FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wrenley & Wrenley [2023] FedCFamC1F 979
File number: HBC 966 of 2021 Judgment of: MCGUIRE J Date of judgment: 14 December 2023 Catchwords: FAMILY LAW – PARENTING – best interests of the children – with whom the children should live and spend time – where there are allegations by the father of the children being alienated from him by the mother – where there are allegations that the children are at unacceptable risk in the unsupervised care of the father – orders that children live with the mother – orders that the younger children spend unsupervised time with the father – order for relationship therapy for oldest child and the father Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CC(2) and (3), 61DA
Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336, [1938] HCA 34
Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96
G & C [2006] FamCA 994
Isles & Nelissen (2021) 65 Fam LR 1, [2021] FedCFamC 1 295
Isles & Nelissen (2022) 65 Fam LR 288, [2021] FedCFamC1F 295
Mazorski & Albright (2007) 37 Fam LR 518, [2007] FamCA 520
McCall & Clark (2009) FLC 93-405, [2009] FamCAFC 92
Division: Division 1 First Instance Number of paragraphs: 213 Date of last submissions: 9 November 2023 Date of hearing: 23, 24, 25, 26 and 27 October 2023 and 8 November 2023 Place: Launceston Counsel for the Applicant: Mr Williams Solicitor for the Applicant: Glynn Williams Legal Counsel for the Respondent: Mr Trezise Solicitor for the Respondent: McVeity Dean Counsel for the Independent Children’s Lawyer: Mr Verney Solicitor for the Independent Children’s Lawyer: Matthew Verney Barrister ORDERS
HBC 966 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR WRENLEY
Applicant
AND: MS WRENLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
14 DECEMBER 2023
THE COURT ORDERS THAT:
1.All previous parenting Orders be and are hereby discharged.
2.The mother, Ms Wrenley (“the mother”), have sole parental responsibility for the children W born 2010, X born 2013, Y born 2014, and Z born 2019 (“collectively the children”) subject to:
(a)the mother notifying the father in writing or email of any decision that she intends to make regarding the children’s education;
(b)the mother notifying the father in writing or email of any medical decision that she intends to make regarding the children; and
(c)the mother doing all things necessary to ensure that all medical records that pertain to the children note both parents as persons with whom the medical care provider may provide information to regarding the children’s health.
3.These Orders permit the father to attend any school event and/or to have access to the children’s school principal and teachers such is normally available to parents save and except that the father not attend discrete parent/teacher meetings at the same time as the mother.
4.The Independent Children’s Lawyer provide a copy of these Orders to the principal…
Continue reading Wrenley & Wrenley
Sign in free to access the full text
- AGLC
- Wrenley & Wrenley [2023] FedCFamC1F 979
- Case
- [2023] FedCFamC1F 979
- Decision Date
CaseChat Overview and Summary
The legal issues the court had to decide included the capacity of each parent to provide for the children's needs, the practical difficulties and expenses of the children spending time with each parent, and the likely effect of any changes in the children's circumstances, including separation from either parent. Additionally, the court had to consider the children's right to maintain personal relations and direct contact with both parents on a regular basis.
The court found that the father's evidence was misleading and selective, omitting positive aspects of the mother's efforts to maintain a relationship with the father and the children. The mother was found to be an astute and strategic individual, well aware of the court process and willing to avail herself of any advantages. The court concluded that the father's assertion that the children would suffer no negative impact by being removed from their mother was contrary to expert opinion and reflected either a lack of understanding or an effort to be ingenious. The court emphasized the importance of the children's emotional needs and their alignment with their mother, who they have seen their father in only sanitized circumstances and for short periods of time.
The court ordered that the mother have sole parental responsibility for the children, with specific provisions for notification and access for the father. The children were ordered to live with the mother but spend unsupervised time with the father under specified conditions. Additionally, the court mandated relationship therapy for the oldest child and the father, with the father responsible for the costs of the therapy. The court also imposed restrictions on both parents to prevent them from abusing, insulting, or belittling each other in the presence of the children and from discussing the family law proceedings with the children. The appointment of the Independent Children's Lawyer was extended for twelve months. All other applications were dismissed.
Orders
Orders of the court
HBC 966 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR WRENLEY
Applicant
AND:
MS WRENLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
14 DECEMBER 2023
THE COURT ORDERS THAT:
1. All previous parenting Orders be and are hereby discharged.
2. The mother, Ms Wrenley (“the mother”), have sole parental responsibility for the children W born 2010, X born 2013, Y born 2014, and Z born 2019 (“collectively the children”) subject to:
(a) the mother notifying the father in writing or email of any decision that she intends to make regarding the children’s education;
(b) the mother notifying the father in writing or email of any medical decision that she intends to make regarding the children; and
(c) the mother doing all things necessary to ensure that all medical records that pertain to the children note both parents as persons with whom the medical care provider may provide information to regarding the children’s health.
3. These Orders permit the father to attend any school event and/or to have access to the children’s school principal and teachers such is normally available to parents save and except that the father not attend discrete parent/teacher meetings at the same time as the mother.
