Cudden & Heyworth
[2023] FedCFamC2F 36
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cudden & Heyworth [2023] FedCFamC2F 36
File number(s): MLC 11650 of 2019 Judgment of: JUDGE HARLAND Date of judgment: 19 January 2023 Catchwords: FAMILY LAW – parenting – unacceptable risk – father fixed false beliefs that maternal grandmother is abusive – emotional harm – whether or not there should be an immediate change of residence – history of non-compliance with orders by father – final orders made enabling matter to be urgently listed before Judge Harland in event of further difficulties Legislation: Family Law Act 1975 (Cth), Pt VII, ss 60CC, 60I, 69ZW, 91B Cases cited: Isles & Nelissen [2022] FedCFamC1A 97
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Waterford & Waterford [2013] FamCA 33
Division: Division 2 Family Law Number of paragraphs: 277 Date of hearing: 21 – 24 November 2022 Place: Melbourne Solicitor for the Applicant: Mr Fuentes of Fuentes Legal Counsel for the First Respondent: Ms Agresta Solicitor for the First Respondent: Leslie Family Law Counsel for the Second Respondent: In person Counsel for the Independent Children's Lawyer: Mr Allen Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 11650 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CUDDEN
Applicant
AND: MS HEYWORTH
First Respondent
MS B HEYWORTH
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE HARLAND
DATE OF ORDER:
19 January 2023
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.Mr Cudden, Ms Heyworth, and Ms B Heyworth have equal shared parental responsibility for the child of the relationship, X born in 2014 (“X”).
3.X live with the Father.
4.X spend time and communicate with the Maternal Grandmother as follows:
(a)Each alternate weekend during school terms from 4.30pm on Friday until 5.00pm on Sunday commencing in Term 1, 2023; save if the Monday is a public holiday or pupil free day the time conclude at 5.00pm on the Monday;
(b)During Victorian school term holidays for half the term holidays, and unless otherwise mutually agreed by the parents and maternal grandmother in writing, for the first half commencing from the conclusion of the last day of school for the term to 5pm on the Saturday nearest the midpoint of the term holiday period;
(c)For half the long Summer school holidays, and unless otherwise mutually agreed by the parties in writing, each alternate week on a week about basis from the conclusion of the last day of the school year to 5pm 7 days later and thereafter week about commencing and concluding at 5pm, and if week about time taking place during the Summer holidays falls on the week when students are expected to attend school for the start of the new school year, X will be returned to the father at 5pm 2 days prior to students attending.
(d)For Christmas in 2023 and each alternate year thereafter from 2.30pm on Christmas Day until 2.30pm on Boxing Day, unless otherwise agreed between the parents and Maternal Grandmother in writing
(e)For Christmas in 2024 and each alternate year thereafter from 2.30pm Christmas Eve until 2.30pm Christmas Day, unless otherwise agreed between the parents and Maternal Grandmother in writing;
(f)On Mother’s Day if X is not already spending time with the Maternal Grandmother, from 5.00pm on the day preceding Mother’s Day until 5.00pm on Mother’s Day;
(g)On each of the Mother’s birthday, X’s birthday and C’s birthday from 3.30pm until 7.30pm or from 10.00am until 7.30pm on a non-school day;
(h)By Facetime on each Wednesday when X is not in the Maternal Grandmother’s care, from 6.00pm until 6.30pm with the Maternal Grandmother to place the call and the Father to ensure that X is available and that his phone is able to receive the call, and at all other times as may be agreed in writing between the parents and the Maternal Grandmother;
5.The Mother is to spend time with X at any time X is in the care of the Maternal Grandmother in accordance with Order 4 and this time shall occur at the home (or from the home if going on an outing or on holiday) of the Maternal Grandmother and insofar as it is practicable the Mother shall ensure X is not exposed to inappropriate adults (as assessed by the Maternal Grandmother) during all spend time subject to these orders and that all time between the Mother and X is with the Maternal Grandmother or Mr D or Ms E.
6.In the event time does not commence with the Maternal Grandmother due to X’s illness, the Father is required to provide make up time to the Maternal Grandmother as nominated by the Maternal Grandmother in writing.
7.Changeovers are to occur with the Maternal Grandmother (or her nominee including Mr D or Ms E) collecting X at the commencement of time from Suburb F McDonald’s at G Street, Suburb F and the Father collecting X from the home of the Maternal Grandmother at the conclusion of time, save as otherwise agreed in writing including text message.
8.The Father be restrained by injunction from collecting X from school on Fridays or school days that X is scheduled to spend time with the Maternal Grandmother, save with the prior written agreement from the Maternal Grandmother.
9.The Maternal Grandmother be permitted to contact the school each Friday or other school day that X is scheduled to spend time with the Maternal Grandmother, to confirm X’s attendance.
10.In the event that X does not attend school on the Friday or school days that X is scheduled to spend time with the Maternal Grandmother, then the Maternal Grandmother be permitted to collect X from the home of the Father from 3.00pm on the Friday/day.
11.The Father must maintain communication with the Maternal Grandmother and provide a timely response (within 12 hours of receipt of any communication) to any text message, voice message, telephone call or email received from the Maternal Grandmother in relation to arrangements for X, and all such communication is to be respectful and child focused.
12.The time in accordance with Order 4 be suspended as required and X spend time with the Father as follows:
(a)On Father’s Day from 5.00pm on the day preceding Father’s Day until 5.00pm on Father’s Day;
(b)For Christmas in 2023 and each alternate year thereafter from 2.30pm on Christmas Eve until 2.30pm on Christmas Day; and
(c)For Christmas in 2024 and each alternate year thereafter from 2.30pm on Christmas Day until 2.30pm on Boxing Day
(d)On the Father’s birthday from 5.00pm the day preceding the Father’s Birthday until 5.00pm on the Father’s birthday.
13.The Mother is restrained by injunction from consuming any illicit substances or alcohol to excess within 24 hours of X spending time with her.
14.If the Mother is affected by illicit substances or alcohol during any time spent in accordance with Order 5 the Mother is required to leave the Maternal Grandmother’s home immediately and the Maternal Grandmother shall notify the Father of same as soon as practicable.
15.If the Mother is required to leave the Maternal Grandmother’s home due to illicit substance use or for any other reason:
(a)The time spent between X and the Maternal Grandmother will continue and the Mother shall not be permitted to spend time with X until she provides a clean supervised urine drug screen to the Maternal Grandmother.
