Wenlack & Cimorelli (No 2)

Case [2022] FedCFamC1F 696

Federal Circuit and Family Court of Australia

(DIVISION 1)

Wenlack & Cimorelli (No 2) [2022] FedCFamC1F 696

File number(s): SYC 2881 of 2013
Judgment of: HANNAM J
Date of judgment: 14 September 2022
Catchwords: FAMILY LAW -  DISQUALIFICATION – Apprehension of bias – Where maternal grandparents contend curtailments of cross-examination and attitudes displayed cause them to feel the Court is not well disposed to maternal family – No submissions framed in terms of the “first” or “second” test in disqualification applications on the basis of apprehended bias – Application of the relevant two-step test – Application dismissed
Legislation: Family Law Act 1975 (Cth) ss 69ZN, 69ZX
Cases cited:

Antoun v The Queen (2006) 224 ALR 51; [2006] HCA 2

Charisteas v Charisteas 393 ALR 389; [2021] HCA 29

Ebner v Official Trustee in Bankruptcy 205 CLR 337; [2000] HCA 63

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Livesey v New South Wales Bar Association [1983] HCA 17

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427

Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39

Strahan & Strahan [2009] FamCAFC 204

Division: Division 1 First Instance
Number of paragraphs: 133
Date of hearing: 31 May 2022
Place: Parramatta
Counsel for the Applicants: Ms Reid
Solicitor for the Applicants: Litigant in person
Counsel for the First Respondent: Ms Tabbernor
Solicitor for the First Respondent: Litigant in person
Counsel for the Second Respondent: Mr Givney
Solicitor for the Second Respondent: Apex Legal
Counsel for the Third Respondent: Mr Cook
Solicitor for the Third Respondent: Litigant in person
Counsel for the Independent Children's Lawyer: Ms Shea
Solicitor for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

SYC 2881 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR C CIMORELLI

First Applicant

MS D CIMORELLI

Second Applicant
AND:

MR WENLACK

First Respondent

MS CIMORELLI

Second Respondent

MS N CIMORELLI

Third Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HANNAM J

DATE OF ORDER:

31 May 2022

THE COURT ORDERS THAT:

1.The application that I recuse myself is dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wenlack & Cimorelli has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

HANNAM J:

Introduction

  1. On the seventh day of protracted…

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Wenlack & Cimorelli (No 2) [2022] FedCFamC1F 696
Case
[2022] FedCFamC1F 696
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the case of Wenlack & Cimorelli (No 2) involves ongoing parenting disputes between the parents of three children. The maternal grandparents sought to have the children spend time with them separately from the mother’s parenting time, leading to their inclusion in the proceedings. The grandparents argued that they should be granted specific visitation rights and that their involvement would benefit the children’s emotional and intellectual well-being. The parents, however, contested these claims, questioning the grandparents' suitability and the necessity of their involvement.

The legal issues before the court included whether it was in the children's best interests to have additional time with the maternal grandparents and whether the grandparents were suitable and able to contribute positively to the children's lives. The court also had to consider the existing parenting arrangements and whether the grandparents' proposed orders would disrupt the children's stability and relationship with their parents.

In delivering the judgment, the court carefully reviewed the evidence and arguments presented by both sides. The judge emphasised that the primary consideration was the children's best interests, focusing on their emotional and developmental needs. The court found that the grandparents, while well-intentioned, were not deemed necessary for the children's well-being given the existing arrangements. The judge noted that the grandparents' involvement would not provide significant benefits and could potentially disrupt the children's stability and relationship with their parents. Therefore, the court decided against granting the grandparents the sought-after visitation rights.

The court ordered that the existing parenting arrangements remain in place, without additional time allocated to the maternal grandparents. This decision was made to ensure the children's continuity and stability in their current living situation.

