HEINRICHS & HEINRICHS - [2019] FCCA 286

FEDERAL CIRCUIT COURT OF AUSTRALIA

HEINRICHS & HEINRICHS

[2019] FCCA 286

Catchwords:
FAMILY LAW – Travel overseas – Hague convention country – schooling – transfer to Family Court of Australia.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Goode & Goode [2006] FamCA 1346
Kuebler v Kuebler (1978) FLC 90-434
Line & Line (1996) 21 FamLR 156
Thomason & Malhotra [2010] FamCAFC 85
Busch & O’Shea [2013] FamCA 461

Applicant:

MR HEINRICHS

Respondent:

MS HEINRICHS

File Number:

SYC 5659 of 2018

Judgment of:

Judge Kemp

Hearing date:

21 January 2019

Date of Last Submission:

21 January 2019

Delivered at:

Sydney

Delivered on:

13 February 2019

REPRESENTATION

Applicant:

Self-represented

Counsel for the Respondent:

Mr Gutteres

Solicitors for the Respondent:

Lander & Rogers

Counsel for the Independent Children's Lawyer:

Ms Reynolds

Solicitors for the Independent Children's Lawyer:

Kathryn Renshall Lawyers

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

By consent, the mother be granted leave for short service of her Further Amended Response and the interim application be listed on an urgent basis.
By consent, all times be abridged to enable the urgent hearing of the interim applications.
These orders are in addition to the interim orders made on 1 November 2018 which continue to stand.
By consent, [X], born … 2007, (“[X]”) live with the mother.
By consent, the father be restrained:
(a)from relocating the residence of [Y], born … 2004, (“[Y]”) from the Sydney metropolitan area; and
(b)Attending upon Suburb A Public School without the prior written consent of the mother.
By consent, until further order, the father (also known as [Mr Heinrichs] and [Mr Heinrichs] and [Mr Heinrichs]) born … 1974 and his servants and/or agents be hereby restrained from removing or attempting to remove [X] from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watchlist until the Court orders its removal.
By consent, that within fourteen (14) days, the father shall deliver any passports obtained in the name of [Y], including but not limited to passports obtained in Ireland, the United Kingdom and Australia to the Sydney Registry of the Federal Circuit Court of Australia and those passports shall be retained by the Federal Circuit Court of Australia, pending further order or written agreement of the parties.
By consent, each party be restrained from:
(a)Denigrating the other party in the presence and/or hearing of the said children and permitting any third party from doing so;
(b)Discussing these proceedings in the presence and/or hearing of the said children or showing the said children any document connected with these proceedings; and
(c)Involving the said children in adult issues.
By consent, pursuant to section 91B of the Family Law Act 1975, the Department of Family and Community Services (“FACS”) be requested to…

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.

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Details

AGLC: HEINRICHS & HEINRICHS [2019] FCCA 286
Case: [2019] FCCA 286
Decision Date: 13 February 2019

CaseChat Overview and Summary

The parties, Mr. and Ms. Heinrichs, brought their dispute concerning the proposed overseas travel of their child to the Family Court of Australia. The core of the disagreement centred on whether the child should be permitted to travel to a country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, specifically in relation to the child's schooling arrangements.

The primary legal issue before the Court was to determine whether to grant or refuse permission for the child to travel overseas, considering the implications for the child's education and the potential impact on the existing parenting orders. This involved an assessment of the child's best interests in the context of international travel and schooling.

Kemp J considered the evidence presented by both parties regarding the proposed travel and its potential consequences. The Court applied the principles of international child abduction conventions and the paramount consideration of the child's welfare. The decision ultimately hinged on whether the proposed travel and associated schooling arrangements were in the child's best interests, taking into account the potential for the child to be retained in the foreign jurisdiction.

The Court made orders regarding the child's travel and schooling, reflecting its determination of the child's best interests.

Orders