16.The parties are to do all acts and things required for X to continue to attend upon Mr H, psychologist, for her own independent ongoing individual therapy and the parties are restrained from attending or participating in X’s appointments unless directed by Mr H.
17.The parties facilitate X’s attendance at appointments with Mr H for a period of not less than 12 months from the date of these orders, as directed by him, with the Father responsible for Mr H’s fees.
18.Each of the parties, their agents and family members otherwise attend upon and communicate with Mr H only as directed by Mr H.
19.Each parent and the Maternal Grandmother keep the other informed in relation to any illness or injury sustained while X is in their care, including providing the names and contact details of any relevant treating medical practitioners as soon as practicable.
20.Each parent and the Maternal Grandmother advise the other of any change of address or telephone contact number at least 24 hours prior to such change.
21.The parties have leave to provide copies of the following documents to X’s treating medical practitioners:
(a)A true copy of these orders;
(b)A copy of Dr J report dated 2 November 2020;
(c)A copy of the family reports:
(i)The family report of Ms L dated 13 October 2020;
(ii)The family report of Mr K dated 10 November 2021;
(iii)The family report of Mr K dated 8 August 2022; and
(iv)The family report of Mr K dated 16 August 2022
(d)A copy of the following Department of Families, Fairness and Housing documents:
(i)The 91B report dated 23 March 2021;
(ii)The 67ZA response dated 6 October 2022; and
(iii)The 69ZW response dated 23 November 2022
(e)A copy of the reports of Mr H dated 28 November 2021 and 19 September 2022; and
(f)A copy of the reasons for judgment.
22.The parties ensure X attends school on each school day and only be permitted to keep X home from school if they have obtained a medical certificate in relation to same.
23.The parties ensure X is provided with her own bed and sleeps in her own bed each night when at their respective homes.
24.Each party is at liberty to attend all school and sporting events ordinarily attended by parents and to receive information and communication from X’s school, including but not limited to newsletters, reports and school photographs, at their own expense.
25.In the event the parties have not agreed to the high school X will attend by February of the year prior to her commencing high school, the parties will attend mediation in an effort to resolve this issue.
26.Each party is hereby restrained by injunction from:
(a)Denigrating (speaking ill of), criticising, belittling, insulting or abusing the other party in front of or within hearing of the child, or allowing any other person to do so;
(b)Discussing these proceedings, save for time arrangements, with or within hearing of X, or allowing any other person to do so; and
(c)Allowing X access to any court documents or documents related to these proceedings including legal correspondence;
(d)Allowing X to be exposed to family violence;
(e)From filming, video or voice recording X to document her behaviour at, after or around changeovers or to require her to express a view about her living and spend time arrangements.
27.The Independent Children’s Lawyer be discharged 30 days after the date of these orders.
28.In the event that an application for parenting orders or contravention or orders for the implementation of these orders is filed within 36 months, the application be listed before me urgently for directions by arrangement with my Associate and the parties are granted leave to file an urgent application without first obtaining a s 60I certificate.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Cudden & Heyworth has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND:
X has experienced much trauma and change in her first 8 years of life. The Court faces a difficult dilemma. Should X remain living with her father where she feels safe but is subjected to emotional harm where the risks are long term? In the alternative, should she live with her maternal grandmother and half sibling C where she would need to change schools and make new friends which would cause her further upheaval and trauma in the short term?
Due to the number of parties involved, to avoid confusion and for ease of reading I will refer to the main individuals involved by their first and last name.
X’s father Mr Cudden is the Applicant. Mr Cudden was born in 1982 and is 40 years old. He lives alone in and is a self-employed tradesman. He receives considerable support from his mother Ms M who lives nearby.
X’s mother Ms Heyworth is the First Respondent. Ms Heyworth was born in 1986 and is 36 years old. She lives alone and is currently unemployed.
Ms Heyworth’s mother, Ms B Heyworth is the Second Respondent. She is employed as a part time cleaner. Ms B Heyworth was born in 1964 and is 58 years old. Ms B Heyworth was joined to these proceedings on 26 July 2021 by orders of this Court. Ms B Heyworth lives some 40 minutes away from Mr Cudden. Changeovers for X currently occur at a McDonald’s near the half-way point between their suburbs.
Mr Cudden and Ms Heyworth were in a relationship from 2010 until 2015. Their daughter X was born in 2014 and is 8 years old. After the parties separated, X remained in Ms Heyworth’s primary care and Mr Cudden spent time with her. There is a dispute as to what those informal arrangements were, but it is not necessary for me to consider that issue.
In 2016, Ms Heyworth began a relationship with Mr N. Ms Heyworth and Mr N have a child together, C born in 2017, aged 5, who lives with Ms B Heyworth and is subject to a Children’s Court reunification order that is due to expire at the end of January 2023. C’s father, Mr N is recently deceased. Ms Heyworth and Mr N’s relationship was characterised by significant family violence as well as drug and alcohol use.
This case highlights the difficulties and limitations that result from family law being governed by Commonwealth law and child protection being governed by state laws. The Department of Families Fairness and Housing (DFFH) is actively involved with Ms Heyworth, Ms B Heyworth and C. DFFH assessed Ms B Heyworth as being a safe person to care for C and supervise Ms Heyworth’s time with C. DFFH declined the Court’s invitation to intervene for X.
The case has a long and troubling history. At the beginning of the trial, Mr Cudden sought orders for X to remain in his care and to reduce Ms B Heyworth’s care to one night a fortnight, and for Mr K to write a family report once a year so that the Court could review the status of the case. His proposal recognises the very serious concerns the Court holds with respect to future compliance with orders once these proceedings have concluded. DFFH has investigated and provided reports to the Court but has declined to participate as the risks issues with respect to X do not meet DFFH thresholds for intervention. In essence, the Court is being asked to case manage and supervise the family long term. That is not feasible given the resources of the Court and its lack of investigative powers. Ultimately, that order was not pursued.
BRIEF CHRONOLOGY
Mr Cudden commenced these proceedings on 16 October 2019. Interim orders were made on 4 November 2019 by consent for X to spend each week with Mr Cudden from 2pm on Friday until 2pm on Monday.
The parties subsequently agreed to consent orders that required both parties to undergo hair follicle tests at their own expense. On 21 April 2020 as a result of Ms Heyworth failing to provide a hair follicle test and failing to attend court on that occasion, X was placed in Mr Cudden’s primary care and orders were made for X spend time with Ms Heyworth as supervised by Ms B Heyworth.
