Stankic and Cagnani & Anor
[2017] FamCA 213
•10 January 2017
FAMILY COURT OF AUSTRALIA
| STANKIC & CAGNANI AND ANOR | [2017] FamCA 213 |
| FAMILY LAW – CHILDREN – Orders by Consent - With whom a child lives – With whom a child spends time - With whom a child communicates – Orders that children live with the mother and spend time with the father and paternal grandmother FAMILY LAW – CHILDREN - Orders by determination – Orders that mother have sole parental responsibility for the children – Order that father spend holiday time with the children - Injunctive orders |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Stankic |
| FIRST RESPONDENT: SECOND RESPONDENT: | Mr Cagnani Ms O Cagnani |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Baker |
| FILE NUMBER: | SYC | 5204 | of | 2013 |
| DATE DELIVERED: | 10 January 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 10 January 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Dura |
| SOLICITOR FOR THE APPLICANT: | McPherson & Kelly Lawyers |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Richards |
| SOLICITOR FOR THE 1ST RESPONDENT: | Vizzone Ruggero Twigg |
| COUNSEL FOR THE 2ND RESPONDENT: | Mr Richards |
| SOLICITOR FOR THE 2ND RESPONDENT: | Vizzone Ruggero Twigg |
| COUNSEL FOR THE INDEPENDENT CHILDRENS LAWYER | Ms Falloon |
| SOLICITOR FOR THE INDEPENDENT CHILDRENS LAWYER | Peter Baker Solicitors |
Orders
Orders are made:-
(a)BY CONSENT in accordance with the minute of consent order attached (orders 1 to 17.2 and 17.4 to 27 and 41); and
(b)BY DETERMINATION orders 17.3 and 28 to 40.
BY CONSENT the father has parental responsibility to obtain information from schools or health professionals, for the children, which would otherwise ordinarily be available to a parent.
IT IS FURTHER ORDERED
BY DETERMINATION
Each of the parties be and are permitted to attend all normal school activities to which parents would generally attend (with the exception of parent/teacher interviews which in the case of the father would need to be by arrangement, separately with the teachers) and all normal weekend extra-curricular sporting activities.
In relation to consent orders 36 and 27 IT IS FURTHER ORDERED:-
(a)the children’s passports, when issued, shall be forwarded or returned to the mother; and
(b)when any such passport or passports are to be used for overseas travel by the father with the child or children, such passport/s will be given to the father seven (7) days in advance of such travel and returned to the mother within seven (7) days following the return of the children from such travel.
Both parties be and or restrained from obtaining a passport for the children or either of them for any country other than Australia in accordance with these orders.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS REQUESTED
A hard-copy of the minute of order be available to me tomorrow to include the consent order made this morning so the order can be formalised either tomorrow or Friday.
IT IS DIRECTED
A copy of the reasons for these orders be taken out and placed on the court file and such reasons not be published.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
By the Court
The Honourable Justice Benjamin
Exhibit “1”
Final Parenting Orders
All previous parenting Orders be discharged.
The children B born … 2002 and C born … 2005 (“the children”) live with the Mother at all times other than when spending time with the Father and Paternal Grandmother in accordance with these Orders.
The Mother have sole parental responsibility for the children.
In the exercise by the Mother of sole parental responsibility for the children, in the event that the Mother proposes to make a decision that affects the long term care, welfare and/or development of the children the Mother provide the Father with not less than 42 days prior written notice of the following:-
4.1her intention to make a decision and the nature of the decision;
4.2the date upon which the decision is to take effect;
4.3the reasons/basis for the decision that is intended to be made; and
4.4the details of any professional that the Mother has consulted in relation to the decision she proposes to make.
Notwithstanding Order 4 above, the Mother is restrained from doing any act or thing to change the surname of the children.
