Heilig and Cabiness

Case [2011] FMCAfam 97


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 (2nd 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

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 The Father’s Contravention Application filed 22 January 2009 is withdrawn and dismissed.

  2. That all previous parenting orders be discharged.

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

  4. 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.

  5. 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.

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

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

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

1.

The Father’s Contravention Application filed 22 January 2009 is withdrawn and dismissed.

2.

That all previous parenting orders be discharged.

3.

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

4.

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.

5.

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.

6.

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

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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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