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Heilig and Cabiness

Heilig and Cabiness

Case [2011] FMCAfam 97 2 March 2011

Parenting Orders

Sole Parental Responsibility

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Family Law

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

HEILIG & CABINESS

[2011] FMCAfam 97

FAMILY LAW – Parenting – family violence – coercive controlling violence – no contact or communication.

Bail Act 1998, ss.9A
Crimes Act 1900, ss.35, 59, 61, 562AB, 562AC, 562BE, 562G
Crimes (Sentencing Procedure) Act 1999, ss.3A, 10
Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAA

Attorney-General for Tasmania v O [2004] TASSC 53
Cabiness v Heilig [2003] FamCA 1690
Gallegos v R [1999] WASCA 191
John Fairfax Publications Pty Limited v Ryde Local Court [2005] NSWCA 101
Osland v The Queen (1998) 197 CLR 316
Parker v The Queen (Tasmania Court of Criminal Appeal, 21 July 1994, BC9400423)
R v Berry [2000] NSWCCA 451
R v Brown (1992) 73 CCC (3d) 242
R v Devine (Tasmanian Supreme Court, 5 July 1993, unreported)
R v Dunn (2004) 144 A Crim R 180
R v Edigarov [2001] NSACCA 436
R v Fahda [1999] NSWCCA 267
R v Glen (Court of Criminal Appeal, 19 December 1994, BC9403423)
R v Greene [2001] NSWCCA 258
R v Heilig [2006] NSWCCA 302
R v Powell (2000) NSWCCA 108
R v Ross (Court of Criminal Appeal, 20 November 1996, unreported)
R v Rowe (1996) 89 A Crim R 467
Sigley v Evor [2011] FamCAFC 22
Ugle v R [2001] WASCA 268
Vukic & Edgerton [2001] NSWCCA 2

People, Julie, “Trends and Patterns in Domestic Violence Assaults”, NSW Bureau of Crime Statistics and Research, Crime and Justice Bulletin, No 89, October 2005
Stubbs, Julie, “Restorative Justice, Domestic Violence and Family Violence” (2004) Australian Domestic and Family Violence Clearing House, Issues Paper No. 9
Warner, Kate, Sentencing in Tasmania (2^nd ed, 2002)

Applicant:

MR HEILIG

Respondent:

MS CABINESS

File Number:

WOC 61 of 2009

Judgment of:

Altobelli FM

Hearing dates:

7 – 8 December 2010

Date of Last Submission:

8 December 2010

Delivered at:

Wollongong

Delivered on:

2 March 2011

REPRESENTATION

Counsel for the Applicant:

Ms Healey

Solicitors for the Applicant:

Hennikers Solicitors

Counsel for the Respondent:

Ms Doosey

Solicitors for the Respondent:

Rossi Simicic Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Barry

Independent Children’s Lawyer:

Lukes Law

ORDERS

The Father’s Contravention Application filed 22 January 2009 is withdrawn and dismissed.
That all previous parenting orders be discharged.
That the children of the marriage, namely [X] born [in] 1996, [Y] born [in] 1998 and [Z] born [in] 1999, live with the Mother.
That the Mother have sole parental responsibility for the day to day and long term decisions for the care, welfare and development for the said children including decisions regarding the issue of Passports, overseas travel arrangements, applications to change the name of the children.
That the Mother be at liberty to approach the Registrar of Births, Deaths and Marriages in the State of New South Wales to change the name of the said children.
That the Father be restrained from approaching the children or the children’s schools or communicating with the children by any means including through…

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 Heilig and Cabiness

Details

AGLC: Heilig and Cabiness [2011] FMCAfam 97
Case: [2011] FMCAfam 97
Decision Date: 2 March 2011

CaseChat Overview and Summary

Heilig and Cabiness involved a dispute between the parties over the care and custody of their three children. The matter was heard in the Family Court of Australia. The father, seeking to enforce existing parenting orders and gain access to the children, filed a contravention application. The mother, on the other hand, opposed the father's application and sought changes to the existing orders, including sole parental responsibility and restrictions on the father's contact with the children.

