FAMILY COURT OF AUSTRALIA
| CAGNANI AND ANOR & STANKIC (NO. 2) | [2015] FamCA 1176 |
| FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where the father and paternal grandmother seek orders for increased time with the children – Where the children live with the mother and the father has not spent time with the children in over nine months – Where the mother opposes unsupervised time – Where the mother alleges that the father poses a risk to the children – Where the ICL and single expert support the father having increased time with the children and on an unsupervised basis – Orders made. |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 65AA |
Blinko & Blinko [2015] FamCAFC 146
Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286
Marvel & Marvel (No. 2) (2010) 43 Fam LR 348
| FIRST APPLICANT: | Mr Cagnani |
SECOND APPLICANT: | Ms O Cagnani |
| RESPONDENT: | Ms Stankic |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Baker |
| FILE NUMBER: | SYC | 5204 | of | 2013 |
| DATE DELIVERED: | 24 December 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 22 December 2015 |
REPRESENTATION
| COUNSEL FOR THE FIRST & SECOND APPLICANTS: | Ms Kennedy |
| SOLICITOR FOR THE FIRST & SECOND APPLICANTS: | Vizzone Ruggero Twigg Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Dura |
| SOLICITOR FOR THE RESPONDENT: | Macpherson & Kelley Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Peter Baker Solicitor |
Orders pending further order that:
Unless otherwise agreed, the children, B born … 2002 and C born … 2005, (“the children”) are to spend time with the father and the paternal grandmother on a fortnightly basis as follows:
1.1.In week 1: On Saturday or Sunday (as agreed between the parties) from 11.00 am until 4.00 pm; and
1.2.In week 2: On Monday from after school, or 2.30 pm on a non-school day, until 6.30 pm; and
1.3.At all other times as agreed between the parties.
The father is restrained from taking the children to the former matrimonial home being the property known as and situated at Suburb J, in the State of New South Wales.
Unless otherwise agreed, the time the children spend with the father and the paternal grandmother shall be at the paternal grandmother’s home and the father shall ensure that the only people, in addition to the paternal grandmother, who are present when the father spends time with the children are members of the children’s family or school aged friends of the children.
Unless otherwise agreed, for the purposes of the children spending time with the father and the paternal grandmother on the Monday evening pursuant to Order 1.2 above, the father or the paternal grandmother shall collect the children from the children’s school at the commencement of their time with the children and shall return them to McDonald’s Suburb F.
Unless otherwise agreed, for the purposes of the children spending time with the father and the paternal grandmother during school holidays, weekends and public holidays, the father or the paternal grandmother shall collect the children from McDonald's Suburb F…
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- AGLC
- Cagnani & Anor & Stankic (No 2) [2015] FamCA 1176
- Case
- [2015] FamCA 1176
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the applicants, having been granted leave to amend their statement of claim, should be awarded costs in relation to that application. Specifically, the Court had to consider the principles governing the award of costs when leave to amend pleadings is granted, particularly in circumstances where the amendment introduces new and significant allegations.
McClelland J considered the general rule that costs follow the event, but noted that this rule is not absolute, especially in interlocutory applications. His Honour reasoned that the applicants had been successful in obtaining leave to amend, which suggested they should ordinarily be entitled to costs. However, the Court also took into account the nature of the amendments sought and the potential impact on the litigation. The Court ultimately determined that the costs of the application should be reserved, meaning they would be determined at a later stage of the proceedings, likely at the final hearing, to allow for a fuller assessment of the overall merits and the contribution of the amendment to the final resolution of the case.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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