CAGNANI & STANKIC

[2015] FamCA 934

FAMILY COURT OF AUSTRALIA

CAGNANI & STANKIC [2015] FamCA 934

FAMILY LAW – PARENTING – INTERIM PROCEEDINGS – Application by paternal grandparents to spend time with the children – Where the paternal grandfather is critically ill – Whether the paternal grandparents’ time with the children should be supervised – Whether the father should be allowed to be present during such time – Consideration of s 60CC – Paternal grandparents to spend time with the children unsupervised with the father not to be present at their residence.

Family Law Act 1975 (Cth) ss 60B, 60CC, 64B

Banks & Banks [2015] FamCAFC 36

APPLICANTS: Ms O Cagnani and Mr P Cagnani

RESPONDENT: Ms Stankic

INDEPENDENT CHILDREN’S LAWYER: Mr Baker

FILE NUMBER: SYC 5204 of 2013

DATE DELIVERED: 7 October 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 7 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Ms Kenney

SOLICITOR FOR THE APPLICANT: 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

THE COURT ORDERS BY CONSENT THAT:

1. Orders and notations are made in terms of paragraphs 1 to 7 of a document titled “Consent Orders” dated 7 October, filed herein as set out hereunder:

1.1.The mother shall cause the children to:

1.1.1.Attend the funeral service of the paternal Aunt, [Ms Q Cagnani] on 8 October 2015 at [R Church, Suburb S]; and

1.1.2.Attend the wake of [Ms Q Cagnani] at the [T Cafe, Suburb U].

1.1.3.The children shall be permitted to sit with the father and paternal grandparents and participate in the service if the children wish to do so.

1.2.For the purpose of 1.1.1 above, the mother shall deliver the children to [Ms V] at McDonald’s [Suburb F],  by no later than 8.30am on 8 October 2015 and [Ms V]  shall return the children to the mother at [Y Café] ([Suburb S]) immediately after the funeral cars leave the church to proceed to the burial.

1.3.For the purpose of 1.1.2 above, the mother shall deliver the children to [Ms V] at 2.30pm unless otherwise communicated at [T Café], [Suburb U] and [Ms V] shall return the children to the mother at [W Café] on [X Street] at [Suburb S] at 4.00pm unless the children contact the Mother prior to that time seeking to be collected earlier.

1.4.The Father and the paternal grandparents shall be restrained from accompanying [Ms V], or causing any other person to accompany [Ms V] to collect/return the children pursuant to Orders 1.2 and 1.3 above.

1.5.The father and the paternal grandparents shall be restrained from discussing the proceedings with the children and shall do all things necessary to ensure that no other person discusses the proceedings with the children.

1.6.The father and the paternal grandparents shall not take [B’s] mobile phone from her during their time with her.

1.7.The father and the paternal grandparents warrant that [Ms V] is aware of the Orders to be made and agrees to participate in the changeover of the children.

1. The respondent’s legal representative is to provide a certified typescript of the document titled “Consent Orders” to my chambers within 7 days.

THE COURT FURTHER ORDERS PENDING FURTHER ORDER THAT:

1. The children, B born … 2002 and C born … 2005 (“the children”),  are to spend time with the paternal grandparents as follows:

3.1.each Sunday from 11.00 am  to 4.00 pm; and

3.2.at all other times as agreed between mother and the paternal grandparents.

1. For the purpose of Order 3 above, changeover of the children is to take place at MacDonald’s at Suburb F or at such other place as may be agreed between the mother and the paternal grandparents.

1. The mother is to do all acts and things necessary to allow children reasonable telephone contact with the paternal grandparents at times when the children are not spending time with the paternal grandparents. 

1. The paternal grandmothers may delegate the changeover responsibility referred to in Order 4 above, to such other person (or persons) as may be agreed to by the mother and the paternal grandmother, provided the mother is notified of any and on each occasion when such other person/s other than the paternal grandmother will be transporting the children to and from changeover and provided the mother consents to that occurring.

2. The father is not to be in attendance at the paternal grandparents’ residence at such times when the children are spending time with the paternal grandparents.

3. The parties are granted leave to relist the matter on 48 hours’ notice to my chambers and to the other party.

4. The time for compliance with Orders 1, 2, 3 and 4 of the Orders made on 14 August 2015 is extended to 10 December 2015.

THE COURT NOTES THAT:

A.     The paternal grandparents have undertaken to ensure that the father is not in attendance at their home when the children are spending time with them.

B.     The Court reserves the right of all parties to revisit any issue which is the subject of these Orders when the matter is next listed on 6 November 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cagnani & Stankic has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5204 of 2013

Ms O Cagnani and Mr P Cagnani

Applicants

And

Ms Stankic

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter concerns an application by the paternal grandparents for the two children of the marriage, B born in 2002 and C born in 2005 (“the children”), to spend time with the paternal grandparents (“the grandparents”), pursuant to section 65C(ba) of the Family Law Act 1975 (Cth) (“the Act”). The orders sought by the grandparents are to the effect that the children spend time with them from 10.00 am until 5.00 pm on Sunday. In discussions with counsel, however, it was acknowledged that a shorter period of time, between 11.00 am and 4.00 pm, would be appropriate.

