Wenlack & Cimorelli
[2019] FamCA 755
•4 October 2019
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 | of | 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 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.
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
This is an application brought in urgent circumstances for a recovery order in respect of the parties’ three children who are aged 11, nine and seven.
The greater context of the application is that there has been a dispute between the parents, ongoing for many years, in relation to the care arrangements for these three children, which seemingly was settled by final parenting orders made in August 2015. Those orders provide for the children to live in an equal shared care arrangement between both parents. It is of note that those orders were ultimately made with the consent of the parties, being fully aware of the case that each had presented against one another, and the evidence in the proceedings.
I understand that things proceeded reasonably well in accordance with those orders on both the versions, to the extent that I can understand them, put before the Court, in the sense that the children did live with the father and the mother under the equal time arrangement, and in accordance with the orders, for many years.
Earlier this year, there appears to have been a series of events culminating in an occasion in April where there was a quite a crisis in relation to the passing of the care of the children from the mother to the father, which has had a significant impact on the relationship between the children and their father. The effect of it is that, rather than living in the equal time arrangement, the children are spending very limited time with their father, and they are certainly not living with him in anything like the arrangement provided for under the orders.
There are slightly different arrangements with respect to each of the children. The estrangement, or tense relationship, between the father and the eldest child seems to be the most marked, while the youngest child is certainly having time with the father that most resembles the final consent orders.
The father, however, was sufficiently concerned about the breakdown in the arrangements for the children, and harm, as he sees it, to the relationship between he and the children, that he commenced proceedings in late April this year seeking to revisit the parenting arrangements for the children.
The mother engaged with those proceedings by filing a Response, which, as noted today, did not suggest that the father poses a risk of harm to the children, either acceptable or unacceptable, because under her proposed orders the children would spend significant time in their father’s care.
At a recent court event presided over by a Senior Registrar orders were made for the parties to engage with an expert. It was an extremely unusual order because the expert that was selected by the parties (and I say the parties, because both parties consented to the appointment of this expert), is based in Melbourne. When I say it’s very unusual, it’s not unheard of, and I understand - though I stand to be corrected if it’s not the case that one of the reasons that the person was chosen is because that expert did have appointments in a few months after the orders were made, whereas it is often extremely difficult to get appointments with appropriately qualified experts for many, many months, or even up to a year, particularly in Sydney – and I include Parramatta with Sydney.
In any event, it was an order that was made with the consent of the parties, and the arrangement was that the father would pay for the cost of the report upfront. The father was also to pay under the orders the cost of the airfares to Melbourne for the children, and some other orders were also made on that date. Subsequent to that, the date of the appointment with the expert was changed. The mother then brought an application before this Court, in effect, seeking to revisit the appointment of the expert in Melbourne, whereas the father was seeking some machinery-type orders to facilitate that appointment. This was heard on 17 September
By that stage, when the matter came before me on 17 September 2019, the appointments with the expert were only a few weeks away. The father was also then seeking that these proceedings be dealt with expeditiously, given the difficulty for the children in not having the benefit of the parenting arrangement provided for under the parenting orders, and particularly not having both parents equally involved in their care, in accordance with the orders.
In all of the circumstances, given that the orders had been made by consent, but the father was bearing the expenses involved, that the appointments were available within a couple of weeks and that the expert was suitably qualified, there seemed to be no reason whatsoever not to confirm those appointments so orders were made in these terms.
The mother could have been left in no doubt whatsoever that the appointments with the expert were to go ahead. She had a lawyer acting on her behalf that day, who engaged very stridently, putting the mother’s position, but the orders could not have been clearer. The orders made confirmed the appointment with the expert and also provided more detailed orders for matters in relation to facilitating that appointment. The onus was on the mother, under the orders, to present the children to the expert for the purposes of that appointment.
The mother did not do what she was required to do, that is, present the children to the expert. I recite all of this only by way of background, and as I have stressed in the course of the proceedings, I am not dealing with contravention proceedings. Even on the mother’s case, it is not in dispute that she did not present the children nor attend to appointments with the expert herself, though the father did attend.
The mother had subsequently in the meantime filed further Applications in the Case. She was also ordered to attend Court today. The arrangement was made today at the request of the independent children’s lawyer who had been given liberty to relist the proceedings in circumstances that she regarded as appropriate.
I understood the mother, in the brief personal appearance this morning was attempting to suggest that she was unaware of a further order to present the children today. I did not accept that, as the order made by this Court for the listing today contained within it an order that she present the children to Child Dispute Services. They were not presented as ordered.
The mother then appeared today and left the Court without indicating the reason for doing so, and spent some time locked inside or placing herself in the disabled toilet facilities at this level. Arrangements were made for a lawyer to see her. She had a large number of support people with her. She was informed that there was an important application before the Court and that she should return.
The lawyer who was provided to assist the mother informed the court she had advised the mother that if she did not return that the matter could be determined in her absence. In those circumstances, I proceeded with the matter.
