Wrenley & Wrenley

Case [2023] FedCFamC1F 979

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…

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AGLC
Wrenley & Wrenley [2023] FedCFamC1F 979
Case
[2023] FedCFamC1F 979
Decision Date

CaseChat Overview and Summary

In the matter of HBC 966 of 2021, the Federal Circuit and Family Court of Australia (Division 1) was tasked with determining the best interests of four children, W, X, Y, and Z, born in 2010, 2013, 2014, and 2019 respectively, following the separation of their parents, Mr. Wrenley and Ms. Wrenley. The mother sought sole parental responsibility for the children, arguing that the father presented an unacceptable risk of harm due to past and potential future family violence. The father, on the other hand, argued that the children should live with him and spend unsupervised time with him.

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

The mother proposes that she has sole parental responsibility for the four children and that they continue to live with her. She argues that the children spend no time with their father by reason of him presenting as an unacceptable risk of psychological, and potentially physical harm, arising from past and potential future family violence perpetrated by the father; and/or due to the father’s significant family violence acts allegedly perpetrated upon the mother. The impact upon the mother’s mental health will be so significant, she argues that her parenting capacity will be negatively impacted to such an extent that, on balance, it is not in the children’s interests to have any relationship with the father. BACKGROUND FACTS The father is 58 years of age. He has re-partnered with Ms B who gave an affidavit in these proceedings. The father volunteers on Mondays and Fridays. Ms B is also employed or volunteers at the same service. The father otherwise receives a Centrelink benefit where he claims he is not required to seek employment, although he says he does seek employment in a limited basis within local government. The father continues to reside in the former matrimonial home being a residence owned by his mother, Ms C, at Town D on farming acreage. The farm land is leased or contracted leaving the father to attend to maintenance duties only, but where he says he retains livestock. Ms B lives in Town E being some distance from Town D. She apparently owns a residence and perhaps another in the City F area. She is the carer for her own elderly mother. There is no evidence that the father is otherwise than in good health. The mother lives in Town G being a suburb of City F. She is 37 years of age. She is engaged in home duties. There is no evidence that she has re-partnered in either a dependant or supportive relationship. The mother concedes that she has suffered mental health issues since her teenage years. She cites a dysfunctional family upbringing where she appears to have left home by 16 years of age. She concedes life-threatening attempts and self-harm as a teenager. The mother has been variously employed in administration and in the business. She currently receives Centrelink benefits. She has partially completed tertiary studies. The parties commenced a relationship in 2008 when both were residing at the same address in City J and again in a home owned by the father’s mother. The mother became pregnant. The parties moved from City J to Town D in 2010. The mother says that there were some separations in the relationship. She says that she moved back to City J with the children in 2015 and moved again to the City F area in 2017 with final separation occurring on 10 February 2021. The mother says that during her time living in City J (2015-2017), she would travel with the children to City F during school holidays and long weekends. The mother says between separation in February 2021 and June 2021 the father was disinterested in formal contact with the children including the mother’s proposal for “co‑parenting”. She says that she enlisted the assistance of the paternal grandmother to facilitate the children spending time with the father. Further, she says that on 16 June 2021 she formally proposed that the father spend alternate weekends with children supervised by the paternal grandmother but did not receive a response. It seems that the children commenced spending consistent time with the father at least by September 2021. Supervised time has continued pursuant to the interim orders made by a senior judicial registrar in December 2021.

