CAGNANI & STANKIC - [2014] FamCA 1216

FAMILY COURT OF AUSTRALIA

CAGNANI & STANKIC

[2014] FamCA 1216

FAMILY – CHILDREN – Interim parenting – Where the father makes an application for increased time with the children – Where the children live with the mother – Where the mother opposes unsupervised time with the father – Where the mother alleges that the father poses a risk to the children – Where the ICL supports increased time with the father – Where the children have expressed a view to spend more time with the father.

Family Law Act 1975 (Cth) s 60CC

APPLICANT:

Mr Cagnani

RESPONDENT:

Ms Stankic

INDEPENDENT CHILDREN’S LAWYER:

Ms Baker

FILE NUMBER:

SYC

5204

2013

DATE DELIVERED:

20 November 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

17 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Kennedy

SOLICITOR FOR THE APPLICANT:

Vizzone Ruggero Twigg Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Dura

SOLICITOR FOR THE RESPONDENT:

Macpherson & Kelly Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Peter Baker Solicitor

Orders

That I discharge Orders 6, 7 and 8 made by Senior Registrar Campbell on 21 November 2013.
That, pending further order of the Court, the children, B born … 2002 and C born … 2005, are to spend time with their father as follows:
(a)During school terms from the conclusion of school on Friday to the commencement of school on the following Monday each alternate weekend provided that during such time the father lives at his parent’s home at D Street, Suburb E. Such time is to commence on Friday 21 November 2014 with the father to collect and deliver the children to and from school.
(b)During the school holidays from 4.00 pm on the first Saturday after the conclusion of the school term until 4.00 pm the following Saturday and thereafter each alternate week from 4.00 pm Saturday until 4.00 pm the following Saturday.
(c)In … 2015 on each of the children’s birthdays from the conclusion of school or 3:00 pm on a non-school day until 6.00 pm.
That, in the event one of the childrens’ birthdays falls on a day they are spending time with their father, the children shall spend time with their mother from 3.00 pm until 6.00 pm that day and the time the children are to spend with the father shall be suspended for those 3 hours.
That notwithstanding the above orders, the children are to spend time with the mother from 12.00 noon on 24 December 2014 until 2.00 pm on 25 December 2014 and with the father from 2.00 pm on 25 December 2014 until 5.00 pm on 26 December 2014.
That, where changeover does not occur at school, the father shall collect the children from the mother at McDonalds Suburb F at the commencement of his time with them and return the children to the mother at McDonalds Suburb F at the conclusion of such time.
That each party may nominate a person to act for them to deliver and collect the…

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 & STANKIC

Details

AGLC: CAGNANI & STANKIC [2014] FamCA 1216
Case: [2014] FamCA 1216
Decision Date: 20 November 2014

CaseChat Overview and Summary

In the matter of CAGNANI & STANKIC, Aldridge J of the Federal Circuit Court of Australia made orders concerning the time spent by the children, B and C, with their parents. The dispute involved arrangements for the children's time with their father, including specific provisions for school terms, school holidays, birthdays, and Christmas. The court also addressed the appointment of a single expert witness to report on matters relating to the children, and ordered hair strand testing and random urinalysis testing for the father.

The court was required to determine the appropriate parenting arrangements for the children, B and C, and to address concerns regarding the father's potential drug use. This involved establishing a detailed schedule for the children's time with each parent, appointing an independent expert to provide a report on the children's best interests, and mandating specific drug testing for the father. The court also considered the provision of information regarding family counselling and dispute resolution services.

Aldridge J discharged previous orders made by the Senior Registrar and established new time arrangements for the children with their father, contingent on his residence at a specific address. The court appointed Dr G as a single expert witness, granting the Independent Children's Lawyer access to subpoenaed material for the expert's use. The father was ordered to undertake supervised hair strand testing for illicit substances and random urinalysis testing, with the costs to be borne by him. The court also directed that information regarding family services be provided to the parties.

Orders

Orders of the court

That I discharge Orders 6, 7 and 8 made by Senior Registrar Campbell on 21 November 2013.

That, pending further order of the Court, the children, B born … 2002 and C born … 2005, are to spend time with their father as follows:

(a) During school terms from the conclusion of school on Friday to the commencement of school on the following Monday each alternate weekend provided that during such time the father lives at his parent’s home at D Street, Suburb E. Such time is to commence on Friday 21 November 2014 with the father to collect and deliver the children to and from school.

