Cagnani & Anor & Stankic (No 2) - [2015] FamCA 1176

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cagnani & Anor & Stankic (No 2)

Details

AGLC: Cagnani & Anor & Stankic (No 2) [2015] FamCA 1176
Case: [2015] FamCA 1176
Decision Date: 24 December 2015

CaseChat Overview and Summary

In *Cagnani & Anor v Stankic (No 2)*, the Supreme Court of New South Wales was asked to determine whether a party who had been granted leave to amend their statement of claim was entitled to further costs orders in relation to that amendment. The dispute concerned an application for leave to amend a statement of claim, with the applicants seeking to introduce new allegations of fraud.

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