Wenlack and Cimorelli - [2014] FamCA 1054

FAMILY COURT OF AUSTRALIA

WENLACK & CIMORELLI

[2014] FamCA 1054

FAMILY LAW – CHILDREN – Interim parenting – Where the father seeks to vary a longstanding parenting arrangement – Where the children primarily live with the mother – Where the father seeks that the Court make interim orders that the children primarily live with the father and spend time with the mother – Where the father relies on the recommendation of the single expert – Where the single expert says that there are psychological risks for the children if they remain in the mother’s household – Where the single expert’s report has not been tested – Where the Court is not persuaded on an interim basis that the best interests of the children would be served by the orders as sought by the father – Application dismissed.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Wenlack

RESPONDENT:

Ms Cimorelli

FILE NUMBER:

SYC

2881

2013

DATE DELIVERED:

16 September 2014

DATE ORDERS MADE:

17 September 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

16 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Levy

SOLICITOR FOR THE APPLICANT:

Barkus Doolan

COUNSEL FOR THE RESPONDENT:

Mr Batey

SOLICITOR FOR THE RESPONDENT:

Kathryn Renshall

Orders

That orders are made in accordance with the Minute of Orders filed in Court today signed by Johnston J and placed with the Court papers as set out hereunder:-

1.That the Application in a Case filed by the Applicant Father on 16 September 2014 be dismissed.
2.That without admissions the Wife undertakes to the Court that she shall not take the children, [D] born … 2008; [E] born … 2009 and [F] born … 2012 ("the children") to Dr [S] for the purposes of medical treatment, reviews and examinations.
3.That without admissions the Wife undertakes to the Court that if she believes the children need to be taken for medical reviews, examinations or testing (unless in the event of a medical emergency) the Wife shall first:
3.1Provide the husband with reasonable notice in writing (including SMS text message) beforehand of her intention to take the children for any such review, examination or testing;
3.2Provide with such notice the details of any proposed reviews, examinations or testing to be undertaken by any of the children;
3.3Provide reasons as to why she believes such review, examinations or testing should be carried out; and
3.4Obtain the Husband's consent in writing (including SMS text message).

4.That the child [E] born … 2009 shall attend [L] Public School commencing in Kindergarten in 2015 and the Husband and the Wife shall forthwith do all acts and things and sign all documents necessary to enrol [E] at [L] Public School commencing in Kindergarten 2015 and shall join any such application to be made so as to secure [E's] enrolment at that school and it is noted that this may include an application to the Department of Education.
5.That without admissions the Husband and the Wife shall be and hereby are restrained from denigrating the other party or any member of the other party's family within the presence and/ or hearing of the children, or any of them.
6.That without admissions the Husband and the Wife shall be and hereby are restrained from questioning the children about the other party in any manner whatsoever.
7.That the Husband and the Wife shall continue to engage in counselling with Mr [O], in accordance with the recommendations of Mr [O], in order to assist the parents and the children in implementing these Orders.
8.That pending further Order, Orders 2(a), (b) and (c)of the Orders made by the Court on 4 September 2013 shall be varied such that the children shall spend time with the father as follows:
8.1For a period of four weeks as follows:
8.1.1 In weeks one and three:
(a)From after school or day care until 6.30p.m. on Wednesday;
(b)From after school or day care until 6.30p.m. on Friday;

8.1.2 In weeks two and four:
(a)From after school or day care until 6.30p.m. on Wednesday;
(b)From after school or day care on Friday until 4.00p.m. on Saturday;

8.2From the conclusion of the four week period referred to in Order 8.1 and thereafter, as follows:
8.2.1In week one and each alternate week thereafter:
(a)From after school or day care until 6.30p.m. on Wednesday commencing on 15 October 2014;
(b)From after school or day care until 6.30p.m. on Friday;

8.2.2In week two and each alternate week thereafter:
(a)From after school or day care until 6.30p.m. on Wednesday commencing on 22 October 2014;
(b)From after school or day care on Friday until 4.00p.m. on Sunday.