The court was required to determine several legal issues, including whether the father's application for enforcement of existing orders should be granted, and whether the mother's application for changes to the orders should be upheld. The court also had to consider the best interests of the children in making its decisions.

In reaching its decision, the court considered evidence from both parties and expert reports. The court found that the father's application for enforcement of existing orders was not in the best interests of the children, and that the mother's application for changes to the orders should be granted. The court found that sole parental responsibility should be given to the mother, and that the father should be restrained from approaching the children or their schools, or communicating with them in any way. The court also found that the children should live with the mother.

The court made several orders, including dismissing the father's contravention application, discharging all previous parenting orders, and granting sole parental responsibility to the mother. The court also ordered that the children live with the mother, and that the father be restrained from approaching the children or communicating with them. The mother was granted liberty to approach the Registrar of Births, Deaths and Marriages in New South Wales to change the name of the children.

Orders

Orders of the court

The Father’s Contravention Application filed 22 January 2009 is withdrawn and dismissed.

That all previous parenting orders be discharged.

That the children of the marriage, namely [X] born [in] 1996, [Y] born [in] 1998 and [Z] born [in] 1999, live with the Mother.

That the Mother have sole parental responsibility for the day to day and long term decisions for the care, welfare and development for the said children including decisions regarding the issue of Passports, overseas travel arrangements, applications to change the name of the children.

That the Mother be at liberty to approach the Registrar of Births, Deaths and Marriages in the State of New South Wales to change the name of the said children.

That the Father be restrained from approaching the children or the children’s schools or communicating with the children by any means including through a third party.

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

Heilig and Cabiness [2011] FMCAfam 97

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Cases cited in this decision · 17 of 17 shown

Sigley & Evor
[2011] FamCAFC 22 Para 1

…In the recent Full Court decision in Sigley v Evor [2011] FamCAFC 22, the Full Court discusses what will be one of the main issues in this case – the meaning of “meaningful” in the context of “meaningful relationship” in s.60B(1)(a) and s60CC(2)(a). The Full court states at paragraphs 131-133 and 136: Definition of…
Champness & Hanson
[2009] FamCAFC 96 Para 1

…nguage. … 136. We also observe that in Champness & Hanson [2009] FamCAFC 96; (2009) FLC 93-407 the Full Court (Thackray, O’Ryan & Benjamin JJ) observed at 83,502: 103. The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the…
Mazorski & Albright
[2007] FamCA 520 Para 1

…es not give guidance to the interpretation of the phrase ‘meaningful relationship’ ”. 132. In Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 Brown J considered ordinary definitions of the term “meaningful” and observed: [26] What these definitions convey is that “meaningful”, when used in the context of…
G & C
[2006] FamCA 994 Para 1

…The Full Court observed at 83,476: 117. Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child. 118. It appears t…
R v Hamid
[2006] NSWCCA 302 Para 2

…The decision of the Court of Criminal Appeal is cited as R v Heilig [2006] NSWCCA 302 (20 September 2006). The leading judgment was delivered by Johnson J, with whom Hunt and Latham JJ agreed. As indicated, it was an appeal by the Director of Public Prosecutions alleging manifest inadequacy of sentences imposed on t…
John Fairfax Publications Pty Ltd v Ryde Local Court
[2005] NSWCA 101 Para 4

…pose which complement the criminal law. In John Fairfax Publications Pty Limited v Ryde Local Court [2005] NSWCA 101; (2005) 62 NSWLR 512, Spigelman CJ (Mason P and Beazley JA agreeing) said at 519 [20]: “The legislative scheme for apprehended violence orders serves a range of purposes which are quite distinct from…
R v Dunn
[2004] NSWCCA 346 Para 4

…is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.” 72. In R v Dunn (2004) 144 A Crim R 180, Adams J (Ipp JA and Sully J agreeing) said at 195 [47]: “Crimes involving domestic violence have two important characteristics which differentiate them…
Her Majesty's Attorney-General v O
[2004] TASSC 53 Para 4

…[1999] WASCA 191 at paragraphs 11, 28; Ugle v R [2001] WASCA 268 at paragraph 37; Attorney-General for Tasmania v O [2004] TASSC 53 at paragraph 18; Warner, “Sentencing in Tasmania”, 2002, 2nd edn, paragraph 11.325. 76. In the context of cases concerning “battered woman syndrome”, reference has been made to the no…
R v Edigarov
[2001] NSWCCA 436 Para 4

