Henrik & Henrik

Case [2025] FedCFamC2F 278


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Henrik & Henrik [2025] FedCFamC2F 278   

File number(s): MLC 11698 of 2024
Judgment of: JUDGE O'SHANNESSY
Date of judgment: 6 March 2025
Catchwords:  FAMILY LAW – Parenting – interim hearing – section 65DAAA – change in circumstances – clarification of the law at [79] of Radecki – where both parents seek to either vary or obtain further orders – whether change of residence of one parent necessitates a change of school – whether a change of residence and change of residence is only a “small change” and does not qualify the section 65DAAA test – sufficient change of circumstances for the court to reconsider the final orders found and interim orders made for a change of the children’s school.
Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DAA & 65DAAA
Cases cited:

Licata & Buxton [2019] FCCA 3181

Radecki & Radecki [2024] FedCFamC1A 246

Re F: Litigants in Person Guidelines (2001) FLC 93 072

Rice & Asplund (1978) 6 FamLR 570

SPS & PLS (2008) FLC 93-363

Division: Division 2 Family Law
Number of paragraphs: 73
Date of hearing: 11 December 2024
Place: Melbourne
Counsel for the Applicant: Ms Malik
Solicitor for the Applicant: Landers & Rogers
The Respondent: In Person

ORDERS

MLC 11698 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS HENRIK

Applicant

AND:

MR HENRIK

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

6 MARCH 2025

THE COURT ORDERS THAT:

School enrolment

1.Mr Henrik (‘the Father’) and Ms Henrik (‘the Mother’) do all acts and things to enrol X born in 2015 and Y born in 2018 (‘the children’) to attend primary school at C School in Suburb B for the commencement of the 2025 school year.

Section 65DAAA

2.Pursuant to section 65DAAA of the Family Law Act 1975 (Cth), the Father be and is granted leave to bring parenting order proceedings before the Court to vary the final parenting orders made by consent on 4 November 2022.

Family Dispute Resolution

3.Pursuant to Section 13C(1)(b) of the Family Law Act 1975 (Cth), the parties and their legal representatives (if any) shall attend:

(a)Part 1 of the confidential Court-based Family Dispute Resolution (FDR) Conference with a Registrar (as Family Dispute Resolution Practitioner) on a date to be fixed, with each party to attend separately at times to be advised; and

(b)Part 2 of the confidential Court-based FDR Conference on a date and at a time to be fixed but not later than seven (7) days after the date referred to in order 3(a).

4.The matter shall be referred to the Executive Director – National Registrar Operations and Practice for allocation and listing of the FDR Conference dates.

5.Any party who has not previously provided the Court with an email address must provide the preferred email address (and include details of the file name and Court file number) to …@... within 2 days of the making of these orders.

Further listing

6.The matter remains…

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AGLC
Henrik & Henrik [2025] FedCFamC2F 278
Case
[2025] FedCFamC2F 278
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia considered a dispute between Ms Henrik and Mr Henrik regarding the schooling of their two children, X and Y. The primary concern was whether a change in residence by one parent constituted a significant change in circumstances under section 65DAAA of the Family Law Act 1975, warranting a review of the existing parenting orders. Both parents were seeking either to vary the existing orders or to obtain further orders concerning the children’s education, particularly the choice of school for the upcoming school year.

The court was tasked with determining if the relocation of one parent justified a change in the children's school, and whether such a change qualified as a "significant change of circumstances" under section 65DAAA of the Family Law Act 1975. The court considered the implications of a parent's relocation and its potential impact on the children's education and well-being. It also examined whether a mere change of residence and the associated change of school constituted a sufficient change in circumstances to warrant a reconsideration of the existing final parenting orders. The court’s analysis included a review of relevant legal principles, particularly the clarification of the law at [79] of Radecki, to assess the significance of the proposed changes.

The court concluded that the change in residence of one parent and the associated change of school was indeed a significant change in circumstances under section 65DAAA of the Family Law Act 1975. This change warranted the court to reconsider the existing final parenting orders and make interim orders for the children's school enrolment. Consequently, the court ordered that the children would attend primary school at C School in Suburb B for the commencement of the 2025 school year. Additionally, the court granted the father leave to bring parenting order proceedings to vary the final parenting orders made by consent on 4 November 2022. The matter was further listed for a Family Dispute Resolution Conference to encourage the parties to resolve their dispute amicably. Reasons for the decision were reserved due to the illness of the Judge.

Orders

Orders of the court

MLC 11698 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS HENRIK

Applicant

AND:

MR HENRIK

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

6 MARCH 2025

THE COURT ORDERS THAT:

School enrolment

1. Mr Henrik (‘the Father’) and Ms Henrik (‘the Mother’) do all acts and things to enrol X born in 2015 and Y born in 2018 (‘the children’) to attend primary school at C School in Suburb B for the commencement of the 2025 school year.

Section 65DAAA

2. Pursuant to section 65DAAA of the Family Law Act 1975 (Cth), the Father be and is granted leave to bring parenting order proceedings before the Court to vary the final parenting orders made by consent on 4 November 2022.

Family Dispute Resolution

3. Pursuant to Section 13C(1)(b) of the Family Law Act 1975 (Cth), the parties and their legal representatives (if any) shall attend:

(a) Part 1 of the confidential Court-based Family Dispute Resolution (FDR) Conference with a Registrar (as Family Dispute Resolution Practitioner) on a date to be fixed, with each party to attend separately at times to be advised; and

(b) Part 2 of the confidential Court-based FDR Conference on a date and at a time to be fixed but not later than seven (7) days after the date referred to in order 3(a).

4. The matter shall be referred to the Executive Director – National Registrar Operations and Practice for allocation and listing of the FDR Conference dates.

5. Any party who has not previously provided the Court with an email address must provide the preferred email address (and include details of the file name and Court file number) to …@... within 2 days of the making of these orders.

Further listing

6. The matter remains listed before Judicial Registrar Diaz on 10 February 2025.

7. Reasons for decision be and are reserved.

8. The parties are at liberty to apply to the Court for Orders relating to a 62G(2) Family Report after the Family Dispute Resolution.

AND THE COURT NOTES THAT:

A. The reasons are reserved due to the illness of the Judge (COVID).

B. The Executive Director – National Registrar Operations and Practice will notify all parties and legal practitioners on the record of the dates and times fixed for all parts of the FDR Conference.

C. The FDR Conference is an opportunity for the parties to make a genuine effort to resolve their parenting dispute in a confidential, child focussed setting. The parties are to be resolution focussed and respectful during negotiations, and to be mindful of the financial and emotional costs associated with prolonged litigation.

D. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

E. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet) any unrepresented party will not be permitted to personally cross-examine the other party/parties.

F. Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

G. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

H. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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