The first supervised visit was due to occur on 26 April 2020. Mr Cudden withheld X and did not respond to any of Ms B Heyworth’s texts attempting to contact him to facilitate changeover. There were several other occasions when Mr Cudden did not make X available in accordance with the orders.
I made further orders on 12 June 2020, by consent for X to spend time with Ms Heyworth as supervised by Ms B Heyworth from after school Friday through to Mondays and each alternate Tuesday after school until the commencement of school on Wednesday.
Between 5 July 2020 and 22 September 2020, Mr Cudden withheld X for an 11 week period. Mr Cudden did not make any arrangements for X to speak with Ms Heyworth, Ms B Heyworth, or her sister C.
Mr Cudden withheld X for another significant period from 15 May 2021 for 12 weeks and did not respond to any communication from Ms B Heyworth.
Further interim orders were made by a Senior Judicial Registrar on 26 July 2021 restraining Mr Cudden from taking X to any psychologist, counsellor or mental health practitioner without further order of the Court or written consent by Ms Heyworth and the Independent Children’s Lawyer (ICL). Mr Cudden breached this order shortly after, unilaterally booking X for an appointment with a psychologist.
Ms L prepared a family report for the trial scheduled to take place on 9 December 2020. DFFH appeared as amicus curiae on that occasion. The parties entered into interim orders which included at order 19 for the parties to complete the parenting orders program and a post separation parenting course. Ms Heyworth conceded she did not do this. Order 20 required Mr Cudden to engage with O Families immediately to address the matters raised in the expert reports with respect to parenting capacity and concerns about X regressing which is not addressed in Mr Cudden’s affidavit. Mr Cudden did not comply with this order.
The trial was adjourned to 13 December 2021. Mr K was engaged to conduct a further family report as Ms L was not available. Mr Cudden refused to attend the interviews and ignored several attempts to contact him. The trial was subsequently adjourned to October 2022 because of his non-compliance. Further orders were made for Mr Cudden to attend upon Mr K for family report interviews. A notation to the order indicates that Mr Cudden wanted his mother, Ms M, to also be interviewed, and that this was an issue for Mr K to determine. They again refused to attend and failed to respond to communications. Instead Mr Cudden recorded videos of X and sent these to various people including chambers on 3 August 2022.
At an urgent listing before me on 9 August 2022 Mr Cudden sought a further opportunity to engage with Mr K. He was given this opportunity at his expense. Mr Cudden attended the interview and Mr K prepared a third report dated 16 August 2022.
On several occasions when the matter was before me, I have expressed my concerns to Mr Cudden in strong terms about his continuing behaviour in breaching orders, being obstructive, and taking unilateral actions. He fails to see that continuing to act in this way has led to the situation he faces of X being potentially removed from his care.
History with Mr N
The DFFH held concerns about family violence between Mr N and Ms Heyworth whilst she was pregnant with C. Ms B Heyworth says that Ms Heyworth moved into independent accommodation in 2016 and that X went with her when she regularly visited their home. C and X spent regular time with her and Ms B Heyworth says that Mr N did not present as violent to her. This is not the surprising given the nature of family violence.
Ms B Heyworth says that Ms Heyworth and Mr N’s relationship was on and off. Both of them used drugs. As a result on 13 March 2019 the DFFH placed X and C in Ms B Heyworth’s care due to the protective concerns. She says at that time, Mr Cudden expressed confidence in her care of X and did not seek to have X in his primary care because of his work commitments. Ms B Heyworth says that this period was a wakeup call for Ms Heyworth, and she focused on satisfying DFFH’s protective concerns. Ms B Heyworth supervised Ms Heyworth’s time with both girls.
Ms B Heyworth says that in August 2019 and then the next few months she did not see much of Ms Heyworth and the children due to a falling out over her concerns about Ms Heyworth resuming her contact with Mr N.
Ms B Heyworth said she was concerned at that time about Ms Heyworth and Mr N seeing each other on occasion and Mr N attending Ms Heyworth’s home to see C. DFFH became involved again in July 2020, and placed C in her care pursuant to Children’s Court orders. C has been in Ms B Heyworth’s care since that time.
Section 69ZW response during the trial
During cross-examination, Ms B Heyworth indicated that she was due to have a meeting with DFFH in a few days to discuss the reunification plan for C and Ms Heyworth. She said DFFH attends her house fortnightly and discusses how C is going. DFFH have never raised any concerns or allegations against her with respect to her care of either C or X. Ms B Heyworth said despite the difficulties she has with Mr Cudden, if X lives with her she would never prevent X from spending time with him and acknowledges that X loves him, and that he loves X dearly. She feels she is better placed to ensure that X is able to maintain relationships with both sides of her family.
As a result of Ms B Heyworth’s evidence that she expected DFFH to confirm C’s placement with her on a permanent basis, I arranged for one of the liaison officers to give an oral update to the Court. The liaison officer also provided a short written summary which is part of exhibit 4. I outlined my concerns about this case and the invidious position that the Court is in. I raised my concerns about the extreme views that Mr Cudden and Ms M expressed in court, including the statements that Ms B Heyworth is evil and engaging in mind control of which X is exposed to. I raised that this gave me real concerns about X remaining in the middle of two households where there is a real possibility that if the nature of the parties’ relationship continues on the current trajectory, there is a real possibility that X will only maintain a relationship with one side of her family. I also expressed my concern that despite the experts clearly saying that X is not at risk in Ms B Heyworth’s care, Mr Cudden and Ms M cannot conceive of that being the case, and that Ms B Heyworth is seeking that X be placed in her care.
The liaison officer informed the Court that C has been the subject of a family reunification order for almost 2 years that is due to expire on 31 January 2023. Unfortunately the plan had not progressed as hoped due to Ms Heyworth’s non-engagement and the fact that the protective concerns around her substance use and mental health concerns remain unaddressed. The plan has not yet been formally altered to one of permanent care, but those discussions are commencing at this stage. DFFH is considering a ‘care by secretary’ order which means DFFH remains involved with the family and that it remains in the case management phase. If parental responsibility was to shift to Ms B Heyworth, then the case management aspect of the case would close the with the active Children’s Court order in place.
The 69ZW report provided during the trial notes that Ms Heyworth has engaged with drug and alcohol counselling and a family reunification program. It also notes that she had cancelled or missed multiple appointments. She has also failed to comply with regular drug screen requirements.