4. The Independent Children’s Lawyer provide a copy of these Orders to the principal of any school currently attended by any of the children and thereafter each of the parents have leave to provide copies of these Orders to the principals of any schools subsequently attended by the children or any of them.
5. The children live with the mother.
6. The children Y, X and Z spend time with the father Mr Wrenley (“the father’) as follows:
(a) For a period of four (4) consecutive Saturdays between 9.00am and 5.00pm;
(b) Thereafter for two (2) consecutive weeks from Friday at the conclusion of school until Saturday at 5.00pm.
(c) Thereafter and commencing on the second weekend after the end of the time-with pursuant to order 6(b) above, each alternate weekend from Friday at the conclusion of school until Monday at the commencement of school or 9.00am if not a school day.
(d) During all term school holidays in each year but commencing first term holidays in 2024 from the first Friday at the conclusion of school until the second Saturday at 12 noon.
(e) During each Summer school holidays commencing 2024/2025 for periods of three (3) weeks commencing on the Friday of or immediately after the conclusion of the school year in 2024 and in each alternate year thereafter and commencing on 2 January in 2026 and each alternate year thereafter.
7. Weekend time for the children with the father will be suspended during school holidays but not the summer school holidays commencing 2023/2004.
8. All changeovers that do not take place at the children’s schools shall occur at a public venue to be nominated forthwith by the Independent Children’s Lawyer.
9. There be no time-with order regarding the child W born 2010 spending time with the father, but she is to be invited and encouraged to attend time with the father during the spend time arrangements outlined for the children in these Orders and for these purposes the Independent Children’s Lawyer is to meet with W as soon as practicable after the making of these Orders to explain this Order and the Orders generally to W.
10. Forthwith upon the making of these orders the Independent Children’s Lawyer is to nominate a suitably qualified relationships counsellor for W specifically to provide therapeutic counselling in respect of W’s relationship with her father and such counselling to continue at the discretion of the therapist and for these purposes the father be responsible for the costs of the therapy and where it is anticipated that such therapy will directly involve the father, whether together or separate from W, at the discretion of the counsellor and for these purposes the Independent Children’s Lawyer have leave to provide a copy of these Orders and Reasons to any such therapist/counsellor and that the therapist be authorised by these Orders to provide a report, either oral or written, to the Independent Children’s Lawyer at times throughout the Independent Children’s Lawyer’s appointment.
11. Each of the parents, their servants, and their agents be and are hereby restrained by injunction from:
(a) abusing, insulting, belittling, rebuking or otherwise denigrating each other and/or any member of their respective families in the presence of and/or hearing of the children or any of them and from knowingly allowing anybody else to do so; and
(b) discussing these family law proceedings in the presence of and/or hearing of the children or any of them and from knowingly permitting anybody else to do so save in accordance with these Orders.
12. The appointment of the Independent Children’s Lawyer continue for a period of twelve (12) months from the date of these Orders.
13. Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
14. All extant applications, save as to costs, be and are hereby 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.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
I have dealt above with the father’s refusal to accept the mother’s initial offers of time with the children. Similarly, in this sense of “rights” as understood in the Act, he has not taken up the children’s “right” to spend time with him extending to each second weekend and half school holidays as offered by the interim orders of December 2021. Where the mother argues the father’s bona fides in that he does not, in fact, want the responsibility for caring for the children but prosecutes his application only out of spite for the mother then this rather odd position taken by the father gives some credence to the mother’s argument.Section 60CC(3) the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:(i) either of his or her parents; or(ii) any other child, or other person (including any grandparent or other relative of the children), with whom he or she has been living; The father’s evidence in respect of this issue is again difficult to comprehend and perhaps reflects a certain naïveté in his insight and appreciation of the needs of children. His evidence in the witness box was striking where he opined that the children would suffer no negative impact by being removed from their mother with a moratorium on them seeing her for some six months. He thought, however, that as time went by the children might “miss their mother a little”. Put simply, the father’s views are contrary to the almost unanimous position taken by experts who frequently assist these Courts. The facts are that these four young children are very much embroiled in their parents’ dispute. They have lived with and are most probably aligned with their mother. They are imbued with their mother’s negative views of their father. They have seen their father in only sanitised circumstances and for short periods of time. The parents present in the witness box as having different parenting styles and philosophies. To proffer that there might be no negative impact on the children being removed from their mother’s care and denied contact with her shows either an extraordinary lack of sophisticated understanding on the part of the father or an effort in ingenuity by him.Section 60CC(3)(e) the practical difficulty and expense of children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis; Where both parties reside in Region M of Tasmania, this is not a relevant consideration other than the Court limiting the exposure of the children to entrenched and toxic parental dispute in the event of there needing to be changeovers between the parents.Section 60CC(3) the capacity of:(i) each of the children’s parents; and(ii) any other person (including any grandparent or other relative of the children);to provide for the needs of the children, including emotional and intellectual needs;