OF AUSTRALIA

WALMSLEY & WALMSLEY (NO. 4) [2009] FamCA 1294

FAMILY LAW – CHILDREN – interim parenting

FAMILY LAW – PROPERTY – interim orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Walmsley

RESPONDENT: Ms Walmsley

INDEPENDENT CHILDREN’S LAWYER: Robert Winter

FILE NUMBER: ADC 728 of 2008

DATE DELIVERED: 19 November 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 19 November 2009

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Winter

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robert Winter - LSC

Orders

1. That in relation to the Application in a Case filed by the husband on 9 October 2009 as follows –

   a.   under the heading ‘children’s issues’ paragraphs 1 to 4 inclusive be dismissed and removed from the active pending cases list;

   b.   under the heading ‘financial issues’ paragraphs 1 and 2 be adjourned for further consideration to 9:30am on 9 December 2009.

2. That in relation to the Response filed by the wife on 2 November 2009 as follows –

   a.   BY CONSENT in relation to children’s issues –

   i.in the event of the husband or his supervisor become ill during access visits with the children, the wife should be contacted immediately so that she can arrange for the children to be picked up as soon as possible and returned to her care;

   ii.in the event of a child or children becoming ill during access visits with the husband, the wife should be contacted immediately so that she can arrange for the child or the children to be picked up as soon as possible and returned to her care;

   iii.that the husband facilitate phone calls between the children and the wife if they become distressed or insistent that they wish to speak to the wife during access visits;

   iv.that the husband be allowed to ring the children on their birthdays and Christmas Day at 10:00am if the husband is not having access;

   v.that the husband have supervised access on 25 December 2009 between 3:00pm and 7:30pm with handover at the C Police Station.

   b.   BY CONSENT in relation to financial issues –

   i.that orders 1, 2, 3, 4 and 5 made by Registrar Brown on 15 September 2008 be hereby dismissed;

   ii.that the husband return to the wife the keys to the H property which the wife was ordered to provide to the husband’s solicitors on 26 November 2008 by Registrar Paxton;

   iii.that the wife be allowed to repair and ‘clean up’ the aforementioned property and attend to re-tenanting it to obtain an income to assist her in paying the expenses on this property such as rates, levies, taxes and mortgage;

   iv.that the husband sign a Bank SA form agreeing to a fixed term of 2 years for the above mentioned property;

   v.that the wife be allowed to dispose of the VR Commodore registered in her name as she sees fit and the nil agreed value be recorded for the purpose of all future property proceedings;

   vi.that the wife be allowed to dispose of the VK Commodore registered in her name as she sees fit and the $100 agreed value be recorded for the purpose of all further property proceedings;

   vii.that the wife be permitted to change her current variable interest rate mortgage to a fixed interest rate immediately.

   c.   Paragraphs 1 and 4 in relation to the children’s issues and paragraph 13 in relation to the financial issues be dismissed and removed from the active pending cases list.

   d.   Further consideration of paragraph 10 be adjourned to 9:30am on 9 December 2009.

3. 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.

4. That further consideration of the Response filed by the husband on 19 November 2009 be adjourned to 9:30am on 9 December 2009.

5. That further consideration of these proceedings generally be adjourned to 9:30am on 9 December 2009.

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 back before me today on an application filed by the husband on 9 October 2009, a response filed by the wife on 2 November 2009, and the application of the wife filed on 2 November 2009. Today the husband has tendered a response to the application in a case.

2. This matter was adjourned from the last occasion generally but in relation to one issue specifically and that was whether the husband, in the adjourned period, would be able to find someone to assist in the supervision of time that he spends with the children.  There was an excellent proposal on the table which would enable the children to enjoy some specific time with their father.  However, there was still a need for someone to be present not to supervise closely, but to just be around and be available if necessary.  Unfortunately, the husband tells me today that he has not been able to find anybody who can act in that capacity.  The wife proposed some persons on the last occasion but I rejected all of those.  They were, as I said on that occasion and I repeat, barrackers and not appropriate persons to be involved in this exercise. 

3. Given that, the issue becomes whether the husband pursues his application to vary the current orders primarily to lift the requirement for supervision.  The Independent Children’s Lawyer has confirmed that he does not support lifting the requirement of supervision, that is his position today, and thus, on that basis, the husband does not pursue any variation to the existing orders.  Thus I can dismiss paragraphs 1 through 4 of the application in a case filed by the husband on 9 October 2009 and I will do that in a moment.

4. In relation to the wife’s response filed on 2 November 2009, she too sought orders varying the existing orders, or adding to the existing orders.  I am pleased to record that the husband agrees to a number of those orders being made.  The wife does not pursue in the circumstances paragraph 1 of her response.  She does pursue paragraph 4.  They are two paragraphs which the husband did not agree with.  I have indicated, and this is with the support of the Independent Children’s Lawyer, that there is no evidence before me which would require the injunction sought in paragraph 4 to be put in place at this point in time.  Thus I propose to dismiss paragraph 4 of that response and obviously paragraph 1 as well because the wife is not pursuing it.  With the other paragraphs, the husband agrees to orders in those terms and I will make those orders in a moment.

5. Turning then to financial issues.  The husband pursues paragraphs 1 and 2 of the orders sought in his application of 9 October.  The wife opposes those orders.  I propose then to adjourn those matters to a further date for hearing.

6. The wife herself seeks orders by way of financial issues in her response.  The husband agrees with all of those orders save and except paragraphs 10 and 13.  With paragraph 13, I dealt with that on the last occasion and indicated that I was not prepared to make the order that the wife sought and I propose to dismiss that paragraph formally today. 

7. With paragraph 10, the wife does pursue that.  The husband though says that he needs some time to work out his position in relation to that and as to whether he can establish that he has actually paid the moneys that the wife says he has not.  He needs a couple of weeks to do that.  Given that I propose to adjourn financial issues to another date.

8. Separate to all that, the wife has filed an application in a case on 2 November 2009 seeking that the husband, in effect, provide further and better discovery.  It was anticipated that the husband would be able to deal with that in the adjourned period.  He says there are documents that he can produce and I understood that that was going to be done on an informal basis, and that today the wife would tell me whether there was still any further documents she sought.  Unfortunately, the husband misunderstood that.  He has not provided that information to the wife.  He prepared some sort of affidavit which he has not got with him today, but the long and the short of it is the husband says he has some further documents, and that the wife can inspect those at her convenience at the offices of his former solicitors, Barnes, Brinsley and Shaw. That is how I propose to deal with that application.  In other words, give the husband a further opportunity to produce those documents and allow the wife to inspect them, and then if the wife says there are still further documents, I will deal with that on the adjourned hearing date.

9. The husband has filed a further response today.  There is no affidavit in support of it.  It is a response in which he seeks orders by way of financial issues.  I propose to adjourn that matter as well.  As I say, there is no affidavit in support of it.  He suggested it was a repeat of what was in his application filed on 9 October 2009.  That is simply not the case, but I received the response. For it to go anywhere though he will need to file an affidavit in support of it. 

10. In terms of the final orders applications, because the parties still have not sorted out and finalised interim issues, I am not in a position to look at listing this matter for trial.  In any event, there is still some time to go before the parties comply with orders that I have made in terms of the filing of affidavit material.  Thus I propose to leave further consideration of the final orders applications until the adjourned hearing date that I will give in a moment to look at and hopefully finalise the interim issues.

I certify that the preceding 10 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 19 November 2009.

Associate