The children spend time with the Father and the Paternal Grandmother during school term on a fortnightly basis as follows:
6.1.Each alternate weekend from the conclusion of school on Friday, or 3pm in the event of a non-school day, to the commencement of school on Monday, or in the event Monday is a public holiday to the commencement of school Tuesday; and
6.2.At all other times as agreed between the parties.
Unless otherwise agreed for the purposes of the Father spending time with the children in accordance with these Orders:-
7.1The changeover venue on school days shall be the children’s school, and on non-school days McDonalds at Suburb F;
7.2The Mother shall ensure that Mr Z does not attend a changeover venue; and
7.3The Father or Paternal Grandmother shall be responsible for collecting the children from and delivering them to school or McDonalds Suburb F as required.
Notwithstanding any other Order, in even numbered years the children are to spend time with the Father and the Paternal Grandmother from midday Christmas Eve until midday Christmas Day and with the Mother from midday Christmas Day until midday Boxing Day.
Notwithstanding any other Order, in odd numbered years the children are to spend time with the Mother from midday Christmas Eve until midday Christmas Day and with the Father and the Paternal Grandmother from midday Christmas Day until midday Boxing Day.
9.A. Notwithstanding any order to the contrary, on even numbered years the children are to spend time with the Father from 10:00am Easter Saturday to 4:00pm Easter Monday and on odd numbered years the children are to spend time with the Mother from 10:00am Easter Saturday to 4:00pm Easter Monday.
Notwithstanding any other Order the children are to spend time with the parties on each of the children’s birthdays as follows:
10.1.If either child’s birthday falls on a day the children are with the Mother, the children are to spend time with the Father from the conclusion of school, or 3:00pm on a non-school day, until 6:00pm; and
10.2.If either child’s birthday falls on a day the children are with the Father, the children are to spend time with the Mother from the conclusion of school or 3:00pm on a non-school day until 6:00pm.
Notwithstanding any order to the contrary the children are to spend time with the Mother from 9:00am Mother’s Day to commencement of school Monday or 9:00am if Monday is not a school day.
Notwithstanding any order to the contrary the children are to spend time with the Father from 9:00am Father’s Day to commencement of school Monday or 9:00am if Monday is not a school day.
Within 7 days of the making of these Orders the Mother and Father shall each do all acts and things and sign all documents necessary to finalise/confirm the enrolment of the children at UU School, and thereafter cause the children to continue to attend UU School for the duration of their secondary education, subject to the Father complying with Order 24 below, or any further Order of the Court or agreement between the parties.
Notwithstanding any order to the contrary, each of the parties are to do all acts and things to ensure that the children attend with the Mother each year the ‘State and National representative [sports] competitions’, and the Mother shall provide the dates of any such competitions to the Father as soon as practicable after she receives them.
Within 28 days from the date of these Orders the Mother shall provide the Father with a schedule of all extra-curricular activities in which she expects the children will participate in 2017, and thereafter give the Father not less than one month’s notice of any change in the schedule, and each parent shall ensure that the children attend the scheduled activities while in his/her care.
Each of the parties shall be permitted to have reasonable telephone/SMS/FaceTime/Skype or other electronic contact with the children whilst the children are in the care of the other parent, at times initiated by the children, provided that any telephone conversation is permitted to come to its natural conclusion when the children wish to terminate the call and:
16.1.Each parent will make the children available to take the telephone call and will permit the children to speak privately and uninterrupted; and
16.2.If a call is missed, the parent having care of the children at that time shall ensure that the children make a return call to the other parent as soon as practicable.
The Mother, Father and Paternal Grandmother be restrained from:
17.1.Denigrating one another or members of the other’s family in the presence and/or hearing of the children or either of them;
17.2.Discussing the proceedings with the children, and each of them shall do all things necessary on his/her part to ensure that no other person discusses the proceedings with the children;
17.3.Consuming illicit substances and/or steroids while the children are in their respective care; and
17.4.Interrogating the children or either of them in relation to events and or conversations that have occurred in the home of the other parent.
