Heinrich and Daniels - [2009] FamCA 103

FAMILY COURT OF AUSTRALIA

HEINRICH & DANIELS

[2009] FamCA 103

FAMILY LAW – CHILDREN - With whom a child lives - Best interests of child

Family Law Act 1975 (Cth)

APPLICANT:

Ms Heinrich

RESPONDENT:

Mr Daniels

INDEPENDENT CHILDREN’S LAWYER:

Robert Halliday and Associates

FILE NUMBER:

MLF

6464

2001

DATE DELIVERED:

5 February 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Dessau J

HEARING DATE:

5 September 2008, 21 - 23 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Berkovitch

SOLICITOR FOR THE RESPONDENT:

Vivienne Mavropoulos

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Williams

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Robert Halliday & Associates

Orders

That …born … February 1997 (“the child”) shall live with her father.
That the father shall have sole parental responsibility in respect to the child.
That the mother shall be able to communicate with the child by cards and letters and be able to forward gifts to her by mail to the father’s postal address and the father shall immediately notify the mother of any change in that postal address.
That the father shall forward to the mother copies of the child’s school reports, and be permitted to modify the same to exclude the names of teachers and the identification of the school.
That the mother shall be and is hereby restrained from:
(a)Approaching the child or knowingly being within a 500 metre radius of her; and
(b)Attending the child’s school or contacting any members of the staff of her school.
That subject to rights of appeal in this case, the mother shall be restrained for a period of three years from the date of these orders from issuing any further applications in respect to spending time with or communicating with the child without first obtaining the leave of the Court.
That pursuant to section 128(7) of the Evidence Act (Cth), a certificate shall issue to the mother in relation to the evidence transcribed in this case on 21 January 2009 from pages 1 to 11.
That pursuant to s 65DA 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.
That all existing applications shall be otherwise dismissed and removed from the list of cases awaiting finalisation.
That the appointment of the ICL shall be discharged.
That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

IT IS NOTED

That the mother was this day provided with a Certificate pursuant to s 128 of the Evidence Act 1995

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

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 Heinrich and Daniels

Details

AGLC: Heinrich and Daniels [2009] FamCA 103
Case: [2009] FamCA 103
Decision Date: 5 February 2009

CaseChat Overview and Summary

In *Heinrich and Daniels*, Dessau J of the Family Court of Australia determined the living arrangements and parental responsibility for a child born in February 1997. The proceedings concerned a dispute between the child's parents regarding these arrangements and the mother's future ability to communicate with or seek contact with the child.

The court was required to determine the primary residence of the child, the allocation of parental responsibility, the nature and extent of the mother's communication with the child, and whether to impose restrictions on the mother's future applications concerning the child. Additionally, the court considered the implications of the *Evidence Act* (Cth) and the *Family Law Act 1975* (Cth) regarding the provision of information about the orders and the attendance of counsel.

Dessau J ordered that the child live with her father and that the father have sole parental responsibility. The mother was permitted to communicate with the child via cards and letters and to send gifts by mail, with the father obliged to provide his postal address. The father was also to provide the mother with copies of school reports, with the option to redact identifying information. Crucially, the mother was restrained from approaching the child within 500 metres and from attending the child's school or contacting its staff. Furthermore, the mother was restrained for three years from issuing further applications for contact or communication without leave of the Court. The court also issued a certificate under section 128(7) of the *Evidence Act* (Cth) in relation to the mother's evidence and included a Fact Sheet detailing the obligations and consequences of the orders, as required by sections 65DA and 62B of the *Family Law Act 1975* (Cth). All existing applications were dismissed, and the Independent Children's Lawyer's appointment was discharged.

Orders

Orders of the court

That …born … February 1997 (“the child”) shall live with her father.

That the father shall have sole parental responsibility in respect to the child.

That the mother shall be able to communicate with the child by cards and letters and be able to forward gifts to her by mail to the father’s postal address and the father shall immediately notify the mother of any change in that postal address.

That the father shall forward to the mother copies of the child’s school reports, and be permitted to modify the same to exclude the names of teachers and the identification of the school.

That the mother shall be and is hereby restrained from:

(a) Approaching the child or knowingly being within a 500 metre radius of her; and

(b) Attending the child’s school or contacting any members of the staff of her school.

That subject to rights of appeal in this case, the mother shall be restrained for a period of three years from the date of these orders from issuing any further applications in respect to spending time with or communicating with the child without first obtaining the leave of the Court.

That pursuant to section 128(7) of the Evidence Act (Cth), a certificate shall issue to the mother in relation to the evidence transcribed in this case on 21 January 2009 from pages 1 to 11.

That pursuant to s 65DA 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.

That all existing applications shall be otherwise dismissed and removed from the list of cases awaiting finalisation.

10.

That the appointment of the ICL shall be discharged.

11.

That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

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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