Cimorelli & Wenlack

Case [2020] FamCAFC 58

FAMILY COURT OF AUSTRALIA

CIMORELLI & WENLACK [2020] FamCAFC 58
FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from interim parenting orders providing for the father to have sole parental responsibility for the children and for them to live with him – Where the primary judge ordered that the children spend supervised time with the mother – Where the grounds of appeal are premised on the primary judge making erroneous findings and attributing weight to untested expert evidence – Where the appeal is resisted by the father and the Independent Children’s Lawyer – Where the appealed orders were premised on the provisional finding that the mother posed a risk of harm to the children – Where the primary judge did not make any error of fact or law – Where the appeal lacks merit – Appeal dismissed – Costs applications made by the father and the Independent Children’s Lawyer are reserved for determination in chambers.

Family Law Act 1975 (Cth) ss 60B, 60CC, 60CG, 65DAC

Family Law Rules 2004 (Cth) r 5.10
Cimorelli & Wenlack (No. 2) [2019] FamCAFC 255
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
M v M (1988) 166 CLR 69; [1988] HCA 68
Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100
APPELLANT: Ms Cimorelli
RESPONDENT: Mr Wenlack
INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW
FILE NUMBER: SYC 2881 of 2013
APPEAL NUMBER: EAA 135 of 2019
DATE DELIVERED: 23 March 2020
PLACE DELIVERED: Newcastle
PLACE HEARD: Sydney
JUDGMENT OF: Ainslie-Wallace, Kent & Austin JJ
HEARING DATE: 6 March 2020
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 20 November 2019
LOWER COURT MNC: [2019] FamCA 854

REPRESENTATION

COUNSEL FOR THE APPELLANT: Dr Birch SC
SOLICITOR FOR THE APPELLANT: Minors Family Law
COUNSEL FOR THE RESPONDENT: Mr Cummings SC
SOLICITOR FOR THE RESPONDENT: Barkus Doolan Family Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Eldershaw
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

  1. The appeal is dismissed.

  2. The costs applications in the appeal made by the respondent and the Independent Children’s Lawyer against the appellant are reserved for determination in chambers, for which purpose:

    (a)The appellant and the respondent shall each file and serve within 14 days an affidavit or sworn financial statement providing full particulars of that party’s current financial circumstances;

    (b)The respondent and the Independent Children’s Lawyer shall file and serve submissions upon which they rely to prosecute their costs applications within 14 days after the filing of financial statements.

    (c)The appellant shall file and serve within a further 14 days thereafter  submissions upon which she relies to resist the costs applications; and

    (d)The respondent and the Independent Children’s Lawyer shall file and serve within a further 7 days thereafter any submissions in reply.

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

IT IS…

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AGLC
Cimorelli & Wenlack [2020] FamCAFC 58
Case
[2020] FamCAFC 58
Decision Date

CaseChat Overview and Summary

The case of Cimorelli & Wenlack was heard in the Family Court of Australia, where the primary dispute involved the mother's handling of her children's allegations against their father. The children had made various serious allegations against their father, including claims of physical abuse and monitoring through electronic devices. The mother's actions, or lack thereof, in response to these allegations were under scrutiny, specifically her failure to challenge or reassure the children regarding the credibility of their claims. The court had to determine whether the mother's inaction contributed to the children's belief that their father posed a danger to them.

The legal issues before the court included whether the mother's failure to correct her children's false beliefs about their father perpetuated the children's resistance to spending time with him and whether this amounted to a form of neglect or failure to protect. The court also needed to assess the impact of the mother's referral of the children to a service that presumed the children had been traumatised or abused, which may have influenced the children's perceptions.

The court found that the mother's awareness of the children's false beliefs and her failure to challenge these beliefs directly contributed to the children's deteriorating relationship with their father. The court concluded that the mother's actions, or lack thereof, were a significant factor in the children's resistance to spending time with their father. The appeal was dismissed, and the matter of costs was reserved for determination in chambers, with specific directions given for financial statements and submissions on costs.

Orders

Orders of the court

1.

The appeal is dismissed.

2.

The costs applications in the appeal made by the respondent and the Independent Children’s Lawyer against the appellant are reserved for determination in chambers, for which purpose:

(a) The appellant and the respondent shall each file and serve within 14 days an affidavit or sworn financial statement providing full particulars of that party’s current financial circumstances;

(b) The respondent and the Independent Children’s Lawyer shall file and serve submissions upon which they rely to prosecute their costs applications within 14 days after the filing of financial statements.

(c) The appellant shall file and serve within a further 14 days thereafter submissions upon which she relies to resist the costs applications; and

(d) The respondent and the Independent Children’s Lawyer shall file and serve within a further 7 days thereafter any submissions in reply.

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

Background

Background to the litigation

The findings of the primary judge which are the subject of these two challenges were expressed in the following terms:98.It seems likely to me on the undisputed facts that the mother was aware of the emergence of the children’s complaints over the months (and years in the case of the fractured wrist) prior to March 2019 about the father’s alleged conduct and their emerging and developing beliefs that he was dangerous and that they were not safe in his care. It also seems likely that the mother was aware that there was no factual foundation for those beliefs. Further, I accept the submission of the ICL that the mother’s failure to test the reality of the children’s beliefs in this regard is highly relevant.99.…The mother did not however reassure [the middle] child or challenge the more unusual explanation that he had started to express from around February 2019 of being deliberately injured by the father…100.The mother also did not test the reality of the particularly bizarre allegations said to have been made by the children to her as early as around April 2019 that the father was tracking and administering shocks to them through a device which has also been subsequently found unsurprisingly to have no foundation in reality.101.These foregoing matters must be considered in the context of the mother having referred the children at the same time to an agency which was providing services on the basis that the children had been traumatised or abused (implicitly at the hands of the father). I am of the view that when this context is considered real concerns arise about the role of the mother in the children coming to form the view in the first few months of 2019 that the father was dangerous and posed a threat to them.…111.Of particular concern in this regard are the allegations of the father connecting an electronic device to the children’s neck for the purpose of monitoring and harming them about which the mother seems to have been aware for some months. Rather than challenge the validity of such a claim or reassure them the mother appears to have encouraged another person to report this allegation. Although further interviews by authorities have only on occasions produced more incriminating statements about the father the authorities have not confirmed that he has perpetrated any physical harm.(Emphasis added) Those findings were all available on the evidence before the primary judge. That the evidence was not tested in cross-examination is not to the point. The findings about the false allegations made against the father, the children’s false belief in them, and the mother’s failure to disabuse them of such false beliefs are all entirely consistent with the mother’s own evidence and independent records. While the mother might not have actively inculcated the children with the false beliefs, her knowledge that their beliefs were false and her consequent deliberate failure to correct them was directly responsible for the perpetuation of their false beliefs. It was the children’s false beliefs about the danger posed to them by the father which caused their relationships with him to deteriorate and for them to resist spending time with him.Ground 3(ii)

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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