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 of 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

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

2. 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.

3. 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.

4. 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.

5. 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. 

6. 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.

7. 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.

8. 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.

9. 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.

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

Mr Cagnani

Applicant

And

Ms Stankic

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. These are interim parenting proceedings concerning the parties’ two children:  B, who is 12, and C, who is nine.  Presently, pursuant to orders made by Senior Registrar Campbell on 21 November 2013, they live with their mother.  According to the orders they spend time with their father as follows:

   6.   That the children spend time with the father as follows:

   a.   During school terms from 5.00 pm Friday to 5.00 pm Sunday each alternate weekend provided that during such time the father lives at his parents’ home at [D Street, Suburb E] commencing on 22 November 2013;

   b.   For one week in the second half of the Christmas school holidays in 2013/2014, the precise week to be agreed between the parties or failing agreement the second last week of those school holidays.  That week will commence at 5.30 pm on the Monday and conclude at 5.30 pm on the Monday that next follows;

   c.   From 2.00 pm on 25 December 2013 to 5.00 pm on 26 December 2013;

   d.   In …2014 on each of the children’s birthdays from the conclusion of school to 6.00 pm;

   7.With respect to Orders 6a, 6b and 6c the father shall collect the children from McDonalds [Suburb F] at the commencement of his time with them and return them to McDonalds [Suburb F] at the conclusion of his time with them.

   8.With respect to Order 6d the father shall collect the children from school and return them to the mother at McDonalds [Suburb F] at the conclusion of his time with them.

3. The children have not spent any time with the father since 7 September 2014, when the mother suspended the time they spend with him as she considered them to be at risk if they were with the father. 

4. The father seeks orders that the children spend time with him each alternate week from after school Thursday until before school Tuesday.  That is, he seeks additional time with the children during term time over and above that provided for by the orders of Senior Registrar Campbell.  He seeks that the children spend the Christmas holiday period spending alternate two-week blocks with each parent. 

5. The mother sought an order that proposed the father have limited time with the children on a supervised basis.  In the alternative she proposed the continuation of the orders made by Senior Registrar Campbell. 

6. The Independent Children’s Lawyer (“ICL”) was of the view that the children should spend more time with the father, supporting the order sought by the father for time during school term and proposing week about time with each parent during the coming school holidays. 

7. The parents and the children are being seen by Dr G in December for the purpose of a report being prepared in these proceedings. 

8. The mother asserted that the children were at risk when with the father.  The precise nature of that risk was never clearly identified but the assertion seemed to flow from two matters raised by the mother.  The first was that there was on 29 September 2013 an explosion at the former matrimonial home at Suburb J (“Suburb J property”).  The father’s brother and a friend of his were severely burnt in the explosion, which was subsequently investigated by the police. 

9. On 22 September 2014 a police officer provided the mother with a letter advising her that:

   [Suburb M] Police are currently conducting an ongoing criminal investigation into the apparent clandestine laboratory and explosion. 

10. The father has not been charged with any offence and, he says, has not been interviewed by the police.  The evidence as it presently stands does not persuade me that there is an unacceptable risk that if the children were to spend time with the father they would be exposed to criminal behaviour.  At best, the evidence discloses that a year after the explosion the police are still conducting an investigation into what they suspect might be a clandestine drug laboratory. 

11. The second matter is that following the explosion the father took the children to the damaged premises on some occasions.  The mother’s evidence was that they became upset by this and by seeing the damage to their former home, and by visiting their uncle who was badly burnt in hospital. 

12. On 6 February 2014 the father executed a written undertaking to the court.  It was filed on 11 February 2014 and is in the following terms:

    (1) When the children are in my care they will not attend the property situated at [K Street, Suburb J] in the state of New South Wales, the [Suburb J] property, whether by way of entering the property or the grounds of the property.

    (2) That I will not take the children to the hospital to see my brother [Mr L] and my friend [Mr N].

13. In response to assertions that he had breached the undertaking the father, in an earlier affidavit, denied that he had done so. 

14. Contrary to order 12 made by Senior Registrar Campbell, which was that “Neither party shall interrogate the children about events or conversations in the household of the other parent”, the mother interrogated the children as to whether or not they had been taken to the Suburb J property.  They denied to her that he had done so. 

15. The husband’s and the children’s denials were not true. 

16. On 24 August 2014 the mother received a USB stick containing footage of the father returning the children to the Suburb J property.  The mother would have it that she has no idea who took the footage and that it arrived anonymously at the mother’s letterbox.  She would have it that the video was taken by an anonymous benefactor apparently aware of the court orders and of the undertaking, aware of the husband’s breach, and desirous of providing the mother with evidence to prove breach of the undertaking.  Be that as it may, however, the evidence establishes that the mother cannot trust the father.  Clearly the footage shows him breaching the undertaking and he admitted as much in a subsequent affidavit.  Furthermore, the mother’s evidence is capable of establishing that the children have lied to their mother to protect their father. 