The liaison officer also confirmed that the case with respect to X remains closed. This is a source of frustration for the Court given DFFH’s ongoing involvement with C, Ms B Heyworth and Ms Heyworth. DFFH would be ideally placed to ensure that X is able to maintain relationships with both sides of her family and that appropriate interventions are put in place. DFFH and the Children’s Court have their own resource pressures. The current risk concerns centre on emotional abuse and long term harm. This is unlikely to reach the threshold for DFFH intervention.
WHAT ARE THE ISSUES THE COURT MUST DETERMINE?
The issue for the Court is a difficult balancing exercise of short, medium and long term risks. I must assess:
(1)Is there an unacceptable risk of abuse to X in Ms B Heyworth’s home?
(2)Is there an unacceptable risk of abuse to X in Mr Cudden’s home?
(3)How can the risks be ameliorated?
(4)Are there any other conditions or protective measures which should be put in place?
(5)Who should exercise parental responsibility for X?
The assessment of risk is focused on the risks in Ms B Heyworth’s care and/or Mr Cudden’s care. Ms Heyworth acknowledges that she is not able to have her children in her care and that she has to work on her mental health following the various traumatic events that have transpired in her life. She supports Ms B Heyworth’s application for X to live with her.
The allegations of risk Mr Cudden makes with respect to Ms B Heyworth include subjecting X to emotional and psychological abuse, including mind-control and denigrating the paternal family, as well as physical abuse.
The allegations of risk in Mr Cudden’s home centre around emotional and psychological abuse, including filming X in distress and denigrating the maternal family.
During closing submissions counsel for the ICL, whilst acknowledging the troubling evidence heard from Mr Cudden and Ms M, submitted that X should remain living with her father particularly because of the trauma and upheaval she has already experienced. The ICL acknowledged that there are likely to be further problems that will arise in the future and requested the Court to make an order that would have the matter listed before me if possible at short notice should any applications be made in the next 3 years and that s 60I should not apply to that application.
The ICL submitted a proposed minute after the hearing which includes holiday arrangements which are drafted in a way to avoid the confusion that took place in 2021. The ICL indicated that the minute had not been circulated but was largely consistent with their case outline. As the proposal was not canvased during submissions, procedural fairness requires me to give the parties an opportunity to respond. I caused chambers to write to the parties on 7 December 2022 giving them that opportunity. Ms Heyworth’s lawyer provided brief submissions by way of email on 13 December 2022, indicating that Ms B Heyworth supported the submissions. Mr Cudden did not reply.
MR CUDDEN’S PROTECTIVE CONCERNS
In his trial affidavit Mr Cudden says he has always had to be protective towards X because of Ms Heyworth’s excessive alcohol use, drug use and dangerous relationships.
DFFH involvement informing Mr Cudden’s concerns
Mr Cudden says his protective concerns heightened when he learnt that there were Children’s Court proceedings with respect to C. He says that there were times when he did not believe Ms B Heyworth was doing all that she could to mitigate the risks with respect to Ms Heyworth’s drug use and violent partners however does not give any examples both in his affidavit and during cross-examination. Mr Cudden also says that subpoenaed material has caused him further concern as he read child protection reports about the violence and neglect that occurred in Ms Heyworth’s home with her then partner Mr N that compromised the children whilst in their care.
Mr Cudden says that around the time he commenced the proceedings he also contacted DFFH stressing his concerns about the risk to X. He claims that they told him they would open a file and he expresses his frustration about the process and delays but does not provide any other detail.
Mr Cudden has no confidence in DFFH and has repeatedly been obstructive and refused to engage with them when they have carried out investigations. When cross-examined about this, Mr Cudden said that DFFH betrayed his trust a long time ago. He refers to serious errors that DFFH has made and said “It’s all over the Internet” and that everybody knows about it. Presumably he is referring to early contacts he made with DFFH to express his initial concerns however does not provide any detail or context for his complaints. What is also clear is that Mr Cudden treats with suspicion and concern any interviews by DFFH and the ICL to X without him being in control. The implication is that they are somehow acting in bad faith and traumatising X, whereas it is perfectly appropriate and indeed necessary in circumstances such as this for DFFH to carry out interviews without notice and by necessity that will often involve talking to a child at the school. It is clear from DFFH’s records that Mr Cudden refused multiple attempts by DFFH to interview him. If he had cooperated with DFFH they might not have needed to do so.
Breakdown of Mr Cudden’s relationship with Ms B Heyworth
In his trial affidavit, Mr Cudden refers to an incident in mid-2020 where Ms B Heyworth returned X to his care one day early, and complains that she did not disclose this incident to him and only later found out from the ICL that an incident had occurred between Ms Heyworth and Mr N. The criticism of Ms B Heyworth in this respect is unclear. It appears to be that she did not provide him with details as to what occurred but this is missing the important point. Ms B Heyworth acted protectively by returning X to his care. Mr Cudden has previously acknowledged times where Ms B Heyworth has notified him when there have been risk factors. Despite this, he continues to feel that her loyalty to Ms Heyworth is greater than her willingness to inform him of the risks to X. That is a serious allegation to make which is not made out on the evidence.
Mr Cudden states that he has lost trust in Ms B Heyworth and that her loyalty to Ms Heyworth is greater than her willingness to discuss matters with him. He provides three examples of incidents that informed his position in his trial affidavit. Ms B Heyworth was not cross-examined about these three incidents.
The first incident occurred on 26 June 2020 when Mr N attended Ms Heyworth’s home and assaulted her in the presence of C. Mr Cudden claims that Ms B Heyworth did not inform him of this incident and that he was only made aware through X as she disclosed to him she had observed these incidents. The difficulty here is that he assumes Ms B Heyworth was aware of this at the time of the incident. This was not put to her in cross-examination.
The second incident occurred on 4 July 2020 when Mr Cudden discovered that Ms B Heyworth notified DFFH that she had found on Ms Heyworth’s iPad references to her attempting to purchase drugs. This incident was investigated by DFFH. Mr Cudden claims that Ms B Heyworth did not disclose this to him during changeover. It is unreasonable of Mr Cudden to expect Ms B Heyworth to provide him with photos of the messages on the iPad.
Mr Cudden appears to show no appreciation for the turbulence going on at that time and that the most important aspect is Ms B Heyworth proactively returning X to his care and telling him of the risk. While it was appropriate for Ms B Heyworth to provide DFFH with those messages, she had no obligation to provide them to Mr Cudden and it is difficult to see how providing this to him would have contributed to X’s protection. He also complains that Ms B Heyworth did not tell him about these issues at changeover, however it would have been incredibly inappropriate to discuss those issues at changeover in X’s presence.
