Wenlack & Cimorelli - [2019] FamCA 755

FAMILY COURT OF AUSTRALIA

WENLACK & CIMORELLI

[2019] FamCA 755

FAMILY LAW – CHILDREN – Interim Parenting – Recovery Order – Where the mother did not comply with orders to present the children to Child Dispute Services – Where the mother did not comply with orders made by consent to facilitate children attending upon an expert for preparation of an expert report – Orders made pending further order for the father to have sole parental responsibility and for the children to live with the father.

Family Law Act 1975 (Cth) ss 60CC, 67U, 67V
APPLICANT:	Mr Wenlack

RESPONDENT:

Ms Cimorelli

FILE NUMBER:

SYC

2881

2013

DATE DELIVERED:

4 October 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

4 October 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Winning

SOLICITOR FOR THE RESPONDENT:

Self-represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER :

Ms Smith

Orders

Pending further order, each party and their agents are restrained from removing or attempting to remove or causing or permitting the removal of the children E born … 2009, D born … 2008, and F born … 2012 (‘the children”) from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the names of the children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until the children reaches the age of 18 years or the Court orders its removal.

THE COURT NOTES

A.The order is made as a preventative measure but it will be considered in the course of the day whether additional restraints need to be made.

THE COURT FURTHER ORDERS

Pursuant to section 67U of the Family Law Act 1975, a recovery order issue directed to the Marshal of the Family Court of Australia, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the children E born … 2009, D born … 2008, and F born … 2012 (“the children”) and to deliver the said children to MR WENLACK and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said children may be found.
Pending further order, the final orders made on 27 August 2015 in relation to the children are suspended.
Pending further order, the children are to live with the father and the father is to have sole parental responsibility for the children.
The father is to advise the Court as soon as practicable when the children are recovered to his care.
Pursuant to s68B of the Family Law Act the mother is restrained from taking any steps to have the children returned to her care including through a third person and is…

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

AGLC: Wenlack & Cimorelli [2019] FamCA 755
Case: [2019] FamCA 755
Decision Date: 4 October 2019

CaseChat Overview and Summary

In the Family Court of Australia, Justice Hannam considered an application concerning the welfare of three children, E, D, and F. The dispute involved urgent measures to prevent the children from being removed from Australia and to facilitate their recovery and care arrangements.

The court was required to determine whether to issue orders restraining the removal of the children from Australia, to make a recovery order for the children, and to make interim orders regarding the children's living arrangements and parental responsibility. Additionally, the court considered whether to restrain the mother from taking steps to have the children returned to her care.

Justice Hannam made several orders, including restraining the parties and their agents from removing the children from Australia, requesting the Australian Federal Police to place the children's names on the Airport Watch List, and issuing a recovery order directing law enforcement officers to find and recover the children and deliver them to the father. The court also suspended previous final orders, ordered that the children live with the father and that he have sole parental responsibility, and restrained the mother from taking any steps to have the children returned to her care or contacting them. The matter was listed for further case management.

Orders

Orders of the court

Pending further order, each party and their agents are restrained from removing or attempting to remove or causing or permitting the removal of the children E born … 2009, D born … 2008, and F born … 2012 (‘the children”) from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the names of the children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until the children reaches the age of 18 years or the Court orders its removal.

THE COURT NOTES

A. The order is made as a preventative measure but it will be considered in the course of the day whether additional restraints need to be made.

THE COURT FURTHER ORDERS

Pursuant to section 67U of the Family Law Act 1975, a recovery order issue directed to the Marshal of the Family Court of Australia, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the children E born … 2009, D born … 2008, and F born … 2012 (“the children”) and to deliver the said children to MR WENLACK and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said children may be found.

Pending further order, the final orders made on 27 August 2015 in relation to the children are suspended.

Pending further order, the children are to live with the father and the father is to have sole parental responsibility for the children.

The father is to advise the Court as soon as practicable when the children are recovered to his care.

Pursuant to s68B of the Family Law Act the mother is restrained from taking any steps to have the children returned to her care including through a third person and is restrained from contacting the children by any means including through a third party.

The matter is listed for further case management 14 October 2019 at 2.15pm.

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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