17. Accepting that there is now a complete lack of trust in the father by the mother, that does of itself not establish a risk to the children.  It is understandable that she will feel concerned about whatever he may tell her and what he is doing, having regard to the undertaking, but it does not establish that the children are at risk.  The father’s evidence that he took the children to the property in breach of the undertaking so as to obtain bikes for the children to ride and the like was not challenged, although it is important to bear in mind of course that this is but an interim hearing. 

18. On 21 March 2014 the parties and the children attended a Children and Parents Issues Assessment.  B told the Family Consultant that it is good that she now sees her father regularly, but this is not enough time with him.  She said she would like more time, and suggested four days per fortnight but also equal time with each parent on a week about basis.  She said her father takes good care of her and her sister.  C said that seeing her father every second fortnight was better than before, but the arrangement was not as good as she would like, and she would like more time with her father, and suggested a week at a time with each parent.  The Family Consultant noted that C and B appear to have a warm and comfortable relationship with each parent, that they were very affectionate towards their father, and happy to see him. 

19. The Family Consultant notes that the mother alleged that the father may be involved in drug production and that he had used steroids during the last couple of years of the marriage.  She advised the Family Consultant that as a result of the fire and explosion on the property, a police investigation was continuing.  It is important to note that this was before the mother received the letter from the police officer advising her of the continuing investigation.  That state of knowledge resulted in the mother advising the Family Consultant that if the father is involved with drugs or criminal activity the children may be placed at risk.  The Family Consultant then noted that there was a very poor co-parenting relationship between the parties, with no face-to-face communication between them.  The mother recognised that the children say they want to spend more time with the father but believed that they may be at risk in relation to his possible drug taking and criminal activities. 

20. At paragraph 28 of the memorandum the Family Consultant said: 

    There is currently no communication between the parents about the children and information is passed via the children.  Changeovers have occurred without conflict but the children are still affected by their parents’ lack of communication and mistrust.  Exposure of the children to any family violence places them emotionally and psychologically at risk.  Attempts by the parents to improve information exchange about their children would assist.  If the Court believes that the children would be safe with their father it might be more comfortable for the children if these changeovers occurred at the school on the Friday and the Monday morning.

21. The Family Consultant went on to suggest that it would be helpful if there could be interim orders regarding the school holidays as “it may benefit the children to be able to spend time with their father during this period”.

22. The court is obliged to act in the best interests of the children. In doing so, it will have regard to the considerations set out by section 60CC of the Family Law Act 1975 (Cth) (“the Act”). As just described by the Family Consultant, it appears each of the children has a meaningful relationship with each parent, which will be maintained and supported by regular and frequent contact. It is an important consideration under section 60CC of the Act to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. It goes without saying that children should not be at risk of being involved in drug taking, drug manufacture or other criminal activity.

23. As I have said, the evidence does not establish that the father is involved in criminal activity.  He gives an innocent explanation for the explosion at the Suburb J property.  Whether that is so, or whether the explosion was in fact caused by a clandestine drug laboratory, is not something that can be determined on this interim application.  Given, however, that the police have been investigating the matter for in excess of a year and have not yet interviewed the father in relation to the explosion, it would suggest that the evidence that it was a clandestine drug laboratory is not strong. 

24. It was not the risk of criminal activity but rather the mother learning about the father’s breach of the undertaking that led to the suspension of time.  Although this is an interim application the court must act on the evidence before it.  Taking the evidence of the mother at its highest, I am not satisfied that there is an unacceptable risk of the children being exposed to criminal activity. 

25. The ICL asserted from the bar table but without contradiction that there is a significant history of acrimonious and post-separation conflict between the parents, which has frequently involved the police.  This has resulted in an Apprehended Violence Order (“AVO”) against the father with the mother as the protected person.  There is no suggestion of any violence however directed towards the children.  The conflict between the parents strongly supports eliminating, where possible, face-to-face contact where that can be properly done, and a simple and effective means of doing this is to have the changeovers during term time occur at school.  This would involve the time children spend with their father being extended from 5.00 pm Sunday until before school Monday. 

26. The need to protect the children from physical or psychological harm, from being exposed to abuse, neglect or family violence, would support the court doing what it can to eliminate conflict arising from changeovers and this factor would of itself support extending the term-time time that the children spend with their father until the Monday morning before school.  For the same reason, an order permitting the changeovers to be conducted by way of a nominee at other times would be desirable in attempting to reduce the face-to-face confrontation between the parents. 