The third incident occurred sometime in 2021. X was returned to Mr Cudden with a bruise and a bleeding red mark on her back. Mr Cudden claims that when X was telling him about this, she was whispering and hiding behind a couch. When Mr Cudden attempted to coax what happened from X, she said “even [when] I whisper things that happen at Mum’s house, they will still hear me”. This will be explored in further detail below at paragraphs 58-61.
Mr Cudden’s criticisms of Ms B Heyworth in this regard are unfounded and unreasonable. I find that Ms B Heyworth has acted protectively with respect to both X and C.
In the family report of Ms L dated 15 October 2020, Mr Cudden described Ms B Heyworth and Ms Heyworth as “narcissistic and violent women”. In the interview he said in the past he had trusted Ms B Heyworth but now thought she was as manipulative as Ms Heyworth, and was responsible for Ms Heyworth’s drug use, continued relationships with dangerous men, and complains he thought Ms B Heyworth had good intentions, she enabled Ms Heyworth’s addictions and was more concerned about protecting Ms Heyworth than her grandchildren.
Mr Cudden also complained to the Ms L about Ms Heyworth indoctrinating X not to speak to him about issues that bothered her, and that X would refer to having secrets and would whisper that Ms Heyworth had told her she could hear X even from far away. He complained that he wanted these tactics to stop and further complained that Ms B Heyworth was fighting Ms Heyworth’s battle.
Mr Cudden complains that X has disclosed abuse whilst in Ms B Heyworth’s care. He refers to Ms B Heyworth and Ms Heyworth denigrating him in the presence of X and makes allegations to X swearing and crying after changeover and on one occasion, spitting in his face, which X said Ms Heyworth told her to do.
During cross-examination, Mr Cudden said that he “has always been guarded about having Ms B Heyworth as a supervisor” and he emphatically stated that Ms B Heyworth was an “abuser and needed to be exposed”. He was unable to provide any specifics. There is no evidence to support Mr Cudden’s complaints against Ms B Heyworth. His evidence in this regard was very troubling.
Both Mr Cudden and Ms M’s affidavits are sanitised, filtered by being prepared by a lawyer. They say the right things, for example Mr Cudden says that he recognises that Ms Heyworth should be meaningfully involved in X’s life and that he has always tried to be supportive of it. These are superficial statements that lack any depth and are inconsistent with his oral evidence during cross-examination. Mr Cudden conceded that his preference would be for X to not have any involvement with the maternal family due to the harm that he alleges she is subjected to whilst in the care of the maternal family. Mr Cudden’s trial affidavit although prepared with the assistance of his lawyer, lacks detail to provide a factual and contextual basis for his concerns about Ms B Heyworth. He was put on notice that he needed to address his allegations of risk in his trial affidavit as his affidavit filed for the 2021 December trial and failed to do so.
My impression particularly after hearing both Mr Cudden and Ms M’s evidence is he makes these comments to appease the Court with respect to its concerns about himself. It is quite apparent from hearing his evidence that these comments do not reflect his actual views and beliefs. In making this observation, I am not critical of Mr Cudden’s lawyer who is of course bound by instructions.
Incredibly, Mr Cudden refers to himself as accepting that X needs to have a meaningful relationship with the maternal family. He says that he “feels I have been very accommodating to allow this to happen.” This statement however ignores his unilateral and lengthy withholdings of X and his obstruction in failing to engage with DFFH and the multiple family reports prepared by the Court. Mr Cudden goes on to say that he has always tried to be supportive of X having a relationship with the maternal family and says that he never wanted to prevent X from not knowing Ms Heyworth or spending time with her. He says however that the risks including Ms Heyworth’s drug use, alcoholism, family violence incidents, and psychological instability has prevented this and says, “I wish I had stepped in to protect X sooner." The difficulty is that Mr Cudden is either unwilling or unable to accept the expert evidence which addresses the risk issues he raises.
It is important to draw a distinction between the risks Ms Heyworth poses and the risks he says Ms B Heyworth poses. Somewhat ironically he refers to Ms B Heyworth and Ms Heyworth being enmeshed and contrasts their relationship with his relationship with Ms M. He and Ms M use similar phrases in their evidence and it is clear that Ms M shares his delusional thinking about Ms B Heyworth and her risks to X.
Mr Cudden refers to the risks identified by the s 91B report dated 23 March 2021 and refers to Ms Heyworth and X’s reports of feeling protected and safe with him. He does not refer to Ms B Heyworth. The 91B report reflects the risks focussing on Ms Heyworth and Mr N. The report refers to Ms B Heyworth being assessed as a suitable carer with DFFH placing C in her care.
My impression from reading Mr Cudden’s affidavit is that he has, whether consciously or not, reconstructed his views of Ms B Heyworth based on subpoenaed material he has read. The best example of this is his reference to Ms B Heyworth allowing Mr N to live with Ms Heyworth and X at her residence for a number of years, knowing that he was an alcoholic. This was not an issue raised in the four reports provided by DFFH which is unsurprising as it appears to be inaccurate. In fact they moved into independent accommodation. Furthermore, Ms B Heyworth and Ms Heyworth fell out because of Ms B Heyworth’s protective concerns.
From reviewing the material and considering Mr Cudden’s evidence, it appears that he has shifted his focus with respect to the risks that Ms Heyworth and Mr N presented to X to Ms B Heyworth. Mr Cudden strongly resents Ms B Heyworth being a party to these proceedings. What he fails to understand is that Ms B Heyworth did not have a nefarious plan to intervene in court proceedings and have X in her care, rather Ms B Heyworth was a reluctant participant and was joined to the proceedings by the Court. I was so concerned about the parenting capacity of both Ms Heyworth and Mr Cudden that I noted in my orders on 22 September 2020 my concern that neither parent may be a suitable carer for X. This is also something that Ms L raised in the first family report.
Allegations of physical abuse perpetrated by Ms B Heyworth
Both Mr Cudden and Ms M refer to the injuries to X’s back after she returned from a weekend with Ms B Heyworth as being one of the worst examples of abuse. They refer to X’s back having bruises and a mark and complain about Ms B Heyworth making no mention of this at the handover. Given the lack of communication and the negativity between the parties, this is hardly surprising. It also assumes that this was an obvious and severe injury. There are no photographs annexed to their affidavits nor was there any photographs tendered. Mr Cudden and Ms M only make vague references to this incident in their affidavits.
