Wenlack and Cimorelli (No 2) - [2019] FamCA 790

FAMILY COURT OF AUSTRALIA

WENLACK & CIMORELLI (NO. 2)

[2019] FamCA 790

FAMILY LAW – CHILDREN – Where the mother seeks to have the order appointing an expert discharged – Where order appointing the expert was made with the consent of the parties – Where order appointing expert not discharged.

APPLICANT:

Mr Wenlack

RESPONDENT:

Ms Cimorelli

INDEPENDENT CHILDREN’S LAWYER:

Ms D Smith

FILE NUMBER:

SYC

2881

2013

DATE DELIVERED:

14 October 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

14 October 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms M Winning

COUNSEL FOR THE RESPONDENT:

Mr G Simpson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Smith

Orders

The mother’s oral Application to discharge Dr Y as the court expert is dismissed.
The assessment interview with Dr Y is to occur in Sydney on 13 November 2019 and the parties are to do all things required of them to attend at their respective appointments and to make the children available at their appointment with Dr Y.
The proceedings are listed for Interim Hearing at 10am on 1 November 2019 in respect to the competing applications for the interim arrangements for the children.
Within 7 days each of the parties are to exchange with one another and the Independent Children’s Lawyer and forward to chambers a Minute of proposed interim Orders.
Each party is also to file a single consolidated affidavit for the purposes of the interim hearing or nominate a single affidavit previously filed in the proceedings by 28 October 2019.
Each of the parties and the Independent Children’s Lawyer are to forward to chambers an outline of case and written submissions by 28 October 2019.
The proceedings are listed for further directions at 9.30am on 16 October 2019 in respect to where the children are to attend school between now and 1 November 2019.

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

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).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 2881 of 2013

Mr Wenlack

Applicant

And

Ms Cimorelli

Respondent

REASONS FOR JUDGMENT

First I will give reasons for decision about the application to discharge of Dr Y because I think that’s a distinctive issue. I do not propose to discharging the order for the appointment of Dr Y for the following reasons:
First, contrary to the way in which this matter has been described on various occasions, the Court did not require the parties to attend on Dr Y in…

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.

Continue reading Wenlack and Cimorelli (No 2)

Details

AGLC: Wenlack and Cimorelli (No 2) [2019] FamCA 790
Case: [2019] FamCA 790
Decision Date: 14 October 2019

CaseChat Overview and Summary

In the matter of *Wenlack and Cimorelli (No 2)*, Hannam J of the Federal Circuit Court of Australia considered an application by the mother to discharge a court-appointed expert, Dr Y. The proceedings concerned interim arrangements for the children, including competing applications for their care and welfare.

The primary legal issue before the court was whether to grant the mother's application to discharge Dr Y as the court expert. The court also had to determine the interim arrangements for the children, including their attendance at appointments with Dr Y and their schooling arrangements pending a further hearing.

Hannam J dismissed the mother's application to discharge Dr Y, finding no grounds to remove the expert. The court then made orders for the assessment interview with Dr Y to proceed in Sydney on 13 November 2019, requiring both parties to cooperate and make the children available. Further directions were given regarding the exchange of proposed interim orders, the filing of consolidated affidavits, and the submission of case outlines and written submissions by a specified date. The proceedings were listed for an interim hearing on 1 November 2019 to address competing applications for interim arrangements, and for further directions on 16 October 2019 concerning the children's schooling.

Orders

Orders of the court

The mother’s oral Application to discharge Dr Y as the court expert is dismissed.

The assessment interview with Dr Y is to occur in Sydney on 13 November 2019 and the parties are to do all things required of them to attend at their respective appointments and to make the children available at their appointment with Dr Y.

The proceedings are listed for Interim Hearing at 10am on 1 November 2019 in respect to the competing applications for the interim arrangements for the children.

Within 7 days each of the parties are to exchange with one another and the Independent Children’s Lawyer and forward to chambers a Minute of proposed interim Orders.

Each party is also to file a single consolidated affidavit for the purposes of the interim hearing or nominate a single affidavit previously filed in the proceedings by 28 October 2019.

Each of the parties and the Independent Children’s Lawyer are to forward to chambers an outline of case and written submissions by 28 October 2019.

The proceedings are listed for further directions at 9.30am on 16 October 2019 in respect to where the children are to attend school between now and 1 November 2019.

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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