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…

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: [2014] FamCA 1054
Decision Date: 16 September 2014

CaseChat Overview and Summary

In the matter of *Wenlack and Cimorelli*, heard by Johnston J, the applicant father sought orders concerning his children. The wife provided undertakings to the court regarding medical treatment for the children and their schooling.

The court was required to determine the terms of the orders to be made, including the dismissal of the father's application, undertakings from the wife concerning medical treatment for the children, and arrangements for the enrolment of one of the children at a specific school.

Johnston J made orders reflecting the agreement of the parties. The father's application was dismissed. The wife undertook not to take the children to a particular doctor for medical treatment without admissions. Furthermore, she undertook to provide the husband with reasonable written notice, details, and reasons for any proposed medical reviews, examinations, or testing for the children, and to obtain his written consent, unless it was a medical emergency. The court also ordered that the child [E] would attend [L] Public School commencing in Kindergarten in 2015, with both parents required to take all necessary steps to facilitate this enrolment.

Orders

Orders of the court

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:

3.1 Provide 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;

3.2 Provide with such notice the details of any proposed reviews, examinations or testing to be undertaken by any of the children;

3.3 Provide reasons as to why she believes such review, examinations or testing should be carried out; and

3.4 Obtain 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

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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