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Heiden and Kaufman

Heiden and Kaufman

Case [2011] FMCAfam 478 15 April 2011

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

HEIDEN & KAUFMAN

[2011] FMCAfam 478

FAMILY LAW – Competing parenting applications – allegations of mental health issues – allegations of violence towards mother and children by father – risk of violence – impact of fear of violence – extremist beliefs of father.

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 61DA(1), 61DA(2), 65DAA, 65DAA(1), 65DAA(2), 65DAA(4), 65DAA(5)(e), 67N, 69ZN, 69ZO(a), 69ZX, Division 12A
Evidence Act 1995, s.140
Federal Magistrates Act 1999
Marriage Act 1961

Farmer v Rogers [2010] FamCAFC 253
Allesch v Maunz (2000) 203 CLR 172
Jones & Dunkel (1959) 101 CLR 298
Browne v Dunn (1893) 6 R 67 (HL)
Goode & Goode (2006) FLC 93 – 286
Marvel & Marvel [2010] FamCAFC 101
U & U (2002) 211 CLR 238
Mabo v Queensland [1988] HCA 69; (1989) 166 CLR 186 (8 December 1988)
Minister of Immigration v Teoh (1995) 183 CLR 273
Bennett & Bennett [2001] FamCA 462
Pitkin & Hendry [2008] FamCA 186
Dylan & Dylan [2007] FamCA 842
Mazorski & Albright [2007] FamCA 520
Johnson (2007) FLC 93 – 344; [2007] FamCA 1235
R & R: Children’s Wishes [2000] FamCA 43
Re David (1997) FLC 92 - 776

Applicant:

MR HEIDEN

Respondent:

MS KAUFMAN

File Number:

PAC 3161 of 2009

Judgment of:

Harman FM

Hearing dates:

14 & 15 April 2011

Date of Last Submission:

15 April 2011

Delivered at:

Parramatta

Delivered on:

15 April 2011

REPRESENTATION

Counsel for the Respondent:

Ms Smith

Solicitors for the Respondent:

Parker Kissane & Gibson

ORDERS

In accordance with paragraphs 1 to 5 of the Minute of Orders sought by the Independent Children’s Lawyer, Exhibit “ICL3”. In addition I note the final paragraph of that minute and I make the following further orders.
Any communication of written form forwarded by Mr Heiden to the children, in accordance with the above orders, shall be in the English language and not otherwise.
I restrain both parties from making any application in any court exercising jurisdiction under Family Law Act 1975 other than the Federal Magistrates Court, Parramatta, such application to be listed before me.
In the event that any proceedings are instituted by either parent no subpoena is to be filed by either parent without leave of the court.
I otherwise discharge the Independent Children’s Lawyer with the court’s thanks.
I dismiss all outstanding applications from responses and remove all issues from the list of cases awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.

IT IS NOTED that publication of this judgment under the pseudonym Heiden & Kaufman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC 3161 of 2009

MR HEIDEN

Applicant

And

MS KAUFMAN

Respondent

REASONS FOR JUDGMENT

These…

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 Heiden and Kaufman

Details

AGLC: Heiden and Kaufman [2011] FMCAfam 478
Case: [2011] FMCAfam 478
Decision Date: 15 April 2011

CaseChat Overview and Summary

The case of Heiden and Kaufman was determined by the Federal Magistrates Court, Parramatta. The matter involved a dispute between the parents, Heiden and Kaufman, regarding their children. The Independent Children’s Lawyer intervened and sought specific orders concerning the children's welfare and the parents' interactions. The court was tasked with deciding various legal issues, including the language to be used in any correspondence between Heiden and the children, restrictions on future legal applications, and the handling of subpoenas in any future proceedings. The court also needed to address the return of exhibits and subpoenaed material if no appeal was lodged.

The court found that communication from Heiden to the children must be in English only, ensuring clear and unambiguous interaction. The court further restricted both parties from filing any applications under the Family Law Act 1975 in courts other than the Federal Magistrates Court, Parramatta, and mandated that any subpoena filed in future proceedings must be approved by the court. The Independent Children’s Lawyer was discharged, and all outstanding applications and issues were dismissed. Finally, the court ordered that all exhibits and subpoenaed materials be returned to their respective owners upon the conclusion of the appeal period, provided no appeal was filed.

This decision ensures that the children’s best interests are prioritised, maintaining a clear and controlled environment for their interaction with both parents. The restrictions on legal applications and the requirement for court approval for subpoenas aim to prevent unnecessary legal proceedings and ensure that any future actions are justified and necessary. The return of exhibits and subpoenaed materials to their rightful owners signifies the conclusion of this litigation phase, pending any appeals.

Orders

Orders of the court

In accordance with paragraphs 1 to 5 of the Minute of Orders sought by the Independent Children’s Lawyer, Exhibit “ICL3”. In addition I note the final paragraph of that minute and I make the following further orders.

Any communication of written form forwarded by Mr Heiden to the children, in accordance with the above orders, shall be in the English language and not otherwise.

I restrain both parties from making any application in any court exercising jurisdiction under Family Law Act 1975 other than the Federal Magistrates Court, Parramatta, such application to be listed before me.

In the event that any proceedings are instituted by either parent no subpoena is to be filed by either parent without leave of the court.

I otherwise discharge the Independent Children’s Lawyer with the court’s thanks.

I dismiss all outstanding applications from responses and remove all issues from the list of cases awaiting hearing.

Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Heiden and Kaufman [2011] FMCAfam 478

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Cases cited in this decision · 14 of 14 shown

Farmer & Rogers
[2010] FamCAFC 253 Para 3

…o witnesses. That had occurred after submissions and a brief adjournment and a consideration of the Full Court’s recent decision in Farmer v Rogers [2010] FamCAFC 253. In that case, the Full Court made clear the court’s power, ability and indeed responsibility to manage proceeding under both the relevant provisions o…
Marvel & Marvel
[2010] FamCAFC 101 Para 1

…The Full Court has been clear in cases such as Goode & Goode (2006) FLC 93 – 286 and Marvel & Marvel [2010] FamCAFC 101 that the legislative framework that the Family Law Act 1975 now provides and has done since 2006 should be followed in all cases and this is so irrespective of the beliefs that is adhered to by each…
Pitken & Hendry
[2008] FamCA 186 Para 15

…although that is a somewhat unusual course, as has been remarked by the Full Court and perhaps more eloquently stated by Murphy J in Pitken & Hendry [2008] FamCA 186 the most usual course would be to consider matters of reasonable practicality as part of the s.60CC considerations. However, in this case, I am satis…
Johnson & Page
[2007] FamCA 1235 Para 15

…ions and the like, it is in my mind analogous to case in which there is a real issue as defined by the Full Court in Johnson (2007) FLC 93 – 344; [2007] FamCA 1235 of an unacceptable risk.…
Dylan & Dylan
[2007] FamCA 842 Para 4

…There are a number of particularly significant issues that relate to the primary considerations. Firstly, as remarked Carmody J in Dylan & Dylan [2007] FamCA 842, the primary considerations are not more important than the additional considerations. Indeed, there are circumstances in which the additional considerati…
Mazorski & Albright
[2007] FamCA 520 Para 8

…A relationship as described by Brown J in Mazorski & Albright [2007] FamCA 520 is meaningful when it holds true and genuine importance to both the child and the parent. I wholeheartedly accept that Mr Heiden's relationship with his daughter and indeed his son is meaningful and important to him and I don't for one m…
U v U
[2002] HCA 36 Para 2

…A starting point is the proposals raised by each of the parties but the court is not, as the High Court made clear in U & U (2002) 211 CLR 238 bound by those proposals. In this case, as I have indicated, Mr Heiden’s proposals are largely set out in paragraph 60 of his affidavit. He seeks to be able to see the childre…
Bennett v Bennett
[2001] FamCA 462 Para 17

…if such application were properly before the court, I am satisfied by reference to authorities such as the Full Court's decision in Bennett & Bennett [2001] FamCA 462 that I have no power to make an order compelling Ms Kaufman to live anywhere other than as a function of making parenting orders. I have not been ask…
Allesch v Maunz
[2000] HCA 40 Para 7

…That particularly flows also from the decision of the High Court and in particular the judgment of Kirby J in Allesch v Maunz (2000) 203 CLR 172 as referred to in paragraph 243 of the Full Court’s decision in Farmer v Rogers that: It is a principle of justice that a decision maker, at least one exercising public power, m…
R & R: Children's Wishes
[2000] FamCA 43 Para 22

…children have an adverse view in relation to their father but simply that they will not by references to cases such as R & R: Children’s Wishes [2000] FamCA 43 suffer a negative or adverse reaction in the event that they were deprived of the opportunity to commence a relationship. b)The nature of the children’s re…
Minister for Immigration and Ethnic Affairs v Teoh
[1995] HCA 20 Para 8

…enacted into domestic law, but cases such as Mabo v Queensland [1988] HCA 69; (1989) 166 CLR 186 (8 December 1988) and Minister of Immigration v Teoh (1995) 183 CLR 273 make clear are the basis, whether enacted in domestic legislation or not, to inform legislation which does touch upon the same subject matter.…
Mabo v Queensland
[1988] HCA 69 Para 8

…he International Convention On The Rights Of the Child, not all of which have yet been enacted into domestic law, but cases such as Mabo v Queensland [1988] HCA 69; (1989) 166 CLR 186 (8 December 1988) and Minister of Immigration v Teoh (1995) 183 CLR 273 make clear are the basis, whether enacted in domestic leg…
Jones v Dunkel
[1959] HCA 8 Para 7

…cause him to tender it, it has not come before me. I can only infer from that, that there is nothing in the document by reference to a Jones & Dunkel (1959) 101 CLR 298 inference that would support any criticism of Ms Kaufman as levied. Indeed, Ms Kaufman was not cross-examined on those issues or, indeed, many other…
Browne v Dunn
113 ER 1206 Para 10

…Overwhelmingly, the Browne v Dunn (1893) 6 R 67 (HL) inference that must arise from the absence of any cross-examination on the relevant portions of Ms Kaufman’s case, particularly regarding domestic violence, even though Mr Heiden is self-represented, cannot, in my mind, be overlooked. They were simply avoided, and in…

Legislation cited in this decision · 4

Family Law Act 1975 (Cth)
4, 60B, 60CA, 60CC, 61DA, 61DA(1), 61DA(... 12 mentions (from Para 3)
Evidence Act 1995 (Cth)
140 2 mentions (from Para 7)
Federal Magistrates Act 1999 (Cth)
1 mention (from Para 3)
Marriage Act 1961 (Cth)
1 mention (from Para 11)