Walmsley and Walmsley (No 5)

[2009] FamCA 1334

FAMILY COURT OF AUSTRALIA

WALMSLEY & WALMSLEY (NO. 5) [2009] FamCA 1334

FAMILY LAW – PROPERTY – Procedural orders in relation to discovery – preparation of affidavits of evidence in chief

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 October 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 19 October 2009

REPRESENTATION

THE APPLICANT: In person

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 leave is granted to the husband nunc pro tunc to file his affidavit of evidence in chief on 9 October 2009.

2. That leave is granted to the wife nunc pro tunc to file the affidavit of Ms K on 16 October 2009.

3. That the time for the husband to file and serve the affidavit of evidence in chief of his mother be extended to 4:00pm on 23 November 2009.

4. That the time for the wife to file and serve her affidavit of evidence in chief in relation to all issues in dispute and the affidavit of evidence in chief of her mother in relation to all issues in dispute be extended to 4:00pm on 23 November 2009.

5. That further consideration of the Application in a Case filed by the husband on 9 October 2009 be adjourned to 2:15pm on 6 November 2009.

6. That by 4:00pm on 3 November 2009 the wife file and serve a Response to the said Application.

7. That by 4:00pm on 2 November 2009 the wife file and serve an Application in a Case seeking orders in relation to discovery and production of documents.

8. That by 4:00pm on 4 November 2009 the husband file and serve a Response to the said Application.

9. That the said Application and Response be listed for hearing at 2:15pm on 6 November 2009.

10. That the Application in a Case filed by the wife on 19 October 2009 be dismissed and removed from the active pending cases 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

1. This was a continuation hearing which was set on 24 August 2009 when I made a number of orders in relation to the parties filing their affidavits of evidence in chief, not only of themselves, but also of their witnesses, and the expectation certainly for my part was that my order would be complied with and I would be in a position to finalise the affidavit material which was to be relied on by each party and fix a date for the conclusion hearing in this matter.  Unfortunately, as has become typical with this case, my orders have not been complied with and this case is nowhere near being ready for a conclusion hearing.

2. I am not going to repeat what I have said today about that, but I have repeated remarks that I have said on earlier occasions.  Those remarks seem to continue to fall on deaf ears, and in that regard I have warned the parties that the time is coming when, if my orders are not complied with, their applications will be simply struck out, and indeed, I have given them that warning in relation to the series of orders that I am going to make today. 

3. Looking at the husband’s position, he was to file and service his affidavit of evidence in chief and the affidavit of evidence in chief of his mother.  He has filed his affidavit.  That was filed on 9 October 2009, four days late and without leave.  There is also no sign of the affidavit of his mother.  He tells me today that it has been prepared.  His mother has been away for two weeks and she has the affidavit with her, he says, and she has not been able to sign it, he says.  He asked initially for an extension of time to file that affidavit until next week, ultimately though he seeks the same time as I am going to give the wife to file her affidavits, and I will come to her situation in a moment, namely five weeks.  I will only do that because of course I cannot come back to this matter until the wife has filed her affidavit.  Thus the husband has fallen on his feet in a sense in that regard, and he can have no excuse for his mother’s affidavit not being filed in five weeks.

4. In terms of his affidavit I will not say very much, and I will temper my remarks.  His affidavit is of little assistance to me in hearing this case.  It is the second attempt that he has had to file an affidavit of evidence in chief.  I uplifted the first affidavit, but it seems that he has taken little notice of the remarks that I made on that occasion, and what I recall and would consider as helpful remarks in terms of how he should prepare his affidavit.  His affidavit has come back in the format of referring to paragraphs of a series of earlier affidavits filed, setting out in full the paragraph that he wants to answer and then giving a brief response to it.  Given that description it is perfectly obvious, I suggest, why I say that that affidavit is going to be of little assistance to me in understanding and appreciating the husband’s case and the factual material on which he wants to rely in seeking the orders that he does.

5. However, he has had his opportunity, indeed he has had two opportunities, and I am not prepared to give him another chance to file a further affidavit.  The affidavit that is now filed will be his affidavit of evidence in chief.  Of course it does contain factual material, but it is just difficult to find, difficult to put into context, and difficult to put in some sort of chronological order. That is a particular difficulty which I will have in this case but I will overcome it and I will obviously look at the factual material that is contained in that affidavit and consider it and take it into account in reaching my final decision.

