Wenlack and Cimorelli (No 2) - [2013] FamCA 654

FAMILY COURT OF AUSTRALIA

WENLACK & CIMORELLI (NO 2)

[2013] FamCA 654

FAMILY LAW – CHILDREN – Interim Parenting – Where at issue is the time that the children spend with the father – Where the parties are in dispute about the time the father had spent with the children prior to separation – Where the mother asserted that, by reason of the time the father had spent apart from the family the father did not have a sufficiently close relationship with the children or the parenting skills to justify or permit the children spending more time with him – Where it is not appropriate on an interim hearing to make final findings of fact, particularly where it is likely that issues of credit may arise – Consideration of the best interests of the child – Where it is determined that the children spend some extended time with the father than they presently do – Whether the children should spend overnight time with the father – Where the extended time the children are to spend with the father does not include overnight night time – Where, on the evidence before the court, the issue of overnight time is deferred for later consideration by the parties and the court, if necessary..

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

APPLICANT:

Mr Wenlack

RESPONDENT:

Ms Cimorelli

FILE NUMBER:

SYC

2881

2013

DATE DELIVERED:

16 August 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

16 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Richardson SC
SOLICITOR FOR THE APPLICANT:	Barkus Doolan Family Lawyers
COUNSEL FOR THE RESPONDENT:	Ms Clifford
SOLICITOR FOR THE RESPONDENT:	Watts McCray Lawyers

Orders

That the applicant father and the respondent mother shall have equal shared parental responsibility for the children of the marriage, namely:
D born … 2008;
E born … 2009; and
F born … 2012
hereinafter referred to as (“the children”).
That, pending further order, the children shall spend time with the father as follows:
(a)       From after school or day care until 6.30 pm each Wednesday;
(b)       From after school or day care until 6.30 pm each Friday;
(c)       From 8.30 am until 4pm each Sunday;
(d)       For a period of not less than three (3) hours on each of:
i.    the children’s birthdays;
ii.     Christmas Day;
iii.   the father’s birthday; and
iv.    Father’s Day
in the event the children are not ordinarily spending time with the father pursuant to these orders, as agreed between the parties and, failing agreement, from 3 pm until 6 pm if the day is a school day or from 9 am until 12 noon if the day is on a weekend.
(e)       At any other time as agreed between the parties in writing.
That the children shall otherwise live with the mother.
That for the purpose of effecting changeover in accordance with these orders changeover shall occur at the children’s preschool or school in the event that it is a school day…

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: [2013] FamCA 654
Decision Date: 16 August 2013

CaseChat Overview and Summary

In *Wenlack and Cimorelli (No 2)*, Aldridge J considered interim parenting arrangements for three children. The dispute centred on the amount of time the children would spend with their father, with the mother contending that the father's prior absence from the family meant he lacked a sufficiently close relationship and the necessary parenting skills to justify increased time. The court acknowledged that interim hearings are not the appropriate forum for making final factual findings, especially where issues of credit are likely to arise.

The primary legal issue before the court was to determine the interim parenting arrangements that would best serve the children's interests. Specifically, the court had to decide whether the children should spend more time with the father than they presently did, and whether this extended time should include overnight stays. The mother's assertions regarding the father's limited involvement and parenting capacity were central to this determination.

Aldridge J reasoned that, on the evidence presented at the interim hearing, it was appropriate to increase the time the children spent with the father. However, the court determined that the extended time would not include overnight stays, deferring the issue of overnight time for later consideration by the parties and the court, if necessary. The court ordered equal shared parental responsibility and set out specific, non-overnight, time arrangements for the father, including mid-week and weekend contact, as well as time on significant days. The children were to otherwise live with the mother, and detailed provisions were made regarding changeovers, communication, notification of illness or injury, and the exchange of information with schools and medical professionals.

Orders

Orders of the court

That the applicant father and the respondent mother shall have equal shared parental responsibility for the children of the marriage, namely:

D born … 2008;

E born … 2009; and

F born … 2012

hereinafter referred to as (“the children”).

That, pending further order, the children shall spend time with the father as follows:

(a) From after school or day care until 6.30 pm each Wednesday;

(b) From after school or day care until 6.30 pm each Friday;

(d) For a period of not less than three (3) hours on each of:

i. the children’s birthdays;

ii. Christmas Day;

iii. the father’s birthday; and

iv. Father’s Day

in the event the children are not ordinarily spending time with the father pursuant to these orders, as agreed between the parties and, failing agreement, from 3 pm until 6 pm if the day is a school day or from 9 am until 12 noon if the day is on a weekend.

(e) At any other time as agreed between the parties in writing.

That the children shall otherwise live with the mother.

That for the purpose of effecting changeover in accordance with these orders changeover shall occur at the children’s preschool or school in the event that it is a school day or, if not on a school day, the father shall collect the children from the mother’s place of residence at the commencement of the father’s time with the children and the mother shall thereafter collect the children from the father’s place of residence at the conclusion of the father’s time with the children.

That each parent shall inform the other in writing of any change to his or her residential address not less than seven (7) days prior to such change occurring and of any change to his or her contact telephone number within forty-eight (48) hours of such change occurring.

That the parties may communicate with the children each evening the children are in the care of the other parent and the resident parent shall facilitate and encourage such communication by telephone, “Skype” and/or “FaceTime” and for the purpose of this order the parties shall ensure that the children are available to communicate with the non-residential parent between 5 pm and 6 pm.

That each party shall notify the other as soon as possible and, in any event within twenty-four (24) hours, of any serious injury or illness suffered by the children whilst with that party.

That the parties shall do all acts and execute all documents necessary to provide all authorities and to give all necessary consents to ensure that the Principal and staff of each of the child’s school or pre-school, together with the child’s treating medical professionals, are directed and authorised to communicate with and provide information and copies of documents directly to each parent upon each parties’ request at their own cost.

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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