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 with the last point that was made by the mother’s legal representative, which relates to the third order that she is seeking, that is that she be permitted to attend functions. I note that in a large part, the submissions made on her behalf by her legal representative appeared to be directed to the issue of challenging or questioning or seeking to revisit in some way the orders made on 4 October, which were orders suspending the then current parenting arrangement which had a regime of shared care.
That is not what today’s short hearing, which is a continuation from two days’ ago, is about. It is exclusively about the question of what is to happen in relation to the children’s schooling pending the 1 November 2019 hearing. If the mother is successful at the November 1 hearing, (and I anticipate, on the basis of what I was informed two days ago, that her application will be a return to the final order arrangement or an arrangement that would see the children in some way predominantly be in her care), then as a matter of logic the children would return and continue to complete the school year at their current school and would also, as a matter of logic and convenience, then progress, in the case of the older child, to the high school in which she is enrolled.
If, however, the father is successful in his application, and he has made it clear that he seeks interim orders that the children live with him, then he would – I would understand, again, as a matter of logic – make arrangements for the children to be enrolled in new schools in the area in which he is living. And so their arrangements for the balance of the year, and in the case of the oldest child, her transition to high school, would be connected to that new school. So what I am concerned with today, only, is what will be in the best interests of the children for the just-under three weeks remaining before the 1 November hearing.
Some of the matters touched on and the language used in submissions on behalf of the mother, including words such as “denying the mother access to the children” and her seeking to “address that situation in this application”, combined with order 3 that she seeks (an order that she be permitted to attend school functions) cause me to gain the impression that the mother is more concerned at this stage, as I would understand she may well be, with addressing some of the ramifications of the suspension of the orders rather than focusing only on the issue of the children’s school.
That having been said, the mother puts forward some quite powerful reasons for the children maintaining their current arrangement, with particular emphasis on stability and maintaining that place which has been described as the children’s point of reference, particularly having regard to the tumultuous time that they have gone through in recent times. And I would say that recent times appears to be a matter of months, rather than simply a matter of days or weeks. In terms of the section 60CC factors, one of the important additional considerations is the likely impact of a change on the children through the orders that are being made and I accept that that is a matter to which weight should be attached in this limited application for this limited period of time.
On the other hand the need to protect the children from the parental conflict, which could be encompassed in a number of the other section 60CC matters – and, if it does not fit neatly with any of them it can be any other matter that the Court considers relevant – in my view is the matter to which the greatest weight must be attached for these children. The issues of stability and familiarity with important relationships and those sorts of matters can equally be met in both parental households, because both of the parents seem very well-connected to their extended families and that the children have enjoyed good relationships with those extended families. But it is true that the stability specifically in terms schooling and familiarity and the point of reference does favour the mother’s application.
However, as I have said, I think there are greater concerns for these children in the immediate sense – and we are talking about the next three weeks – particularly given the circumstances in which they have come to be in the care of the father.
I do not accept the submission on the limited information available made to me that the father is making this set of circumstances for these children more dramatic than they should be. The involvement of police in the execution of a recovery order would always be a very difficult situation for children, particularly the way in which it appears to have been executed, where it took two days for the police to actually be able to take the children into their care. I don’t accept the submission that the father is making the circumstance much more dramatic that it needs to be.
The need for the children to be protected from anything associated with the parental dispute and that it be put it back in the domain where it belongs that is between the parents is, in my view, the most important factor in relation to the next few weeks on this very limited aspect of the school education.
The eldest child being in year six is at quite a critical point in her education and it’s very unfortunate for her in particular that this issue has arisen at this particular time. The other two children are at less critical stages but, of course, there are matters for them arising from this application relating to not participating in events organised at the school and matters of that kind. However, the inquiries of the Independent Children’s Lawyer indicate that the only activity that involves the greater school community other than the usual activities that children are involved in is a Halloween night prior to the 1 November. If at worst, the children miss that I am not of the view that that is of an issue of great significance. It’s not referred to as a particularly part of either parent’s culture and that seems to be the only event they will miss.
So far as issues such as the eldest child being able to do her transition to high school is concerned again that will be occurring after the 1 November, even on the mother’s own evidence.
The second question that has arisen, and a matter that the mother takes particular objection to relates to the NESA program. I accept that annexed to her affidavit is reliable evidence about that program being an email written by someone described as an authorised person at the New South Wales Education Standards Authority. I accept and the Independent Children’s Lawyer accepts and the father accepts that the home schooling program in New South Wales overseen by the New South Wales Education Standards Authority is not something that can be invoked quickly on a short term basis or on a limited basis. It is not that program that the father wishes to avail himself of. The father wishes to avail himself of the distance education program.
While I agree that the material that is put before the Court in relation to conversations from the principal concerning the distance education program is hearsay, that is certainly not unusual and considering the role of the Independent Children’s Lawyer in these proceedings, that is a completely normal way that this Court would receive information. In fact, often it is simply orally put from the bar table, so I think that there is even a greater level of firmness in this case as the Independent Children’s Lawyer’s information is put in writing. I accept that given her role and as an officer of the Court that she has accurately reflected the information that has been passed on from the school. In the absence of anything suggesting that the father is incorrect or the school principal is incorrect about distance education as opposed to NESA homeschooling, I accept that it is something available, that the information has been provided in good faith by the principal and that the father intends availing himself of that program.
From an educational point of view, it would appear that the father would be well capable of being a parent who could deliver that program, even though I am unaware of the details of the program, considering that the children are of primary school age, that he is a tertiary educated professional and that he will assisted by his mother, who has extensive history as a school teacher.
The other information that is contained in the father’s affidavit and, in particular, in the Independent Children's Lawyer’s letter is that the principal has advised the Independent Children's Lawyer that she has concerns regarding “information which is circulating around the school regarding the current proceedings and the children’s living arrangements” and has concerns should the children currently return to their school.
I am assisted by the principal having passed on that information through the Independent Children's Lawyer in a manner, having regard to the Independent Children's Lawyer role that I consider entirely appropriate, because that is exactly the sort of matter that I was concerned about two days ago when this question first arose before me. This is especially so given what appears to have been an unusually high level of interest in these proceedings that has gone beyond the parents themselves.
It cannot be in the children’s best interests that they are the subject of gossip and conversation and interest for whatever reasons in their personal circumstances, particularly at a time that would be expected to be quite difficult for them, having had to be removed from the care of their mother by police in a process that took two days and placed in the care of their father. They have a need to be protected from every aspect of interest or anything outside the dispute being where it ought to be, and that is between the parents.
If it is of a sufficient level that the school principal has expressed her concern for the children, I must attach weight to that matter and, in my view, that is the most-weighty factor in this application.
None of the other best interest considerations (which are much more concerned about matters for more lengthy orders) really have any particular relevance to this particular question about the school children’s schooling while, of course, they will be highly relevant when it comes to the actual issue of the rest of the interim orders on 1 November.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 16 October 2019.

Associate:

Date: 29 October 2019