9.That the Wife shall be and hereby is permitted to release a copy of the reports prepared by Dr [R] in these proceedings to Dr [N], Psychiatrist.
10.That the proceedings be listed for final hearing for five (5) days commencing 2 March 2015.
11.That pursuant to section 68L of the Family Law Act 1975 an Independent Children's Lawyer be appointed.
12.That the Husband and the Wife file and serve all Affidavits upon which they seek to rely by no later than 19 November 2014.
13.That the matter be listed for a readiness check before his Honour Justice Johnston at 10.00a.m. on 24 November 2014.
14.That on or before 19 November 2014 the parties do all acts and things necessary to cause an updated valuation report to be prepared by Ms [W] of [P Firm] in respect of the property situate at and known as [V] Road, [Suburb Z].

IN CHAMBERS:

That pursuant to r 2.03(2)(b) of the Family Law (Fee) Regulation 2012:

2.1The father pay half of the setting-down fee ($403), and half of the hearing fee for each of days two ($403), three ($403), four ($403) and five ($403);

2.2The mother pay half of the setting-down fee ($402), and half of the hearing fee for each of days two ($402), three ($402), four ($402) and five ($402).

That pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym WENLACK & CIMORELLI has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2881 of 2013

Mr Wenlack

Applicant

And

Ms Cimorelli

Respondent

REASONS FOR JUDGMENT

This is an application by Mr Wenlack, to whom for convenience I shall refer as “the father”, for variation of a longstanding arrangement for parenting of the children, D, who was born in 2008, E, who was born in 2009, and F, who was born in 2012. The children’s mother is Ms Cimorelli (“the mother”).
The father seeks, in essence that, notwithstanding the fact that these children have always lived with their mother, this Court in a circumscribed hearing, make interim orders which would bring about a change in their primary parenting arrangement. This would be that between now and when this Court is able to hear the substantive proceedings between the parents, the children would live with their father and spend time with their mother in accordance with what is specified in the father’s application in a case filed in Court today.
This application comes fast on the heel of a report by Dr R, who was appointed as single expert in the proceedings. That report being dated 4 September 2014 was released by me a matter of days ago. And, in particular, learned counsel for the father seizes upon the first recommendation of Dr R. This is that the children be placed into the primary care of their father as Dr R believes that he is the more capable of the parents and should take over the residential care of the children.
And then Dr R, in recommendation 2 recommends that there be a guardian ad litem appointed to act for the mother based on the fact that she has continued to mistreat the child D unwittingly.
Dr R does not believe that the mother is capable of acting in her own best interests and to handle her own affairs due to her dependent personality disorder, her enmeshment with her own family and if she were to continue to perpetrate institutional investigations of the children.
This is a very complicated case with a history of longstanding litigation between the parents. Dr R, in discussion about possible outcomes says at page 29 of his report that:
Should the children remain in the care of the mother and her family and the mother’s anxiety continues to drive her relentless interrogation and questioning of the children and if repeated investigations occur, I believe that it’s highly likely that eventually statements will be made by one or more of the children and that authorities will be so concerned that the relationship with the father will break down.
It is submitted that the other children are also at risk in the mother’s household, as set out in Dr R’s report, that this Court should act immediately to remove them from that arrangement and place them with their father. In support of this is said to be the fact that even since Dr R interviewed the children and their parents, there has been a further report to the Department of Family and Community Services and there has been further action taken by the mother in respect of the children’s schooling, there having been disagreement between the parents about what the children’s school arrangements ought to be.
It is submitted that Dr R said that the mother has a longstanding belief that one or more of the children has been sexually abused. In those circumstances, the position has been that there has been a multiplicity of notifications to the Department of Family and Community Services that the child D has been interviewed by the Joint Investigative Response Team and that has been something which has been unpleasant and not to her advantage. It is submitted that on the basis of these risks as identified by Dr R, the situation is so precarious and so full of risk for these children that the Court should act immediately to remove them from their mother’s care.
It is further submitted that it cannot be contended that there is any risk to the children with their father, but that the mother’s enmeshment with other members of her household is such that there has been ongoing questioning of the children about circumstances when they have spent time with their father. It is submitted that such behaviour could be psychologically harmful in Dr R’s opinion and therefore the children’s circumstances ought to be changed. This would be something which would be positively to their benefit.