17A.Each of the Mother and Father shall keep the other informed of their current email address, employment address, residential address and contact phone number.
From the date of these Order until 9 July 2018, the Mother may request the Father to submit to urinalysis testing in accordance with the standard AS/NZS 4308:2008, and the Father shall:
18.1Comply with the request by providing a sample within 36 hours of receipt of such request; and
18.2Provide the test result to the Mother within 48 hours of receipt.
Notwithstanding Order 18 above, the Mother shall not make a request between 4pm on a Thursday and 8pm on a Saturday, and such request shall not be made more frequently than once in each 3 month period unless the Father returns a positive test result.
For the purposes of Orders 18 and 19 above, the requests by the Mother shall be made by way of telephone text message to the Father’s mobile number … and shall be deemed to have been received within four hours of being sent.
In the event that either of the children becomes ill and/or is injured and in need of medical treatment, the parent who has the care of that child at that time is to:
21.1.Notify the other parent, by way of telephone text message, as soon as practicable; and;
21.2.Provide the other parent with all relevant information including the address, contact telephone number and name of the treating hospital, medical centre and/or treating practitioner.
Pursuant to s.62B of the Family Law Act, 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.
Pursuant to s.65DA(2) of the Family Law Act, 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.
Child Support
Pursuant to section 124 of the Child Support (Assessment) Act 1989, and in addition to any periodic child support the Father is to pay to the Mother in accordance with any assessment issued by the Child Support Registrar from time to time, the Father shall pay by way of non-periodic child support, as and when they fall due, all tuition fees and costs associated with the children’s attendance at UU School and shall indemnify the Mother, and forever keep her indemnified, with respect to such expenses.
The non-periodic payments made by the Father pursuant to the preceding Order shall not be set-off, or deducted, from any amount/s the Father is assessed to pay to the Mother in accordance with any assessment issued by the Child Support Registrar from time to time.
Pursuant to section 124 of the Child Support (Assessment) Act 1989, and in addition to any periodic child support the Mother may be required to pay to the Father in accordance with any assessment issued by the Child Support Registrar from time to time, the Mother shall pay by way of non-periodic child support, as and when they fall due, all costs associated with any extra-curricular activities that the children are enrolled to participate in and attend.
The non-periodic payments made by the Mother pursuant to the preceding Order shall not be set-off, or deducted, from any amount/s the Mother is assessed to pay to the Father in accordance with any assessment issued by the Child Support Registrar from time to time.
IT IS FURTHER ORDERED FOLLOWING HEARING AND BY DETERMINATION
In addition to Orders 4.1. to 4.4 in the exercise of sole parental responsibility by the Mother, the Mother shall take into consideration any views expressed by the Father in a timely manner.
The Father shall be entitled to receive information from health care professionals in relation to treatment or proposed treatment of the children or either of them and information from the children’s school that parents normally receive, namely school reports, newsletters, and the like.
Each of the parties be restrained from remaining and/or loitering and/or approaching within 100 metres the other party’s home or place of work.
Commencing from the school holidays following the conclusion of Term 1, 2017, the children shall spend half of each school holiday with the parents as follows:-
31.1With the Father for the first half in years ending in an odd number and the with the Mother in the second half in years ending in an odd number;
31.2With the Mother for the first half in years ending in an even number and with the Father in the second half in years ending in an even number provided that when the children are spending time with the Father in the second half of any such school holiday period the children the Father’s school holiday shall conclude on, and the children returned to the Mother, three nights prior to the commencement of the next school term
For the purpose of calculating school holiday time, the holiday period shall:
32.1.Commence at 5:00pm on the last day the children are required to attend school
(“the last day”);32.2.Conclude at 5:00pm on the day before the children’s first day back at school
(“the first day”);and ‘half’ of the school holiday period shall commence at midday on the middle day between the first and the last day.
