Wenlack & Cimorelli (No 3)

Case [2023] FedCFamC1F 248

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Wenlack & Cimorelli (No 3) [2023] FedCFamC1F 248

File number(s): SYC 2881 of 2013
Judgment of: HANNAM J
Date of judgment: 5 April 2023
Catchwords: FAMILY LAW – FINAL PARENTING – Where the father and ICL contend that the children have been subjected to psychological abuse by the mother – Where the father and ICL seek that orders be made for long term supervision – Where the mother contends that there is no risk of harm posed in either household – Where the mother has previously contended that the father poses a significant risk of harm – Where the mother seeks a return to an equal shared care arrangement – Where I am satisfied that the children have been subjected to psychological abuse perpetrated by the mother – Where the maternal grandparents and maternal aunt are parties to the proceedings – Where the extended maternal family poses an unacceptable risk of harm to the children– Where orders are made for the children to live with the father – Where orders are made for long term supervision of the children’s time with the mother – Where orders are made for long term supervision of the children’s time with the maternal grandparents – Where restraints are made against members of the maternal family
Legislation: Family Law Act 1975 (Cth) ss 4, 4AB(1), 60CC(2), 60CC(3)(b), 60CC(3)(c), 60CC(3)(ca), 60CC(3)(d), 60CC(3)(e), 60CC(3)(f), 60CC(3)(i), 60CC(3)(g), 60CC(3)(m), 61DA, 68B.
Cases cited:

 Cimorelli & Wenlack [2020] FamCA 615

Donnell & Dovey [2010] FamCAFC 15

Godfrey & Sanders [2007] FamCA 102

Goode & Goode (2006) FLC 93-286

Gorman & Huffman & Anor [2016] FamCAFC 174

Isles & Nelissen [2022] FedCFamC1A 97

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

Moose & Moose [2008] FamCAFC 108

Slater & Light [2013] FamCAFC 4

Wenlack & Cimorelli [2019] FamCA 755

Wenlack & Cimorelli (No. 2) [2019] FamCA 790

Wenlack & Cimorelli (No. 3) [2019] FamCA 791

Wenlack & Cimorelli (No. 4) [2019] FamCA 854

Wenlack & Cimorelli [2022] FedCFamC1F 180

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

Division: Division 1 First Instance
Number of paragraphs: 529
Date of last submissions: 17 October 2022
Date of hearing: 14 – 18 February; 11 March; 21 March; 17 May; 31 May – 1 June; 14 September 2022
Place: Parramatta
Counsel for the Applicant: Ms Tabbernor (direct brief)
Counsel for the First Respondent: Mr Givney and subsequently Litigant in person
Solicitor for the First Respondent: Apex Legal and subsequently Litigant in person
Counsel for the Second and Third Respondents: Ms Reid (direct brief)
Solicitor for the Fourth Respondent: Litigant in person
Counsel for the Independent Children's Lawyer: Ms Shea
Solicitor for the Independent Children's Lawyer: Legal Aid NSW Sydney Central Family Law

ORDERS

SYC 2881 of 2013

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

MR WENLACK

Applicant
AND:

MS CIMORELLI

First Respondent

MR C CIMORELLI

Second Respondent

MS D CIMORELLI

Continue reading Wenlack & Cimorelli (No 3)

Sign in free to access the full text

Details
AGLC
Wenlack & Cimorelli (No 3) [2023] FedCFamC1F 248
Case
[2023] FedCFamC1F 248
Decision Date

CaseChat Overview and Summary

The case of Wenlack & Cimorelli (No 3) involves a dispute between the parents of three young children, following their separation in April 2013. The parents initially reached an agreement on a parenting arrangement, which was formalized in August 2015. However, the mother later raised concerns about the father's care of the children, leading to further proceedings. The court was tasked with determining the most appropriate parenting arrangement, taking into account the best interests of the children.

The legal issues before the court included whether the presumption of equal shared parental responsibility should apply, given the mother's conduct, and what arrangement would best serve the children's interests. The court considered evidence from various sources, including expert testimony, and assessed the impact of the parents' conduct on the children. The court concluded that the presumption of equal shared parental responsibility did not apply in this case due to the mother's conduct, which the court deemed as family violence. The court found that it was in the best interests of the children for the father to exercise sole parental responsibility.

The court's reasoning was based on the evidence presented, which highlighted the detrimental effects of the mother's conduct and the maternal family's response on the children. The expert's evidence was particularly influential, recommending that the children live with the father and have supervised time with the mother. The court also noted the mother's lack of insight into the harm caused by her actions and the potential for ongoing disturbance for the children if the current arrangements continued. The court found that the father's proposal was the most suitable arrangement, as it would avoid the negative impacts experienced by the children under the maternal family's care.