It is further submitted that Dr R said that the mother’s capacity to parent these children is compromised by some deficiencies or complexities in her personality. It is submitted that the mother’s attitude is such that she has not always been able to put the children’s needs ahead of her own and that in all the circumstances as described by Dr R, the children’s best interests would be served by their immediate removal from their mother’s household and primary care and placement with their father.
The first knowledge which the mother had of this application was apparently at the end of yesterday or perhaps even after business hours last evening. The first time the mother has seen the application was today.
Amongst the orders which the father is seeking in his application is an order to restrain the children’s mother from taking the children to Dr S, for the purpose of medical treatment, reviews and examinations. The father also seeks an order to the effect that in the event that the mother wished to take any of the children for medical reviews, examinations or testing, unless in the event of a medical emergency, she would first have to provide the husband with reasonable notice in writing beforehand of her intention to subject the children to any such medical review, examination or testing; provide notice of the details of the review, examination or testing to be undertaken and to provide reasons about why such reviews, examinations and/or testing should be carried out and, significantly, obtain the husband’s written consent in writing including by SMS text message to such a course. Those orders comprised paragraphs 1 and 2 of the application.
At the outset of the immediate proceedings, learned counsel for the children’s mother indicated that the mother would be prepared to give on a without admissions basis, undertakings in the terms of those paragraphs in their entirety.
At some urging from me, learned counsel for the mother also sought instructions from his client about whether between now and when the substantive hearing would be listed or commenced, she would agree to increase the children’s time with their father. Under the current arrangement, the children have been seeing their father three times a week in daytime only and each Sunday from 8.30 am to 4.00 pm.
The mother instructed her counsel to inform the Court that she would be prepared to increase the time so that the children would be able to spend some overnight time with their father on the basis that during the first month, the children would go to their father from Friday after school until 4.00 pm Saturday. After a month, in addition to the Wednesdays and Fridays after school, the children would go and be cared for by their father each alternate week from after school Friday until 4.00 pm on the following Sunday.
It is clearly the case that Dr R’s report raises many issues including some mental health issues which he attributes to the children’s mother. It is true that the report raises some real concerns and includes the recommendation that the children be placed in the primary care of their father. Of course, that would be a very serious step for this Court to take. There are cases where, upon the Court receiving a report from an expert, the situation facing the children can be so serious as to require the Court to take immediate action to turn around longstanding parenting arrangements. In the present case, it seems to me that that’s not an appropriate course.
The report by Dr R needs to be tested. In my view, it would be in the children’s interests for the Court to make such an important decision, and a decision which would involve such considerable change for these children, in the light of all the relevant evidence that the parents and others would put before the Court and for there to be an appropriate opportunity for a proper testing of that evidence.
Dr R has said that there are psychological risks for these children in the event that they are to remain in their mother’s household. As I say, that has not been tested but, clearly, one must give weight to what Dr R is saying about that matter. But it must also be the case that in the event that the children were removed from this longstanding arrangement, there would be some psychological consequences for them in respect of such a removal. Those are matters about which very careful consideration would need to be given. I am not persuaded on the basis of the material at this point and also on the basis of the undertakings that the mother is prepared to give the Court, that at this point these children are in a position of unacceptable risk in her household.
It might turn out to be the case that the Court is persuaded to that position in the fullness of time. In all the circumstances, I am not persuaded that the best interests of the children at this point would be served by the orders as sought by the father.
Accordingly, I propose to dismiss the amended application in a case.

I certify that the preceding twenty (20) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 16 September 2014.

Associate:

Date: 24 November 2014