Notwithstanding the calculation of half of the school holidays in accordance with this formula, the children shall be returned to the Mother three days before the first day back at school in years ending in an even number when they are spending the last half of the holidays with the father.
For the purposes of the Father’s time with the children pursuant to Order 6 above resuming following a school holiday period, when the children have spent time with the Father for the first half of the preceding school holiday period, Order 6.1 shall resume on the first weekend of the new school term and when the children have spent time with the Father for the second half of the preceding school holiday period, Order 6.1 shall resume on the second weekend of the new school term.
Each party shall be permitted to attend all normal school events that parents normally attend except parent/teacher night when the Father is to attend by separate appointment and all normal extra-curricular weekend sporting activities.
Each of the parties shall be at liberty to travel with the children during the time the children are in their care provided that the party wishing to travel with the children does the following:-
35.1In the event of overseas travel, notify the other parties in writing no less than six (6) weeks in advance of the proposed departure date; and
35.2In the event of all other travel, notify the other parties in writing no less than two (2) weeks in advance of the proposed departure date; and
35.3Forward to the other party:-
35.3.1 A detailed itinerary to be provided before departure;
35.3.2 A list of contact details; and
35.3.3 A copy of the airline tickets and other travel documents; and
35.3.4Proposed times for telephone contact with all such information to be provided to the other party as soon as practicable.
The Mother and Father do all acts and things and sign all documents necessary to ensure that the children’s Australian passports are renewed at least six (6) months prior to expiration and such costs will be shared equally between the parties and the passport authority is to issue the passports to the Mother.
The children’s passports are to be retained by the Mother.
Upon the travelling party complying with Order 35 above, the Mother shall release the children’s passports to the Father seven (7) days prior to the proposed departure date and the Father shall return the children’s passports to the Mother within seven (7) days of returning from such travel.
Each of the parties shall be restrained from obtaining or causing the children to be issued with a passport from another country of origin to which they would be entitled to reason of ancestry without the written consent of the other party.
The children spend time with the Father until the commencement of Term 1, 2017 as follows:
40.1. From 9:00am to 5:00pm on 16 January 2017;
40.2. From 12noon on 21 January to 5:00pm on 24 January 2017.
The Paternal grandmother be removed from the proceedings.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stankic & Cagnani and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 5204 of 2013
| Ms Stankic |
Applicant
And
| Mr Cagnani |
First Respondent
And
Ms O Cagnani
Second Respondent
EX TEMPORE REASONS FOR JUDGMENT
These are proceedings between Ms Stankic, (‘the mother’), Mr Cagnani, (‘the father’), and Ms O Cagnani (‘the paternal grandmother’). They relate to two children: B, who was born in 2002 and who will soon celebrate her 15th birthday, and C, who was born in 2005 and will soon to celebrate her 12th birthday. The matter was listed before me for property and parenting hearing this week to run for five days. Each of the parties provided significant evidence in the form of affidavit material deposed by themselves and their supporting witnesses. I also have evidence of Dr G in relation to two reports that she prepared.
The parents, to their credit, spent the first day of the hearing trying to resolve the parenting issues with regard to their children, and given the evidence which I have read and given the reports of Dr G,[1] that was a sensible course. These children have been the subject of conflict for a long period of time, and it is time that such contact came to an end. I will take it that each party has moved a little bit in one direction or another to enable that to be put in place. There were a number of issues which had not been resolved, and counsel for both of the parties and the Independent Children's Lawyer each submitted to me that I should deal with these issues by way of oral submission.
[1] First Report dated 9 February 2015 and the second report dated 17 December 2015.
I have adopted that course, and I am empowered to do that having regard to the provisions of Division 12A of the Family Law Act 1975 (Cth), and I do do so. I do not intend to make findings of credit in relation to either of the parties for a number of reasons: The first being that their evidence has not been tested; the second being that I still have to hear the property proceedings, and I may, if I adopt that course, impeach that process, and I do not think that is anything either of the parties want to occur. However, I cannot make a decision like this in a vacuum. So I have had regard to the evidence, and I have had regard to what each of the parties has said.