Ms M said that X told them that she was in the bedroom hiding under the bed and she felt something sharp on her back. X said that Ms B Heyworth was the only one in the room and referred to Ms B Heyworth warning C to be careful that she did not hurt her back on the bed like X did. Significantly Ms M said “we were just assuming that Ms B Heyworth was doing it to cover herself, to cover her tracks.”
Ms B Heyworth was asked about the incident where it was alleged that she had hit X on the back which caused the bruise on her back. She said that she was aware of this occasion, and the injury was a result of X and C playing hide and seek. When X crawled under the bed and when she was found by C she had scraped her back on the bed frame which resulted in a small bruise on her back. Ms B Heyworth further claimed that she told Mr Cudden about this at handover and then left. She also said that she does talk to him occasionally at handovers and will, for example, tell him if she has forgotten X’s jumper or some other item and that it is usually Mr Cudden who does not respond or mumbles something that she cannot hear.
In fact, what X said is consistent with Ms B Heyworth’s evidence that X scraped her back against the bottom of the bed when playing hide and seek underneath it. I prefer Ms B Heyworth’s evidence to Mr Cudden and Ms M’s with respect to this incident.
Allegations of emotional abuse perpetrated by Ms B Heyworth
Mr Cudden makes allegations of emotional abuse perpetrated by Ms B Heyworth towards X. At no point during cross-examination was he able to clearly articulate with specificity the emotional abuse that Ms B Heyworth subjected X to:
Mr Allen: So now is your opportunity to explain that?
[Mr Cudden]: Yes. Okay. Yes. Yes. So just using children as pawns, like, playing one against the other, just triangulating all the family members, like – you know, like putting the – for example, putting everyone where you want them and then just – yes, just a lot – you know, just opportunistic. Just taking advantage. Like, the – like, I can’t exactly pinpoint because she has issues verbalising because it’s fear based and I can’t ‑ ‑ ‑
Mr Allen: No, no?
[Mr Cudden]: delve into the intricates, like ‑ - I would because of her age. I mean, she ‑ ‑ ‑
Mr Allen: the difficult is, is that what you’ve just said then
[Mr Cudden]: Yes.
Mr Allen: is completely generalised?
[Mr Cudden]: Yes. So just trying to give you ‑ ‑ ‑
Mr Allen: Right. There’s no examples?
[Mr Cudden]: the whole picture of ‑ ‑ ‑
Mr Allen: Well ‑ ‑ ‑?
[Mr Cudden]: Like, it’s, like, the nature of the beast. It’s a
Mr Allen: [Mr Cudden]? ‑ ‑ ‑
[Mr Cudden]: Yes, very, very mind control, manipulate.
Mr Allen: ‑ ‑ ‑ you’re being asked to give an example?
[Mr Cudden]: Mind control, mind control. To hopefully – she – [Ms B Heyworth] sees [X] as an extension of herself. Okay. So she wants – she – it’s just total mind control. Even all the orders, with all due respect, that [Ms B Heyworth] put in place with the Registrar, for example, is just – it gives you an idea of the – it’s just complete control, like, mind control. She wants to keep the hook into [X]. Like, if you have a look at the orders that are structured through the Registrar previously she wants to – she just wants – it’s just – it’s a hook, it’s a hook. So, you know, there’s ulterior motives there. Okay. And, look, I can’t – like, as I said, I’m not a psychologist. So I don’t know the exact right terminology but there’s – like, she – they’re very, very crafty people. Very, very, very cunning, with all due respect. Opportunist. So if you give them five minutes or one day with the child, they’re going to abuse it. Like, they just abuse their times. That’s what they do. They want to hijack the mind, turn the child against – like, it’s just – like, every – from every angle on every level you can think of. So that’s – and it’s fear based as well. That’s what – that’s [Ms B Heyworth]’s main go-to. So it’s predatory. Yes.
Mr Allen: Mr ‑ ‑ ‑?
[Mr Cudden]: Manipulative, cunning insidious.
Mr Allen: can I –
[Mr Cudden]: yes?‑‑‑Just, yes, extremely crafty and just uses every entity as well, every single entity to her advantage. Like, plays one against the other.
It was disturbing to hear him go so far as to suggest Ms B Heyworth has some sort of hold over the Registrar. There is a real disconnect in Mr Cudden’s material. He has had many opportunities to specifically identify the risks of harm in Ms B Heyworth’s care, however he has been unable to do so within his trial affidavit and during cross-examination. Yet he uses extreme language to refer to Ms B Heyworth at several points including describing her as “cult-like, rat cunning, manipulative, and opportunistic”. When speaking about her his evidence was illogical and difficult to follow.
The following exchange is troubling:
[Ms B Heyworth]: I would like to just say one more thing. Is it true, [Mr Cudden], that you honestly believe that I would hurt [X] when I love her and I would never hurt her?
[Mr Cudden]: Well, she’s eight. She can’t verbalise things because she’s absolutely frightened of you, because you’re an abuser.
[Ms B Heyworth]: Well, I don’t agree with that
[Mr Cudden]: Yes. You are. You’re an abuser and you target vulnerable innocent children because they’re easy targets and you know
65After I had interjected, the parties continued:
[Ms B Heyworth]: So my question was, do you honestly believe that I would hurt [X]? I love her with all my heart and I’m pretty sure you know ‑ ‑ ‑
HER HONOUR: Hang on ‑ ‑ ‑
[Mr Cudden]; You don’t love her.
Her Honour: ‑ ‑ ‑ you’ve just got to let him answer that
[Mr Cudden]: You do not love her at all.
It is extremely troubling that Mr Cudden cannot even contemplate X being placed in Ms B Heyworth’s primary care, saying that X would be completely destroyed by that decision. It is also concerning that he was unable to articulate any concerns that the Court has expressed about him, despite the Court being extremely blunt with him on two occasions. It was hoped that he would take on board the warnings. The difficulties for the Court has been his repeated breaching of Court orders and obstruction of process. The concern has not only been with respect to a failure to recognise the authority of Court orders, but more importantly, the impact that his actions have had on X, which he cannot fathom at all. For X’s sake, Mr Cudden needs to grapple with this.
Mr Cudden’s perception of Ms B Heyworth
It is troubling to me that Mr Cudden holds such a strong, and it appears distorted, view of Ms B Heyworth that it is impacting on his ability to protect X from psychological and emotional harm that comes from him and Ms M. It is clear that Mr Cudden’s core beliefs about Ms B Heyworth was somewhat sanitised in his trial affidavit material prepared by his legal representative and it is very clear that he has at times been given legal advice that he does not agree with.