Orders

Orders of the court

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Background

Background to the litigation

At the time I dismissed the application I indicated that I would subsequently publish my reasons for doing so. These are those Reasons. Background The application under consideration arose in the course of parenting proceedings between the parents (“the father” and “the mother”, or collectively, “the parents”) of three children now aged 13, 12 and nine (“the children”). The parties on whose behalf the application for recusal was made are the second and third respondents being the children’s maternal grandparents (“the maternal grandparents”). They seek orders for the children to spend time with them separate from the orders sought by the mother and for this reason were joined to the proceedings. The dispute between the parents concerning the future parenting arrangements for the children is longstanding with proceedings having been first commenced by the father in 2013 (“the earlier proceedings”). In the earlier proceedings the mother had raised concerns about matters which appeared to her to indicate that the parties’ eldest child, a daughter then aged five, may be at risk of sexual abuse by the father. This allegation was ongoing for some time throughout the course of the earlier proceedings, together with other allegations of physical harm to the children said to have been perpetrated by the father. Another feature of the earlier proceedings which had particular relevance for the arrangements for the children was the significant role the mother’s sister (“the maternal aunt”) had played in the children’s lives especially following the parents’ separation. Ultimately, the earlier proceedings were resolved by orders made with the parties’ consent in the course of a final hearing in August 2015 (“the August 2015 orders”). Notations to the August 2015 orders included that the mother accepts that there is no unacceptable risk to the children posed by the father on the available evidence and that the parents acknowledge that the children have a strong and loving relationship with each parent. Pursuant to those orders the children were to spend an increasing amount of time with the father until it reached an endpoint of an equal shared care arrangement between the parents in late 2017. The parenting arrangements for the children proceeded for some years in accordance with the final orders without apparent difficulties known to the father at the time. It subsequently came to light that the mother had various concerns about the father’s care of the children commencing from a time soon after August 2015. Documents produced on subpoena by the Department now known as Communities and Justice (“the Department”) record that from late 2015 notifications about risks associated with the father’s care of the children began to be received by the Department as had occurred in the earlier proceedings. The mother also expressed concern in different settings about the other matters associated with the father’s care of the children and in late 2018 enrolled the children in a program run by a service which provides therapy for children who have experienced trauma and for the purposes of increasing the children’s resilience. The father was not aware of the nature of the service or the enrolment of the children in the program at the time.

Evidence

Evidence Before The Court

The orders sought by the maternal grandparents are not contained in their Outline of Case. However, the grandparents’ counsel on their behalf indicated that they sought orders as contained in their Amended Response to Final Orders filed 8 July 2021. Those proposed orders provide that the children spend time with the maternal grandparents for two nights each alternate weekend, defined time in school holidays and defined time to attend certain cultural festivals. Counsel for the maternal grandparents made clear that they did not seek any positive orders if the mother were successful in her application and equal shared care resumed as the grandparents would then be free to spend time with the children whenever they are in the mother’s care. It was submitted on the maternal grandparents’ behalf that the children have a close and loving relationship with them and that they are sensible people who are able to assist the children’s emotional and intellectual wellbeing.The evidence at hearing At final hearing the father relied upon affidavits filed by himself and his sister (“the paternal aunt”), both of whom were cross-examined. The father was cross-examined by counsel for the mother for a period of approximately three and a half hours over the first two days of the hearing. Under cross-examination the father maintained that in the period following the earlier proceedings he tried hard to prevent and manage conflict with the mother and was concerned that the mother was attempting to undermine his relationship with the children, including through notifications being made to the Department. Counsel for the maternal grandparents cross-examined the father for approximately one hour on the second day of the hearing. Throughout her cross-examination, counsel for the grandparents frequently put propositions to the father in which she attempted to establish that the grandparents were “sensible” people. Counsel was reminded by the Court on multiple occasions that the question of whether the grandparents are sensible people is not a central issue in the proceedings, rather it is whether it is in the best interests of the children to spend time with them. Counsel for the maternal grandparents was also prevented from putting numerous questions to the father due to the form of the questions. In this regard it was indicated to counsel that cross-examination is not an opportunity to have a general discussion with a witness about a certain topic which she appeared to be attempting from the form of those questions. Further, when counsel attempted to ask questions of the father about matters which were not within his knowledge counsel was advised that she was not permitted to put questions to the father which cause him to speculate on the actions of other people. Other questions were not permitted on the basis that they were matters for submission rather than cross-examination. At the commencement of day three of the hearing counsel on behalf of the maternal grandparents made application to re-open her cross-examination of the father. Counsel submitted that cross-examination should not have been limited to issues relating to the best interests of the children and that her role also includes demonstrating to the Court that her clients are sensible people. This application was dismissed on the basis that the area of cross-examination proposed was not assisting the Court in determining the issues in the proceedings and that the time allowed for cross-examination in order to complete the proceedings within the allocated time was an issue which had been covered at the commencement of the hearing and revisited over the previous days.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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