The final orders made by the court were that the father should have sole parental responsibility for the children, and the children should live with him. The children were to spend defined supervised time with the mother, and there were specific conditions for the maternal grandparents' involvement in the children's lives. The court emphasized the need for these orders to be followed to prevent further harm to the children and to promote their well-being.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The question for me to determine is which of the various proposals is proper having regard to the best interests of the children as the paramount consideration. BACKGROUND The parents separated in April 2013 when their six year marriage came to an end. At that time the children were all five years of age and younger. The parents have subsequently divorced. Following separation, the father commenced proceedings for parenting orders which progressed to final hearing in August 2015. Part way through that trial the parents reached agreement about a parenting arrangement that they then considered was in the children’s best interests and final orders were made (“the August 2015 Orders”) in accordance with the parents’ agreement in resolution of the dispute. The August 2015 Orders provided for the parents to have equal shared parental responsibility for the children and for the children to spend an increasing amount of time with the father until it reached an endpoint of equal time by the end of 2017. Throughout the course of the earlier proceedings, the mother had contended that the father posed a risk of harm to the children. However, in an affidavit filed for the purposes of the earlier trial she deposed to no longer having a belief that there is any risk of harm or danger to the children while they are in the father’s care and a notation was made in the August 2015 Orders to this effect. Events following the August 2015 Orders The parenting arrangements proceeded for some years in accordance with the August 2015 Orders without apparent difficulties known to the father at the time. It subsequently came to light, however, that the mother had various concerns about the father’s care of the children commencing from a time shortly after the August 2015 Orders were made. A report from the Department then known as Family and Community Services (“the Department”) (Exhibit 15) records that from December 2015 notifications about the father’s care began to be received by the Department as had been the case for much of the time that the earlier proceedings had been on foot. Four notifications made between December 2015 and February 2016 alleged that the father engaged in excessive discipline of the children and that he had physically harmed them. The mother also expressed concern in different settings about the father’s explanation for the circumstances in which the son broke his arm in 2016, and in March 2016 sought the assistance of police “to help her dispute the family law decision.” From June 2016 the mother and maternal aunt moved to live with the maternal grandparents in the grandparents’ home (“the maternal family home”). When the children were in the care of their mother this was their home. The youngest child exhibited behaviour in about 2017 that the mother considered sufficiently concerning to contact police and arrangements were made for this child to see the school counsellor. Throughout 2018 the mother sought out various “therapeutic” programs to assist the children with various difficulties that she considered they were experiencing and that she believed were in some way connected to their parenting arrangements or the father’s conduct.

Evidence

Evidence Before The Court

The maternal grandparents relied upon an affidavit of the maternal grandfather, who was cross-examined in the proceedings. They also relied upon an affidavit of the maternal grandmother though she was not cross-examined. The expert’s evidence The expert was cross-examined by each of the legal representatives on the fifth day of the hearing. He remained firm about his overall recommendations that the father hold sole parental responsibility for the children and that the children live with the father and continue to spend defined supervised time with the mother. When cross-examined by the ICL the expert was firm in his recommendation that the children’s time with the mother be professionally supervised, explaining that if the time is unsupervised the mother will likely support and amplify any negative experiences about the father that the children report to her. It was the expert’s view that “wittingly” or “unwittingly”, the mother has reinforced the children’s complaints about the father resulting in ongoing disturbance for the children emotionally and behaviourally which has been to their detriment. The expert opined that if the Court were to find that there have been occasions in the past where the mother has repeated the children’s allegations to services and third-parties and not informed those third-parties that she did believe the allegations were untrue, such action would not only reinforce the children’s beliefs but would go further and amount to recruiting others to propagate such concerns. The expert accepted that it is possible that the risk posed by the mother to the children has diminished over the time the children have been in the father’s care. He opined this may be signified by an acknowledgment (by the mother) of past mistakes and by her having the capacity if the children made further allegations to ignore them, move on and not repeat those statements. When cross-examined by counsel for the father, the expert opined that the maternal grandparents showed no insight into the risks posed to the children or any understanding of the damage that had been occasioned to the children by the recurrent notifications to the Department. The expert repeated that it was his opinion that the maternal grandparents were either very naive or disingenuous in terms of how they addressed the issues before the Court. The expert maintained the recommendation in his report that the children should have monthly unsupervised time with the maternal grandparents without the mother or maternal aunt being present and if the maternal grandparents were unable to adhere to this requirement, the children’s time with them should cease. The expert opined that he did not get any impression in his interview with the mother that she understood the negative impacts or psychological harm that the children were subjected to in being taken to therapeutic interventions to explore allegations that were not true. Further, he opined that the mother had no insight into the psychological harm to the children in being repeatedly interviewed by police and Departmental officers about allegations that were not true and the potential harm to the children and to the father in not disavowing people who may have cause to believe the allegations to be true. The expert opined that he did not believe the mother’s lack of insight was an issue that he expected to be addressed in therapy as he considered that it was not a matter on the mother’s radar that she felt needed to be addressed.

Decision

Reasons for decision

There is cogent evidence from the expert about the need for these orders and benefits for the children if they are followed. If such orders are in place, the detrimental impact experienced by the oldest child as a result of the maternal family’s response to her coming into their care on 10 and 11 March 2022 will be avoided.CONCLUSION Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child. Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”. In Goode & Goode[42] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise. [42] (2006) FLC 93-286. Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)). I agree with the final submission made on the behalf of the father that it is arguable that the presumption does not apply in this case as the conduct of the mother falls within the definition of family violence.[43] However, as the father’s case was not run on this basis I do not make such a finding and proceed on the basis that the presumption of equal shared parental responsibility does apply. [43] Family Violence is defined in the Act at s 4AB(1) and examples of family violence are set out at s 4AB(2). Relevantly, one example is s 4AB(2)(i) “preventing the family member from making or keeping connections with his or her family, friends or culture”. For the foregoing Reasons and especially those discussed at paragraphs [506] – [508], in my view the presumption is easily rebutted in the circumstances of this case. I am easily satisfied that it is in the best interests of these children that the father exercise sole parental responsibility for them.Other parenting Orders

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.