The application for a recovery order is made by the father and supported by the independent children’s lawyer. It is submitted on the father’s behalf that there cannot be concerns about any unacceptable risks of harm to the children in his care even on the mother’s case, because her proposal is that the children continue to live in an arrangement where they spend substantial and significant including overnight and, by definition, unsupervised time with the father.
It is also to be noted that the mother did not seek at any time to vary the parenting arrangements herself. They had never been varied but she appears to have unilaterally imposed some sorts of conditions purporting to vary them.
The father is concerned that currently he does not know where the children are. He has not seen them for since this Tuesday or for a number of days. He is concerned that they were not presented today, and he has immediate concerns about their welfare and seeks a recovery order on that basis.
Section 67U of the Family Law Act 1975 (Cth) provides that in proceedings for a recovery order the Court may, subject to 67V, make such recovery order as it thinks proper and 67V provides that in deciding whether to make a recovery order in relation to the child the Court must regard the best interests of the child as the paramount consideration. That, then, causes the Court to have regard to section 60CC of the Family Law Act 1975 (Cth), and the matters set out in there as to what is in the children’s best interest. I will only refer to those which are relevant to these proceedings.
So far as the primary considerations are concerned, the Court must give more weight to the need to protect the children from physical or psychological harm from being subjected to or abuse, neglect or family violence that to the other primary consideration which is the benefit to the children having a meaningful relationship with both of the children’s parents.
A recovery order placing the children back in the care of the parent who has orders made in his favour for the exercise of joint parental responsibility and equal care of the children, will certainly not deprive or have any impact on the issue of the benefit of having a meaningful relationship with both parents.
The issue of the need to protect the children from physical or psychological harm is obviously one which looms large in these proceedings. As submitted by the father through his lawyer, which I accept there cannot be any contention that there is an unacceptable risk of harm, or any risk of harm to the children in the father’s care, because he is currently a person equally sharing the care of the children. Those orders have not been set aside. And the mother’s, proposal in any event, should the final orders be revisited, are that the children have substantial and significant time with him.
Matters such as the views of the children are not known. One of the concerning matters under the additional considerations under 60CC relates to the attitude of the parents, and in particular in this regard, the mother, to the responsibilities of parenthood, demonstrated by each of the parents. In that regard, I have regard to the mother’s failure today to comply with an order of the Court and her failure to present the children to the expert for the purposes of the assessment.
I also do consider that the second of the primary considerations, that is, the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence, and the capacity of the parents to provide for the children’s needs, including emotional, intellectual needs, are the matters that are the most weighty in this application.
It is very concerning that if the mother is, as asserted by the father, effectively imposing her own conditions on the children’s time with the father and depriving the children of the benefits of their relationship with the father by depriving him of the opportunity to have the children live in his care and make decisions about them as provided for under the orders, then there is a real risk of the children being exposed to psychological harm and a failure to meet their emotional needs.
The mother has not disputed in these proceedings that the children have not been spending time with the father in accordance with the orders. She has not disputed that she attends and effectively supervises the father’s time with the children, even though there are orders that she not do that. She has not applied to this Court or had those orders varied and in effect, is the person deciding what’s best for these children.
In circumstances where the Court needs to be able to assess the respective claims, the attendance upon the expert was obviously extremely important. And when that did not go ahead, when, it was absolutely clear that it needed to, then the mother was ordered to bring the children today and she did not do so. I agree with the submission and attach significant weight to that made by the independent children’s lawyer this is significant because it is school holidays and there currently are no other independent eyes who could be effectively acting to safeguard the children’s wellbeing, such as school teachers or schools from whom enquiries could be made about those matters.
The mother has twice failed to present the children to people who are highly relevant in terms of making an assessment of their wellbeing. The father currently does not know where they are. In these circumstances, in my view, there are valid concerns about the children’s wellbeing.
It is extremely disappointing that the mother did not try to engage with the efforts that I attempted to make this morning to present the children as ordered. It is always better for children for authorities such as police not to become involved. Rather than engage with that, (and I do note that the mother was supported by a large number of people today who could have facilitated that) the mother initially tried to claim that she wasn’t aware of her obligation to bring the children today, which, as indicated, I did not accept. Then having informed her of my response she attempted to explain that one of the children was unwell without presenting a doctor’s certificate to the court.
Even more so, if the child is feeling unwell, one would have thought that the mother ought to have indicated she could have complied with this order so that a recovery order would not need to be made.
It is not the case that if the mother had presented the children today that a recovery order would have issued or that there would have been a change in the children’s care. That was not an application that was before the Court today.
As the mother chose not to comply with the order to present the children, as it turned out, the other party made application for a recovery order.
In these circumstances I am satisfied that it is in the children’s best interest for a recovery order to issue and that it is otherwise appropriate to do so.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 4 October 2019.
Associate:
Date: 18 October 2019
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