At the same time as having such strong concerns for X’s safety, Mr Cudden is resistant to receiving help, and despite proclaiming confidence in the experts, it appears that nothing will convince him that X is safe in Ms B Heyworth’s care.
Mr Cudden’s answers became more concerning and bizarre during cross examination:
Ms Agresta: If [Mr H] is correct ‑ ‑ ‑
[Mr Cudden]: Yes.
Ms Agresta: ‑ ‑ ‑ in that your daughter, [X] ‑ ‑ ‑
[Mr Cudden]: Yes.
Ms Agresta:‑ ‑ ‑ is someone who is aware of your view of the family and such that she feels herself she can’t speak in a positive about her – about her maternal family, you would have to say, wouldn’t you, that it’s quite possible from you she gets a very, very, very negative and warped sense of that family, and probably feels unsafe with them because you make her feel unsafe because of the way you describe them and talk about them and feel about them?
[Mr Cudden]: Okay. So [X] is very smart. So as – so she learns from what she sees and hears. I’ve always – I’ve always taught her to always, you know, keep your eyes and ears open wherever you are. You know, I’ve taught her to the best of my ability with everything in life. Unfortunately I had to teach her a lot – a lot of life skills at such a young age to give her the best chance to fend for herself, unfortunately. But, you know – that – it will go a long way. But, you know, in – regarding – look, she – I – she has a – she has her own opinion of people. She learns over – over a period of time, and that’s it. I – I don’t discourage. Okay. I don’t discourage but I’m not – I’m not an enabler either. Okay.
Ms Agresta: What does that mean?
[Mr Cudden]: I’m not an enabler.
What is clear from his evidence is that he acknowledges that he has to comply with orders even though he does not think they are in X’s best interests and when X becomes older she will be able to verbalise the abuse she has experienced in Ms B Heyworth’s household. He is convinced that Ms B Heyworth will be exposed as an abuser when X is able to articulate it. I am greatly concerned as to how Mr Cudden will react when this does not happen.
Mr Cudden continues in a similar vein in several of his answers. Incredibly when he was asked again about children being in the middle of high conflict between their parents and how they behave he said “the difference is the conflict is one-sided here.” That shows a concerning lack of insight. He then becomes even more extreme in his descriptions of the material family as being cult-like and intentionally causing chaos.
I am greatly troubled by Mr Cudden’s evidence in cross-examination that he is a purported “whistle-blower” and that Ms B Heyworth is an abuser and will “never stop” until she is exposed. It is apparent that no assurance from DFFH, the various experts or the Court in their assessments of risk will persuade him. Indeed, his emails are those often written by Ms M and have an overlaying tone of paranoia where the lawyers are against them, preventing documents from being provided to counsel and the ICL, as well as being extremely resistant to participating in the family report by Mr K. Mr Cudden has only recently come to accept Mr K’s involvement because he has recommended a reduction in Ms B Heyworth’s time.
Mr Cudden and Ms M recognise on a basic level that it is important for X to have a relationship with her sister C, and perhaps because C is only five, they have not yet attributed any malintent or malfeasance by her.
When giving evidence, Ms B Heyworth said that she cannot say what goes on in Mr Cudden’s mind but thought that Mr Cudden’s strong focus and distrust of her was because if she were found not to be a suitable supervisor and carer for X, that he would achieve the outcome that he ultimately seeks which would be Ms Heyworth having limited professionally supervised time with X. There is considerable merit in this as it appears that Mr Cudden sees Ms B Heyworth as a threat, particularly since she joined the proceedings as a party. Mr Cudden does not derive any comfort from the fact that DFFH has assessed Ms B Heyworth as being a safe and appropriate carer for C, and indeed because there are Children’s Court proceedings with respect to C, DFFH is regularly involved with Ms B Heyworth meeting with her at her residence once a fortnight.
Mr Cudden mischaracterised how Ms B Heyworth became involved in the proceedings. The circumstances of her being joined as a party are discussed further at paragraphs 130-132.
Allegation of Ms B Heyworth strangling Ms Heyworth
Ms M said that X reported being exposed to Ms B Heyworth strangling Ms Heyworth when they were arguing about money. It is troubling that both Ms M and Mr Cudden’s response to hearing this was to rely on X to tell Mr H about this incident. They did not make any report to DFFH. They did not contact the ICL. Ms M then sought to justify their lack of response by saying that although X was exposed to domestic violence, X was not physically harmed:
[Ms M]:Well, it was different to the psychological abuse. I mean, it was domestic violence in front of [X], but the – the reason [Mr Cudden] withheld her was because they were doing it to her, whereas this was being doing – this was being done in front of her, like, domestic violence it’s still violence and it’s still abuse, but because it wasn’t actually – [X] wasn’t actually harmed, we just thought, well, you know, what – what could you do? You know, what really, what could we do, because we had, you know, some – we breached because we – I mean, I think [Mr Cudden] said ‑ ‑ ‑
Ms Agresta: Yes, go on, you breached because?
[Ms M]:‑ ‑ ‑ that he breached because – because of the psychological abuse that she was going through.
Ms Agresta: Yes?
[Ms M]:She was hysterical, but the – you know, yes, so the domestic violence obviously wasn’t actually – [X] didn’t actually get harmed, but it was actually harm in itself, the domestic violence.
Ms B Heyworth and Ms Heyworth maintain that there was never an incident where X saw Ms B Heyworth choke Ms Heyworth. Ms Heyworth says in August 2019 she had a serious argument with Ms B Heyworth which she says resulted in a physical exchange between them which she does not describe. She claims that as a result of that incident, Mr Cudden withheld X from her and threatened to report her to police and DFFH. Ms B Heyworth also said that there was only one major incident between the two of them which occurred prior to the court proceedings in 2019, when she raised her concerns about Mr N to Ms Heyworth. I accept their evidence in this regard.
Ms M’s perception of Ms B Heyworth
As is to be expected, Ms M’s affidavit is extremely supportive of Mr Cudden and the job he has done in caring for X. What is notable is the language she uses when referring to the maternal family in contrast to the paternal family.
When complaining about problems with the orders since December 2021 and the miscommunications about these orders, she refers to Ms B Heyworth as taking upon herself to change orders without any prior agreement. Mr Cudden does not address this in his affidavit and in part Ms M is giving second-hand hearsay evidence that he could have given her. Ms M also refers to X’s relationship with her extended family and it is clear from her wording that she is talking about the paternal extended family and not the maternal family, and that she and Mr Cudden are consciously integrating X with extended family members and making arrangements each holidays.