…nsiderable proportions in this community and the courts must be strong to ensure that it is adequately punished.” 71. In R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551, Wood CJ at CL (Studdert and Bell JJ agreeing) said at 558 [41]: “As this Court has confirmed in Glen NSWCCA 19 December 1994, Ross NSWCCA 2…
Ugle v The Queen
[2001] WASCA 268 Para 4

…hich makes it difficult for them to escape’." See also Gallegos v R [1999] WASCA 191 at paragraphs 11, 28; Ugle v R [2001] WASCA 268 at paragraph 37; Attorney-General for Tasmania v O [2004] TASSC 53 at paragraph 18; Warner, “Sentencing in Tasmania”, 2002, 2nd edn, paragraph 11.325. 76. In the context of cases conc…
R v Greene
[2001] NSWCCA 258 Para 4

…by men against women in domestic relationships: R v Rowe (1996) 89 A Crim R 467 at 472-3; R v Berry [2000] NSWCCA 451 at paragraph 32; R v Greene [2001] NSWCCA 258 at paragraph 16. 69. In R v Ross (Court of Criminal Appeal, 20 November 1996, unreported), Adams AJ (Newman J agreeing) observed, in the context of a sen…
Ina Vukic v Denise Edgerton and Rade Cikes
[2001] NSWCCA 2 Para 4

…by men against women in domestic relationships: R v Rowe (1996) 89 A Crim R 467 at 472-3; R v Berry [2000] NSWCCA 451 at paragraph 32; R v Greene [2001] NSWCCA 258 at paragraph 16. 69. In R v Ross (Court of Criminal Appeal, 20 November 1996, unreported), Adams AJ (Newman J agreeing) observed, in the context of a s…
R v Berry
[2000] NSWCCA 451 Para 4

…lence cases, given the prevalence of violence by men against women in domestic relationships: R v Rowe (1996) 89 A Crim R 467 at 472-3; R v Berry [2000] NSWCCA 451 at paragraph 32; R v Greene [2001] NSWCCA 258 at paragraph 16. 69. In R v Ross (Court of Criminal Appeal, 20 November 1996, unreported), Adams AJ (Newman…
R v Fahda
[1999] NSWCCA 267 Para 4

…t acts meted out continuously to women in this community by men who suppose they have the right to do so will not stop.” 70. In R v Fahda [1999] NSWCCA 267, Simpson J (Studdert J agreeing) said at paragraph 26: “Domestic violence is a problem of considerable proportions in this community and the courts must be stron…
Osland v The Queen
[1998] HCA 75 Para 4

…e notions of dominance, control and justification surrounding acts of domestic violence: Osland v The Queen (1998) 197 CLR 316 at 372, 407. 77. These judicial statements are complemented by criminological research concerning domestic violence. An adequate account of domestic violence should recognise that it typicall…
Cabiness v Heilig
[2003] FAMCA 1690 Para 7

…The current orders were those made by O’Ryan J ( Cabiness v Heilig [2003] FamCA 1690) on 21 November 2003, after a three-day hearing in the Family Court at Sydney. Those orders provide for the children to live with their mother but to have contact with their father each alternate weekend from Friday to Sunday, as we…
McCall & Clark
[2009] FAMCAFC 92 Para 1

…60B(1)(a) of the Act, being the first object of Pt VII, and s 60CC(2)(a), being the first primary consideration, in McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 the Full Court (Bryant CJ, Faulks DCJ & Boland J) observed at 83,475: “The Act does not contain a definition of ‘meaningful’, nor does it provide an…

Legislation cited in this decision · 3

Crimes Act 1900 (ACT)
35, 562AB, 562AC, 562BE, 562G, 59, 61 9 mentions (from Para 3)
Family Law Act 1975 (Cth)
4, 60B, 60CA, 60CC, 61DA, 65DAA 7 mentions
Crimes (Sentencing Procedure) Act 1999 (NSW)
10, 3A 3 mentions (from Para 1)