Wenzel and Wenzel

In the Federal Circuit Court of Australia at Melbourne, Mr Wenzel (the applicant father) sought urgent parenting orders concerning his two children, [X] and [Y], against Ms Wenzel (the respondent mother). The father's application sought a change of residence for the children to his care, with a period of three months where they would not spend time with their mother. The father's concerns centred on allegations of the mother's drug use, her mental health, and the children's resistance to spending time with him. The mother opposed the application, highlighting the children's consistent views and their expressed difficulties with the father's conduct, proposing a resumption of alternate weekend contact with the father, without her involvement in changeovers. The Independent Children's Lawyer broadly supported the father's position.

The court was required to determine the primary issues of risk concerning the children's welfare, specifically addressing allegations of the mother's drug use, the parents' respective functioning and vulnerabilities, and the alignment of the children with the mother. A significant factor was the children's consistent refusal to spend time with their father, which had escalated since an incident at the father's home in March 2018. The court also considered the children's sporadic school attendance and the detrimental impact of parental conflict on their emotional well-being and their perceived need to protect their mother.

The court reasoned that while allegations of the mother's drug use remained unresolved, it was not the primary risk concern at that stage, particularly given a negative drug screen result (albeit with a diluted sample) and a report from Dr B finding no evidence of a substance abuse disorder. The court acknowledged that both parents had exposed the children to conflict and possessed vulnerabilities, but the focus remained on the children's best interests. The court noted the children's consistent complaints about the father's anger and grumpiness, and his difficulties in reading emotional cues, as identified by Dr A. Conversely, concerns were raised about the mother's mental health and emotional regulation. The court also highlighted the significant disruption to the children's education due to sporadic school attendance, suggesting potential issues within the mother's household. The court found that the children, particularly the older child [X], had been heavily involved in parental conflict, feeling caught in the middle and experiencing a conflict of loyalty, which placed them in a psychologically impossible position.

Consequently, the court ordered the discharge of previous orders, the issuance of a Recovery Order under section 67U of the Family Law Act 1975 authorising the recovery of the children and their delivery to the father, and that the children live with the father until further order. The mother was restrained from spending time with or communicating with the children, and from attending their schools. The father was ordered to continue counselling with Dr A and comply with his recommendations. The matter was adjourned for an Interim Defended Hearing.