2. The mother consents to the children spending time with the grandparents, but submitted that, pending the further listing of the matter on 9 November 2015, the children should spend time with the grandparents for two weekends on Sunday, 18 October 2015, and on Sunday, 25 October 2015, for a period of four hours on each occasion. 

3. The mother also proposes that the father be permitted to be present when the children visit the grandparents.  However, the mother proposes that the visits be supervised.  The mother has offered to pay the costs of the supervision of the visits over the two weekends.

4. The essential points of difference between the parties, therefore, are in respect to the frequency of the visits, the length of time of the visits, whether the father is in attendance during the visits and whether the visits are supervised. 

5. The grandparents propose visits every weekend on the basis that the children’s grandfather is critically ill and has a limited life expectancy. For that reason, the grandparents also oppose the visits being supervised. The grandparents’ counsel advised the Court that the paternal grandfather is critically ill and spends most of his time in pyjamas and wears a colostomy bag. The grandparents feel that the attendance of a supervisor would be an unnecessary interference in the relationship that they have with the children.

6. The Independent Children's Lawyer believes that such supervision is unnecessary and has, in my view, correctly identified the issue before the Court as being an application by the grandparents for the children to spend time with them. Accordingly, the Independent Children’s Lawyer argues that the focus of the Court’s consideration should be on the time the children spend with the grandparents, and not the time with the father. In those circumstances, it was submitted that supervision of the children’s time with the grandparents is unnecessary.

7. All parenting proceedings are to be determined in accordance with Part VII of the Act. Parenting orders are defined in section 64B of the Act. Section 64B(2) sets out what parenting orders may deal with and includes in subsection 64B(2)(b) the time that a child is to spend with another person. The section makes it quite clear that that other person can be a grandparent, or grandparents, of the child.

8. The objects of Part VII are set out in section 60B and include, in subsection (2)(b), that the children have the “right to spend time on a regular basis with, and communicate with on a regular basis with, both their parents and other significant people relevant to their care, welfare and development, such as grandparents and other relatives”. 

9. The overarching principle for parenting orders is found in section 60CA of the Act, which states that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.

10. Section 60CC sets out the relevant considerations, to which the Court should have regard, in arriving at a determination as to what is in the best interests of the child.  In Banks & Banks [2015] FamCAFC 36, the Full Court outlined a common sense approach in applying section 60CC and essentially said that, while the Court is required to have regard to all of the factors set out in section 60CC, it is unnecessary to comment on each of those factors, and, indeed, to do so may result in the judicial officer “[losing] sight of the forest for the trees”.[1]

    [1] Banks & Banks [2015] FamCAFC 36 at [49].

11. I have considered all the matters relevant to this matter in terms of the section 60CC considerations.  Of greatest relevance to my determination of this matter is the importance of the children to maintaining a close relationship with significant people in their lives, including, in this case, most relevantly,  their grandparents as noted section 60CC(3)(b)(ii). 

12. As against that, I am required to have regard to the section 60CC(2) factors which are described as the primary considerations, and include the benefit of the child having a meaningful relationship with both of the child’s parents, and also the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.  If there is any balancing of the application of those two principles, greater weight is to be given to the need to protect the child from physical or psychological harm.

13. The mother suggests that it would be appropriate for the father to be in attendance when the children meet with the grandparents, and in that sense, the submission is entirely consistent with section 60CC(2)(a), that is, maintaining a meaningful relationship with the father.  I have given consideration to that submission, however as indicated, I agree with the Independent Children's Lawyer that the issue before the Court today is the issue of the children spending time with the grandparents. The issue of the children spending time with the father will be dealt with at the next court event on 9 November 2015.

14. It is therefore necessary to deal with the issue of risk.  The mother’s counsel argued that there was a risk that the father would not comply with any orders or other undertakings proffered by the grandparents, regarding his non-attendance when the children visit the grandparents. In that respect, I have been referred to various passages from the report of Dr G, the Court appointed single expert, where she has expressed some concern about the father’s non-compliance with certain orders of the Court.

15. Nonetheless, I note the undertaking of the grandparents that, on the basis that supervision is not required,  the persons who would be in attendance when the children visit will be themselves and potentially other paternal relatives of the children, but will not include the father. 

16. On that basis and on the basis that I will include an order, as suggested by the Independent Children's Lawyer, that the father not be in attendance when the children visit the grandparents, I will make orders essentially in accordance with those proposed by the grandparents.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 7 October 2015.

Associate: 

Date:  30.10.2015