Wenlack and Cimorelli (No 3) - [2019] FamCA 791

FAMILY COURT OF AUSTRALIA

WENLACK & CIMORELLI (NO. 3)

[2019] FamCA 791

FAMILY LAW – CHILDREN – Where the father proposes in the interim that it is in the best interests of the children for them to be educated through the distance education program – Where evidence adduced that the school principal has expressed concern about the children returning to their current school – Where orders made that the father arrange for the children to be immediately enrolled in a distance education scheme until the interim hearing.

Family Law Act 1975 (Cth) s 60CC
APPLICANT:	Mr Wenlack

RESPONDENT:

Ms Cimorelli

INDEPENDENT CHILDREN’S LAWYER:

Ms D. Smith

FILE NUMBER:

SYC

2881

2013

DATE DELIVERED:

16 October 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

16 October 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms M. Winning

COUNSEL FOR THE RESPONDENT:

Mr G. Simpson

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms D. Smith

Orders

The father is to forthwith take all steps required of him to ensure that the children are immediately enrolled in the distance education scheme and that they undertake all set work and activities prescribed by that scheme until the 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

In this application, which is concerned with the issue of the schooling arrangements for the children who are the subject of these proceedings, each of the parents proposes a different arrangement. The father proposes that, prior to the interim hearing which has been fixed for 1 November 2019, as the children are currently living with him under the short-term interim suspension of the final orders, the best interests of the children would be met by having them educated through the distance education program, which he seeks that undertake for the next three weeks.
The mother seeks that the children be returned to the primary school in which they are enrolled and have been attending for a number of years, that the father do all things necessary to ensure that they attend extracurricular activities organised by the school that each child wishes to attend, and that the mother be permitted to attend functions in which the children are engaged and for which parents are invited.
The Independent Children’s Lawyer supports the position of the father.
I will be begin…

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 3)

Details

AGLC: Wenlack and Cimorelli (No 3) [2019] FamCA 791
Case: [2019] FamCA 791
Decision Date: 16 October 2019

CaseChat Overview and Summary

In the matter of *Wenlack and Cimorelli (No 3)*, Hannam J of the Federal Circuit Court of Australia considered a dispute between a father and mother concerning the education of their children. The father sought orders for the children to be enrolled in a distance education scheme and to undertake all prescribed work and activities.

The primary legal issue before the court was whether to make orders requiring the father to enrol the children in a distance education scheme and ensure their participation in that scheme until a specified date. This involved determining the best interests of the children in relation to their educational arrangements.

Hannam J reasoned that it was in the children's best interests to be enrolled in the distance education scheme and to actively participate in its prescribed work and activities. The court ordered that the father must forthwith take all necessary steps to ensure the children's immediate enrolment in the distance education scheme and their undertaking of all set work and activities until 1 November 2019.

Orders

Orders of the court

The father is to forthwith take all steps required of him to ensure that the children are immediately enrolled in the distance education scheme and that they undertake all set work and activities prescribed by that scheme until the 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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