WALMSLEY & WALMSLEY

[2011] FamCA 396

FAMILY COURT OF AUSTRALIA

WALMSLEY & WALMSLEY [2011] FamCA 396

FAMILY LAW - ORDERS – where the wife seeks enforcement of previous final orders – where the husband seeks to vary or discharge those orders – where the Court held that the husband had not established a basis upon which any variation or discharge of the orders would be warranted – husband’s application dismissed.

FAMILY LAW - ORDERS – where the husband seeks variation of final orders – where the Court held that there was no basis upon which the proceedings for property settlement should be reopened – application dismissed.

Family Law Act 1975 (Cth) s 79A

APPLICANT: Ms Walmsley

RESPONDENT: Mr Walmsley

FILE NUMBER: ADC 728 of 2008

DATE DELIVERED: 19 May 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 19 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: In person

Orders

1. The DV tapes are forthwith this morning handed to the wife in open Court.

2. The wife acknowledges receipt of the same.

3. All outstanding Applications are dismissed and the proceedings are 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

Ms Walmsley

Applicant

And

Mr Walmsley

Respondent

EX-TEMPORE EASONS FOR JUDGMENT

1. In November 2010 I made final property settlement orders.  The orders were made on the basis that the matter proceeded undefended.  One of the orders that I made on that occasion, which was part of the full and final settlement of the parties’ claims for property settlement, was paragraph 6 that:

   “The husband to provide the wife with all DV tapes showing vision of the wife and the children and their pets from 2000 onwards or alternatively provide full copies of these tapes of family life to the wife.” 

1. That order has not been obeyed.

2. In December 2010 the wife filed an Application in a Case in which she sought the enforcement of the orders made including paragraph 6 of that order. 

3. Affidavit material was filed by the wife and the husband.  On the first occasion the husband asserted that he could not find the tapes.  The matter was then adjourned and a further order made by me by way of enforcement  that the husband take all steps to locate the tapes and to search all areas in his possession for the tapes and file an affidavit indicating the addresses and locations which he searched in an attempt to locate the goods.  The matter was then adjourned to me this morning. 

4. Since then, the husband has filed further material including an affidavit in which he says he has located the tapes.  This morning before the Court I called upon him to produce the tapes.  They were delivered up and now are in the possession of the Court Officer.

5. The order of November 2010 made by me was a final order. It gave the husband the option to provide the original tapes to the wife or to provide full copies of the tapes. The husband says he cannot afford to provide copies of the tapes and has produced the tapes to the Court this morning. The material provided by the husband in relation to the tapes and the response to the Application in a Case and his Application in a Case, all fall within the category of an attempt by the husband to vary or discharge the orders that were made by way of final orders in November 2010. The material supplied by the husband, when considered in light of the background of this material, does not establish a basis upon which any variation or discharge of the order pursuant to section 79A or any other provisions of the Family Law Act 1975 (Cth) (“the Act”) would require.

6. I am not satisfied that the material provided by the husband indicates any basis upon which the final order for property settlement should be varied and do not propose to vary the order made by me on 19 November 2010. 

7. The original Application in a Case filed by the wife in December 2010 also sought enforcement orders including orders in relation to signing of transfers.  That matter has been dealt with. 

8. The original Application in a Case simply asks for the respondent to supply the DV tapes in accordance with my order and the Response to that Application in a Case filed by the husband on 27 January 2011 seeks dismissal of those matters. 

9. However, there is now before the Court the further proceedings filed since then, both the Application in a Case filed by the wife and by the husband.

10. The response to an Application in a Case filed on 4 May 2011 by the husband sets out a large number of orders that he seeks and, in particular, that paragraph 6 of the order of 19 November 2010 be hereby dismissed.  That, of course, is an order that cannot be made.  The order at paragraph 6 of 19 November 2010 was made by way of final order for a property settlement and, as previously indicated, the husband has not established any basis upon which the final order should be varied or discharged.  The fact that he was dissatisfied with that order and would like another order made is not a basis upon which to bring about an alteration of a final order.

11. In the Response to an Application in a Case, the husband sets out orders that he seeks, in particular to place conditions upon the wife’s use of the DVD video tapes.  He further seeks other orders in relation to a website and other material in the possession or control of the wife.  There is no basis upon which the Family Court of Australia should be seized of those matters.  The property settlement proceedings have been finalised.  There is no basis upon which in this Response to an Application in a Case the Court should reopen the property settlement proceedings between the husband and wife which were finalised in November 2010, nor is it clear in any event that this Court would have the appropriate jurisdiction to deal with matters in relation to copyright and internet matters which are not associated with ongoing outstanding property settlement proceedings

12. The further Application in a Case filed by the wife on 12 May 2011 (being document 165) again seeks orders that the husband hand over the original digital video tapes and that if the husband refuses to hand them over that a warrant issue and that the husband be found guilty and penalised for his lack of compliance by being ordered to pay the sum of $1000. 

13. Some of those orders sought are, in fact, a repetition of the original orders sought by the wife for enforcement but clearly relate to my subsequent order asking the wife to clarify what orders she was seeking in relation to the issue of the warrant. 

14. The tapes are now in Court.  I propose to order that the tapes be delivered up to the wife.  That will bring about a situation where the orders of 19 November 2010 are completed.  If the husband provides appropriate money to the wife, she will be in a position to consider whether copies can be made available to him.  But that is not an order.  I am not varying the order that I have made on 19 November 2010. 

15. In relation to any further order by way of penalty to the husband for his failure to comply,  I note that he will now have to await the goodwill of the wife in relation to her providing at his cost any further copies of those tapes and that will be a significant factor to be borne in mind when considering any further punishment.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 19 May 2011.

Associate: 

Date:  2 June 2011