6. In relation to the wife, my order of 24 August 2009 required her to file her affidavit of evidence in chief, the affidavit of evidence in chief of her mother,  and the affidavit of evidence in chief of Ms K by 5 October 2009.  That order has not been complied with.  The mother has filed an affidavit of Ms K on 16 October 2009.  She had prepared but not filed an application in the case seeking an extension of time to file the affidavit material.  That was at least a step in the right direction, and in the circumstances I propose to extend the time for the mother to file her affidavit material.  She has handed up an affidavit which explains her reasons for not filing her affidavit material, and they are understandable and acceptable.  They relate primarily to difficulties that she has experienced with her health.  The frustrating thing about it though is that what the mother should have done is immediately she realised that this was a problem, made an application.  I could have vacated today’s hearing and not wasted the taxpayer’s money in having two hearings.  Anyway, I cannot go back.  As I say, I accept the mother’s reasons and understand them, but it is a tragedy that this was not all brought up earlier.  In any event, the mother needs time to file her affidavits, or the balance of her affidavits and she seeks five weeks and I propose to give her that time.

7. One further aspect of that is that in previous hearings I was concerned at the number of witnesses that the wife was proposing to call and I allowed her to provide statements of those proposed witnesses and once I had those statements I indicated I would then assess whether I would allow all those witnesses to be called.  There was a time frame for that to be done.  The mother failed to comply with that, but again I assume her reasons for that are the same as I have adverted to before, and which as I say, I understand and accept.  In any event, today I have before me three statements from three proposed witnesses, namely Mr S, Mr M and Ms N.  On the information contained in these statements I am not prepared to allow the mother to call both Mr M and Mr S.  She has to make a choice between the two of them.  With Ms N, I am prepared to allow an affidavit of hers to be filed.  What I have done though is within the limitations of me not being able to provide legal advice to the wife, I have indicated in general terms serious areas of concern that I have about the statements that have been presented and indicated, again in general terms, that the affidavit that the wife now files needs to only contain admissible material, because if the affidavits were simply a repeat of the statements then very little of the affidavit material would end up being admissible.  In any event that is for the wife to work out herself and what it means is she is not out of the woods yet, and this applies obviously to anyone who files an affidavit, but on the day when that affidavit is to be considered, I will address the admissibility of it in any event.

8. In relation to Mr M, the wife says that she still wants to call him but in relation to specific issues to do with the property settlement dispute.  I have indicated I am not prepared to allow an affidavit, but I have given the wife some light at the end of the tunnel in that if she wants to prepare an affidavit of Mr M on the one topic that she wishes to pursue with him, then she can do so, and at an appropriate time she can seek leave to file that affidavit and I will look at it then.  But that is a matter for her.  As I say, currently with the statement that he has presented through her, I am not prepared to allow any affidavit to be filed by him in these proceedings.

9. That deals with the affidavit material.  Separate to that there is an issue of discovery.  The wife says that the husband has failed to make proper discovery, but the husband says otherwise.  The wife now has to take out an application about that and she seeks two weeks to be able to do that. 

10. Next, and almost finally, the husband has filed an application on 9 October 2009 supported by an affidavit seeking a variation of the existing interim orders in relation to the children.  He says that he posted that application and affidavit to the wife, but the wife has not received it.  The husband is not in a position to prove service, and in any event I would not have had time to deal with it today.  Thus I propose to adjourn that application, give the wife an opportunity to file responding documents and list that matter together with the issue of discovery in two weeks or so.

11. Finally, Mrs Lindsay, who is counsel for the Independent Children’s Lawyer has brought me up to date with the position of witnesses and particularly for the benefit of the parties indicating who Legal Services Commission is prepared to call and fund.  Outside of that the parties will need to call witnesses that they want to rely on for the purpose of these proceedings.  Both parties assure me that they are aware of the position of the Legal Services Commission and they will proceed accordingly.  I do not need to delve into that.

I certify that the preceding 11 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 19 October 2009.

Associate