(b) During the school holidays from 4.00 pm on the first Saturday after the conclusion of the school term until 4.00 pm the following Saturday and thereafter each alternate week from 4.00 pm Saturday until 4.00 pm the following Saturday.

(c) In … 2015 on each of the children’s birthdays from the conclusion of school or 3:00 pm on a non-school day until 6.00 pm.

That, in the event one of the childrens’ birthdays falls on a day they are spending time with their father, the children shall spend time with their mother from 3.00 pm until 6.00 pm that day and the time the children are to spend with the father shall be suspended for those 3 hours.

That notwithstanding the above orders, the children are to spend time with the mother from 12.00 noon on 24 December 2014 until 2.00 pm on 25 December 2014 and with the father from 2.00 pm on 25 December 2014 until 5.00 pm on 26 December 2014.

That, where changeover does not occur at school, the father shall collect the children from the mother at McDonalds Suburb F at the commencement of his time with them and return the children to the mother at McDonalds Suburb F at the conclusion of such time.

That each party may nominate a person to act for them to deliver and collect the children at changeover, provided the nomination is in writing and the nominee is acceptable to the other party.

That pursuant to Rule 15.45 of the Family Law Rules the Court appoint Dr G (“the Single Expert Witness”) to interview, enquire into and report upon matters relating to the children of the marriage namely B born on … 2002 and C born on … 2005.

That leave be granted to the Independent Children’s Lawyer to have photocopy access to material produced under subpoena for the purpose of providing it to the Single Expert Witness and that the fees in respect of that photocopying be waived. Such material is to remain in the custody and control of the Single Expert Witness and not to be shown to nor copies made for any other persons without further leave of this Court.

That the parties must attend the interview with the Single Expert Witness at times and dates as advised by the Single Expert Witness and the parent with whom the children are living at that time must ensure the children attend the interview at the required time and date as requested by the Single Expert Witness.

10.

That each party comply with all requests by the Independent Children’s Lawyer to facilitate the preparation of such report.

11.

That the parties each sign all authorities and consents necessary to enable the Single Expert Witness to obtain copies of any medical reports, doctor’s records or hospital notes which the Single Expert Witness may consider relevant in order to prepare the Report.

12.

The cost of the Single Expert Witness will be met equally by the mother and the father with the father to meet the payment in the first instance and the mother to reimburse one half of the cost of the Single Expert’s Report upon the conclusion of the property proceedings.

13.

That the matter be listed for further directions upon the release of Dr G’s Report.

14.

That the father undertake hair strand testing (under supervision and chain of custody procedures set out in the documents from Forensic Science SA annexed hereto and marked with the letter “A”) for the purpose of detecting historical ingestion of illicit substances in accordance with the following procedure:

(a) The mother’s solicitor by 20 November 2014 arrange for a hair testing kit from Forensic Science SA to be sent to Dr H of I Clinic at Suburb F, and shall advise the father’s solicitor in writing of compliance with such order.

(b) The father is to attend upon Dr H to submit to the collection of a hair strand, including the hair bulb, of not less than 3cm (NOTE: 1cm = about 1 month of review) by 30 November 2014 and the mother’s solicitor shall use her best endeavours to cause Dr H to return the sample to the laboratory for testing of all drug types and classes and the father’s solicitor shall advise the mother’s solicitor in writing that within twenty-four (24) hours of having provided the hair follicle sample that he has done so.

(c) That pending the date the father provides the hair strand pursuant to Order 14 (b) hereof, the father be restrained from cutting or dyeing his hair.

(d) The father irrevocably authorise Forensic science SA to send its report to the mother’s solicitor, the father’s solicitor and the Independent Children’s Lawyer within seven (7) days of such report being completed.

(e) The father shall be responsible for payment of all fees associated with the conduct of the tests through Forensic Science SA and the father shall pay the invoice from Forensic Science SA within forty-eight (48) hours of it being provided to the father’s solicitor.

(f) That leave is granted to the mother’s solicitor to provide a copy of these Orders to Dr H and to Forensic Science SA.

15.

That the father undertake random drug urinalysis testing, upon request by the Independent Children’s Lawyer and the father shall bear the cost of such testing.

16.

That pursuant to s 62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

17.

That pursuant to s 65DA(2) 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 are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

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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