Cimorelli & Anor and Wenlack & Anor - [2020] FamCA 635

FAMILY COURT OF AUSTRALIA

CIMORELLI AND ANOR & WENLACK AND ANOR

[2020] FamCA 635

FAMILY LAW – CHILDREN – Interim parenting – Where application for time with the subject children by the maternal grandparents – Where application made in context of long running parenting proceedings between father and mother – Where children live with father – Where mother previously ordered to have supervised time with the children – Where conduct of maternal grandfather of concern – Where risks to children in unsupervised time with maternal grandparents – Where consideration of applicable principles – Where orders made for grandparents to have supervised time and not otherwise.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65C, 65DAA

Aldridge & Keaton [2009] FamCAFC 229; (2009) FLC 93-421
Deiter & Deiter [2011] FamCAFC 82
Donnell & Dovey [2010] FamCAFC 15; (2010) FLC 93-428
Goode and Goode (2006) FLC 93-286
Marvel v Marvel (No. 2) [2010] FamCAFC 101; (2010) 43 Fam LR 348
Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518
Potts & Bims [2007] FamCA 394
SS & AH [2010] FamCAFC 13
Valentine & Lacerra and Anor [2013] FamCAFC 53; (2013) FLC 93-539
Wenlack & Cimorelli [2013] FamCA 654
Wenlack & Cimorelli [2014] FamCA 1054
Wenlack & Cimorelli [2019] FamCA 755
Wenlack & Cimorelli (No. 2) [2019] FamCA 790
Wenlack & Cimorelli (No. 4) [2019] FamCA 854
Yamada & Cain [2013] FamCAFC 64

FIRST APPLICANT:

Mr C Cimorelli

SECOND APPLICANT:

Ms D Cimorelli

FIRST RESPONDENT:

Mr Wenlack

SECOND RESPONDENT:

Ms Cimorelli

INDEPENDENT CHILDREN’S LAWYER:

Ms Smith

FILE NUMBER:

SYC

2881

2013

DATE DELIVERED:

3 August 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

5 June 2020 and by way of written submissions last received on 19 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Mark Gilbert

FIRST RESPONDENT – SELF‑REPRESENTED LITIGANT:

Mr Brian Joseph Wallace

SOLICITOR FOR THE SECOND RESPONDENT:

Allsop Glover Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Domestic Violence Unit

Orders

That pending further order the children D born … 2008, E born … 2009 and F born … 2012 spend supervised time with the maternal grandparents Mr C Cimorelli and Ms D Cimorelli at a children’s contact service or with a community based supervision service as nominated by the Independent Children’s Lawyer for a period of not more than three hours each calendar month commencing August 2020 and such other additional supervised time as may be agreed to by the father and the maternal grandparents in writing with such writing to include SMS or email communication.
That the maternal grandparents pay for the cost of supervision.
The father and maternal grandparents are each forthwith to take all necessary steps to facilitate the children’s time as provided for above including completing the intake procedures for that service.
That the maternal grandparents Mr C and Ms D Cimorelli be and are hereby restrained from approaching or contacting the children in any way…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FamCA 635
Decision Date: 3 August 2020

CaseChat Overview and Summary

In the matter of *Cimorelli & Anor and Wenlack & Anor*, Foster J of the Federal Circuit Court of Australia considered an application concerning the welfare and contact arrangements for three children. The applicants, the maternal grandparents, sought orders for supervised time with their grandchildren. The respondent father opposed this application, and the Independent Children’s Lawyer was involved to represent the children's best interests.

The central legal issues before the Court were whether it was in the best interests of the children for them to spend supervised time with their maternal grandparents, and if so, what conditions and limitations should apply to such contact. The Court also had to consider the appropriate measures to ensure the children's safety and well-being, particularly in light of the circumstances that led to the dispute.

Foster J determined that supervised contact was appropriate, but with significant restrictions. The Court ordered that the children would spend a limited amount of supervised time each month with the maternal grandparents at a nominated contact service, with the grandparents bearing the cost of supervision. Crucially, the maternal grandparents were restrained from approaching or contacting the children outside of these supervised arrangements, and were also prohibited from attending within 200 metres of the children's residence or schools, except with the father's express written consent. The father and maternal grandparents were directed to take all necessary steps to facilitate the supervised contact.

Orders

Orders of the court

That pending further order the children D born … 2008, E born … 2009 and F born … 2012 spend supervised time with the maternal grandparents Mr C Cimorelli and Ms D Cimorelli at a children’s contact service or with a community based supervision service as nominated by the Independent Children’s Lawyer for a period of not more than three hours each calendar month commencing August 2020 and such other additional supervised time as may be agreed to by the father and the maternal grandparents in writing with such writing to include SMS or email communication.

That the maternal grandparents pay for the cost of supervision.

The father and maternal grandparents are each forthwith to take all necessary steps to facilitate the children’s time as provided for above including completing the intake procedures for that service.

That the maternal grandparents Mr C and Ms D Cimorelli be and are hereby restrained from approaching or contacting the children in any way including through a third party save as provided for above and be and are hereby restrained from attending at or within 200 metres of the children’s residence, schools or any place at which the children may attend or be at from time to time save and except with the written consent of the father and upon such conditions as may be imposed by the father with such writing to include SMS or email communication.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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