I have had regard to the statements which appear to have been made by the children to the expert. I have also had regard to the circumstances of these children in terms of the conflict between their parents and the lack of trust which exists. If I can address each of the parents directly, let me say this: courts are really good at chopping up time. We do it all the time. We organise a minute here and a minute there and a day here and a day there, and we write really pretty orders. That often does not solve the conflict because at some stage you have to be able to talk civilly and respectfully of each other without bullying each other, without pushing each other and find solutions.
We cannot impose that upon you, and unless there is some civil communication, and I am not making findings at this stage one way or the other, these children will lose more of their childhood. Can I say this, also, to you: that these seem pretty impressive children. They have done all right. I was taken, in particular, by Dr G's report on B when the doctor was talking about sport and the humorous insights B gave about the parents' behaviour at the sidelines, and in many ways that is something of gallows humour. But she seems like a pretty good child.
C sounds like she is a bit of a rascal, and the world will be at her feet if somehow you two can find ways to continue the decent and effective communication which you have had absent lawyers into the future, and I know that is hard and perhaps at times impossible, but if you can be respectful of each other, these children will have a chance to achieve the potential which I suspect each of you want for them. The issues I have to address are of a narrow compass, but it seemed to expand as submissions came through, and I will try and deal with them each in turn.
The first is probably a semantic argument, which is in relation to the proposal that the mother take into consideration the views expressed by the father. The mother is concerned that this adds another dimension to that which she has to undertake in what she perceives as very difficult circumstances. The father says it is necessary. I am not concerned to the extent which the mother is, and I am satisfied that if she tells him what she is proposing to do he should be able to make a timely response and she ought to consider that response in terms of making a decision.
She will not be in any way bound by that decision or by that response, but she ought to have regard to it.
I add the words "timely manner" because I do not want the father to come back three weeks afterward and say, "I want you to think about this," because that may not be timely in all of the circumstances. If he comes back reasonably quickly, then you can have regard to it. If he does not come back reasonably quickly, you do not have to have regard to it. The second issue, and it is in fact tied to two others, is set out in Exhibit F3, the father wants an authority from the mother to obtain information from professionals in regard to the exercise of parental responsibility.
Further, he seeks in order 15 that the mother gives authorities to schools or for extracurricular activities to enable him to be provided with information. I am concerned about the breadth of what is sought by that, and I am also concerned, which I raised with counsel during submissions, with regard to the imposition of further pressures on the mother or obligations on the mother to do things. What I intend to do is simply make an order that the father will be entitled to information from schools and from health care professionals. In terms of extracurricular activity, I do not intend to go that far, bearing the age and maturity of these children. The youngest is soon to be 12, and the eldest is soon to be 15.
The next area which I have been asked to address relates to order 17 of the consent orders, which provided, at least by consent, that the parties be restrained from remaining and/or loitering and/or approaching the other party's home or place of work. The mother seeks a provision that this apply within 100 metres so that she can feel safe. I have read each of the affidavits of the parties, and, without making any findings, I understand where the mother is coming from, and given her views of the past, whether right or wrong, it seems to me that this is not an unreasonable requirement.
The next issue to which I will address myself is in terms of the alternate Monday after school. There are three proposals put to me, one by the father, which is each alternate Monday from after school or from 3 pm till the commencement of school the following day during the school term. The second is that by the Independent Children's Lawyer, having considered the evidence of Dr G that there be three hours after school, and the third is the mother's proposal. I have looked at all of the material in respect of this and noted the following.
Firstly, that the arrangements on an alternate week basis will be from the end of school on Friday to the commencement of school on Monday or the commencement of school on Tuesday if the Monday is a public holiday or a pupil free day. Given that circumstance, I do not intend to restore the Monday afternoon or the Monday evening. These are not tiny children who will forget their father in a matter of five or seven days. They know who he is, and in the orders they are entitled, if they choose, to give him a call and have a chat to him or, no doubt, talk on Facebook or some other Twitter account.. They will be in contact with him, and I do not intend to make that order.