1. The children have expressed a strong view to spend more time with their father.  They have done so in the context of having had the opportunity to move between the two households.  At the time they saw the Family Consultant the interim orders made by Senior Registrar Campbell had been in place for some four months.  Given that, and given their ages, their views must be given some real weight.  Each of the children has a good relationship with each of their parents.  For present purposes, the evidence also establishes that they have a good relationship with their paternal relatives, especially the paternal grandparents, which will be facilitated by them spending more time with the father.  Each of the parents spends time and communicates with the children when they can.  The evidence does not point to any adverse consequence from the children if they are to spend more time with the father.  There is no practical difficulty or expense with the orders proposed by the father or by the ICL.  The primary orders proposed by the mother would involve the cost and delay of involving a contact centre. 

2. As discussed above, the attitude of the parents to the children and the responsibilities of parenthood would seem to be questionable in both parents.  The children, notwithstanding the conflict between their parents however, seem to be happy children who enjoy the time they spend with each of their parents and benefit from spending time with each of them.  I bear in mind that this is an interim hearing and that a family report is being prepared by Dr G in December.  No final findings can or should be made. 

3. It is important to recognise that even interim orders should not likely be changed in the absence of a change of circumstances justifying that change so as to prevent repeated applications for interim orders.  I am however satisfied that it is in the interests of the children to spend more time with the father.  The changed circumstances are that they have had time to experience moving between two households and have firmly expressed their views to the Family Consultant.  The current orders are not working in that they bring the parties together face to face at least twice a week at the changeover, which is leading to conflict. This is having an adverse effect on the children. The mother has suspended all time the children spend with their father.  The views of the children are strongly supported by the Family Consultant and the ICL.  As I have said, I am of the view that the evidence does not establish there is an unacceptable risk of harm to the children when with the father.  I am conscious, however, that there remains a dispute as to the final orders and that the hearing should not pre-empt the final determination and disposition of the mother’s case. 

4. It is important to remember that the mother’s primary position is that there should be only supervised time.  However, accepting that it is very much the fallback position of the mother, that fallback position was that the children would spend one week of the school holidays with their father.  If they are not unacceptably at risk for one week I do not see how they would be at an unacceptable risk if that week were repeated over the school holidays.  I am of the view that an order to enable the children to spend some more time with the father, and importantly to minimise the face-to-face contact between the parents is in their best interests. The orders providing for the children to spend time with their father during term time should be extended so that they spend time with their father from after school Friday until before school Monday morning.  I appreciate that it was the recommendation of the Family Consultant supported by the ICL that the father’s application for extension of time from after school Thursday to before school Tuesday should be made.  That however is a matter, in my view, that is more properly dealt with on a final determination and not on an interim application. 

5. During the coming school holidays it is in the best interests of the children to spend time with both parents, and there will be an order that they spend alternate weeks with each parent.  This accords, in my view, substantially with the opinion of the Family Consultant and the submissions of the ICL.  In making that order I take into account the fact that the children have not spent time with their father since September of this year.  They have thus lost at least five weekends of time with the father and this will in some way make up for that time that they have lost. 

6. The father sought a release from the undertaking to which I have already referred.  No real basis was provided for supporting the release from the undertaking other than he had already breached it.  I will not do so.  Undertakings are not to be given or released lightly.  This undertaking was given for a specific purpose.  That purpose remains.  Whether or not the father thought that the mother’s concerns were genuine or not, he regarded them as being of sufficient weight to give an undertaking.  It is not up to him, having given that undertaking, whether or not he complies with it, and his breach of it is not now a ground for setting it aside.  It is important to recognise and for the father to recognise that the mother relied upon this undertaking and his breach of it is a significant breach of trust.  If the father is not aware of it, an undertaking is a serious promise to a court and punishable in appropriate cases by contempt proceedings.  In those circumstances, as I have said, I will not release him from the undertaking. 

7. The father sought orders providing for the children to spend special family times with him.  The terms of the order are not clear and it is not clear from the orders themselves what those special times would be, and sorting those two matters out is likely to be a source of conflict.  Given that this is an interim hearing, and given the preparation of the report by Dr G, I will not make those orders at this stage.  The purpose of these orders is essentially to put in place a regime resulting from the suspension of time the children spend with their father pending the report from Dr G. 

8. Neither party sought orders for parental responsibility.  That is a matter that remains an issue for the final determination.  This, as an interim hearing, is not the appropriate vehicle in the circumstances to determine that issue or to apply the presumption that it is in the children’s best interests for there to be equal shared parental responsibility. 

9. Orders were sought requiring the mother to disclose to the father information in relation to the NRMA policy over the former matrimonial home and for the interests in that policy to be transferred to him.  As to the first, there is already an obligation upon the mother to disclose those matters.  As to the second, I am not satisfied that it is possible to do so, especially in the absence of NRMA as a party.

10. Accordingly I make orders as set out at the commencement of my reasons.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge J delivered on 20 November 2014.

Associate: 

Date:  24 March 2015