Evidence

Evidence Before The Court

In its consideration and determination the Court is obliged to make findings of fact. It does so on a standard proof of “on the balance of probabilities” consistent with s 140 of the Evidence Act 1995 (Cth) stemming from the well-known decision of the High Court in Briginshaw & Briginshaw.[4] THE EVIDENCE[4] (1938) 60 CLR 336, [1938] HCA 34.The father The father provided an affidavit affirmed 18 October 2023. The father presented in the witness box as extremely articulate, confident, urbane and polished in his manner. Despite his demeanour, the father was not a good witness. Firstly, his affidavit provides a narrative replete with negativity and criticism of the mother. Cross-examination quickly, however, exposed that affidavit to be selective in its content and notably omitting any commendable or positive, traits of, or behaviour on the part of the mother. Crucially as to the father’s credit, the narrative is misleading in the circumstances of the children in the period following separation on 10 February 2021 where a prima facie reading of that affidavit would indicate that the children were retained by the mother at separation, without his consent and contrary to the father’s intent, and where any reasonable critic might conclude that the mother did not offer contact or communication between the father and children until the father commenced proceedings until months later in mid-2021. The truth and the whole truth says otherwise. The father relied on evidence from his sister, Ms H, and his mother Ms C. Their affidavits similarly offer a chronological narrative absent what has now shown to be, firstly, positive initiatives by the mother to maintain a relationship for the children with the father and paternal grandmother and, secondly, the fact that following separation the father did, in fact, retain possession of the children upon separation but where he voluntarily, on my findings, relinquished the children into the care of the mother. Suffice to say that these lacunae from the father’s affidavit do his evidence generally no credit and I am not satisfied or persuaded by his attempts to explain or justify such omissions from his affidavit material. I prefer that he chose to compose an affidavit emphasising the criticisms of the mother deliberately omitting any factors that might be read to her credit. I make similar observations in respect of the affidavits of his witnesses, his mother and his sister. Similarly, the father was a poor witness in court when subjected to cross-examination. His transparent aim was to shore up his own case and his own asserted attributes whilst being completely negative and, at times, unfairly demeaning of the mother in his criticism of her. Further, when challenged in cross-examination his consistent tendency was, at all times, to deflect blame to the mother. The expert psychiatrist, Dr K, insightfully describes the father as having “an air of grandiosity not matched by his achievements”. I can only defer to the eloquence of Dr K as concurring with my own observations of the father in court.

Decision

Reasons for decision

Given the relevance and importance of the mother’s revelations to the Court, I put to each of counsel for the ICL, the father and the mother for their comment a proposal, obviously not considered in their initial case summaries, that I might make interim orders if ultimately supportive of any orders that have the children living in the primary care of the mother, but spending unsupervised time with the father. Counsel for the mother, again properly as an officer of the Court, and counsel for the ICL were equivocal in their positions but not actively opposed to such a consideration. Obviously, such a matter was not properly the issue for submissions by counsel for the father where he maintains a position, in any event, that the children should be placed into his primary care with a six month moratorium on the children spending time with the mother. Indeed, counsel for the father emphasised the mother’s revelations and challenges to the Courts authority as evidence supporting orders that the Court should place the children into the care of the father by reason of the risks posed by the mother on her own evidence. There is some merit to this argument although, as always, the Court’s ultimate determination is made on a weighing and balancing of a myriad of considerations. FINDINGS AND CONCLUSION I find that the father gave evidence consistent with his personality. He did not attempt to veil or structure his responses in any attempt to please the Court. Rather, he was at all times assertive and confident albeit with an unusual air of grandiosity. He was reluctant to make admissions against interest, but keen at all times to deflect blame to the mother or add gratuitous emphasis to his negative and critical views of the mother. The father’s evidence in court exposed a degree of naiveté as to the needs of young children and particularly their emotional needs where his assertion that the children would suffer no separation anxiety or negative impact by being removed from their mother being demonstrative of such naiveté. Unlike the father, the mother did not give evidence in a forthright manner. Whilst she too was confident, assertive and steadfast in responses in cross-examination, I find the mother to be a contrived strategist. The mother’s affidavit material and her initial entrance into the witness box was superficially that of a timid, frightened and vulnerable female perhaps manifesting the ramifications of family violence as she alleged. However, as her evidence progressed, and while she attempted to maintain such a persona, it became clear to the Court that this mother was astute, and adept in respect of social and government systems, and well aware of the Court process and willing to avail herself of any advantages accordingly. As suggested by the ICL in final submissions, I find that the mother might best be described as a “strategist”. She is intelligent, articulate and, in my view, a person who is Machiavellian in her attitude. Prominent in assisting me towards these conclusions was the mother’s direct challenge to the authority of the Court. These challenges were not made out of any frenzied or spontaneous frustrations but rather were deliberate, considered and formulated.

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;