The next one, which is the converse to that, is the school holidays. It is the mother's case that the time which the children spend with the father during the school holidays should be four days in mid-year and two periods of four nights, which is, in effect, five days. The father's position is that it should be one half of the school holidays. The mother's concern arises out of the earlier report of Dr G, and I note the age of the children at that stage was far younger than they are now. I also note that in just over three years time any orders that this Court makes in respect of the elder child will have no force and effect as she will attain the age of 18 years.
I see no reason why the children ought not to spend one half of the school holidays with each of their parents, and I intend to make that order. However, I intend to make with some additions. Firstly, that the children must be returned to the mother at least three nights before the commencement of school term so that the mother can arrange for the children to be ready for school. If there is a difference between the school starting dates it will be the earlier of those dates rather than the later of those dates. I note in terms of the lengthy school holiday period, which is of concern to the mother, that this will occur not this coming year, that is, the 2017/2018 year, but will take place when the children spend the second half of the school holiday in the 2018/2019 year when the elder child will be almost 17 and the younger child almost 14.
This year is an odd year, so the children would spend the first half of the school holidays with their father at Christmas this year, which would be the split school holiday period to which I alluded during submissions, so they would be with their father from the commencement of the school holidays for the two and a half weeks, but their Christmas would come sometime in the middle of that, which would give rise to the break about which the mother was concerned for the children.
For the purpose of these orders, I also note that the parents have reached an agreement with regard to Easter, which is if Easter is not part of a school holiday period, they will have a first half/second half arrangement alternating with those non-school holiday Easter periods.
The next issue is the family events, which were drawn in a broad way. I understand the concerns of the father. I also understand the concerns of the mother in the context of this. I do not intend to make any such order; I will leave it to the parties to work it out between themselves, which may be an expression of hope over reality, but I do not intend to set the parties up, as I think I would, with such orders to bring them straight back to Court.
The father seeks to be permitted to attend at sporting, school and religious activities. There should be no reason why the father cannot go to the normal school events, such as assemblies, Easter hat parades or other significant occasions, and in a private school that will probably include some Easter and Christmas festivities. I see no reason why the father cannot attend sporting games, but not training or practice. In terms of religious activities, those are a matter for privacy between each of the parents. I do not intend to make an order in that regard.
I intend to order that each of the parties be permitted to attend all normal school activities and all normal weekend extracurricular sporting activities, to which parents would generally attend, with the exception of parent-teacher interviews, which would have to be by arrangement separately with the teachers on the father’s part. What I do not want to do is have both parents turning up at the same time and exposing the children to further conflict.
I understand that order 9 was not pressed. That was the 40 kilometres and the relocation. Each of the parties seeks to travel overseas at some stage, and each of the parties seeks the Court to make orders to enable the issue of passports for the children. There is an issue as to who should hold the passports. It seems to me that any overseas travel is going to have to involve the parents talking to the other party in any event, as, if the parties are travelling overseas during the normal mid-year school term, the father would only spend and the mother would only spend seven days, and it is unlikely that the parties would travel overseas, particularly to Europe, for a period of seven days or less. It may well be that one of the parties may try and consider a Christmas trip, which would be two and a half weeks. However, that would also put a burden on the children. Consequently, the parents would likely have to negotiate in any event.
I intend to make an order that either party can give notice to the other party of their intention to travel overseas during the time the children would otherwise spend with them, but further time would have to be negotiated. However, in terms of the children’s passports, I intend to make an order that their passports are both retained by the mother pending any trip in accordance with the agreement or in accordance with the Court order.
I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 10 January 2017.
Associate:
Date: 4 April 2017
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Injunction
-
Procedural Fairness
0
0
1