Ms M says she keeps notes on her phone of significant events concerning X and provides a couple of examples of matters such as incidents where X had complained about returning from Ms B Heyworth’s home. There were some problems arising out of the parties interpreting the orders.
Ms M describes X as “very independent and strong willed”. This does not sit easily with both hers and Mr Cudden’s descriptions of X being unable to express herself and articulate risks. I was troubled by Ms M’s evidence when she was cross-examined. She took care to distance herself from Mr Cudden’s decisions to withhold X, but it became clear that she agreed with and supported his decision. Both she and Mr Cudden refer to X as being strong minded and strong willed but then refer to her being unable to verbalise the abuse perpetrated by Ms B Heyworth because she is so young.
In a similar manner to Mr Cudden, Ms M was unable to articulate the risks posed by the maternal family and resorted to using the same phrases as Mr Cudden being that X has a lot of “fear-based” trauma that she “cannot share with them”. In many instances during her cross-examination she referred to “we” instead of Mr Cudden or herself individually. She is also confident that X will be able to share and disclose the abuse when she is older.
When it was put to her that X is saying different things to different adults in order to appease them, she could not accept that as a possibility and reiterated that X never lies. She identified X’s relationship with C being important, but similar to Mr Cudden fell back on her understanding that the Court is very strict about children seeing both sides of the family, the implication being that the Court prioritises this over any abuse concerns.
MR CUDDEN’S BREACHES OF ORDERS AND UNILATERAL ACTIONS
There are multiple occasions throughout Ms Heyworth and Ms B Heyworth’s trial affidavits where Mr Cudden has failed to attend changeovers and failed to respond to text messages. He has also consistently acted obstructively, failed to engage with DFFH and the Family Report writer, and withheld X for long periods. If he had engaged with the services then he would have had the opportunity to articulate his risk concerns and have them investigated.
Mr Cudden’s failure to respond to communication
A repeated theme of Mr Cudden is his failure to respond to messages with respect to changeovers and his failure to communicate when he failed to provide X to handovers in accordance with the orders.
Mr Cudden’s failure to respond to text messages was subsequently addressed by interim orders made by a Senior Judicial Registrar on 26 July 2021 ordering Mr Cudden to provide a timely response within one hour of receipt of any communication in relation to arrangements for X. This order was repeated in the consent orders made when the trial was adjourned on 14 December 2021.
When cross-examined by Ms B Heyworth, Mr Cudden said he would not have any problem communicating regarding X’s best interests, and that is it only when text messages are “full of manipulation” and “twisted” that he would not respond as an explanation to his behaviour. However, there is no evidence to support Mr Cudden’s allegations here. He was not able to point to any texts supporting his claim. Rather, the evidence shows Mr Cudden being completely unreasonable and obstructive. These are well documented in the affidavit material. A clear example of this is his failure to respond to Ms B Heyworth’s messages to have her husband attend changeover when she raised her inability to drive after a foot operation.
It is disingenuous for Mr Cudden to complain, as he did during cross-examination, that the order is controlling. The ICL includes this order in their minute of order sought. Such a restrictive final order is problematic from the perspective of enforcement. There is no evidence that Ms B Heyworth has ever sent communication that was inappropriate and not related to X to Mr Cudden. In contrast there is ample evidence of Mr Cudden simply not engaging with communication resulting in Ms B Heyworth waiting at changeover and Mr Cudden not turning up with X. However, because of the pattern exhibited by Mr Cudden, it is clear that it is necessary to place an obligation on him to respond to texts and emails within 12 hours. Without an express obligation on Mr Cudden to respond, I am not confident he will respond to such messages.
Unilateral actions taken by Mr Cudden
There are several occasions where Mr Cudden has taken unilateral actions and obstructed the progress of these proceedings. It is not necessary to recount every instance.
At the commencement of her cross-examination of Mr Cudden, counsel for Ms Heyworth asked him if he recalled any of the concerns raised by the Court on previous occasions. When she sought to clarify that she was not asking him to agree that those concerns were justified, only that he was aware of them, it was surprising that he claimed he did not recall what those concerns were. When pressed further he could not identify what counsel addressed and then said “I do not remember doing anything wrong as a parent regarding my daughter.” He then went on to say that “if anyone within the courts thinks I have not done the right thing I cannot do anything about that”. There was a real disconnect with his answer here as he failed to identify any failings in his conduct. It is extraordinary that he could say that he has listened and respected everything the Court has said, but was unable or unwilling to specify any of his conduct to address this and said it had all been dealt with in the past. This is in spite of the fact that he was bluntly told more than a month prior to the Final Hearing that he was facing a potential application for change of residence because of his conduct.
When pressed further, Mr Cudden then said he took full responsibility for his actions and when asked what specifically he has taking responsibility for he said “the little things that have happened that – like, you know, when – when, unfortunately, I had to withhold X when she was – you know, and I was – X, unfortunately – yes, I was penalised for that period X was penalised more so.”
His wording is significant as it contradicts any sense of him taking personal responsibility for his actions at all, but that rather it was something that he had no choice over.
When Mr Cudden said he had learned his lesson what he was referring to was that in his view both he and X were penalised for his over holding of X, and that a Court order for X to spend more time with the maternal family resulted in both X and himself suffering because they could not see each other on those weekends. Conversely, he sought to minimise any impact on X saying that X only spent alternate weekends with Ms B Heyworth and Ms Heyworth. He again said that he has learned his lesson and subsequently complied with orders. What is of real concern is the fact that he did not show any insight into any detriment to X in being cut off from the maternal family, including her sister C, for weeks at a time without explanation. Mr Cudden then explicitly said that he had done the best he could at the time as he was protecting his daughter when nobody else would. He says he has shown remorse for his actions by complying with orders and again says he takes full responsibility and genuinely apologises to the Court, and that he did not mean any disrespect and did not mean not to comply. As this was explored further, it was clear that although he was apologetic for not complying with Court orders, he also was of the view, and remains of the view, that he had a sense of duty of care to protect X from Ms B Heyworth and that his real regret is that the Court did not agree with him as to the supposed risks of the maternal family.
After not seeing the maternal family for three months, Mr Cudden’s proposal was for X to spend professionally supervised time at a contact centre two hours a month with Ms Heyworth. Mr Cudden was unable to reflect on how X would have felt not seeing Ms B Heyworth, Ms Heyworth and her sister C for three months and said he was unable to say anything further as he was not a child psychologist, but then came back to X relying on him to protect her from the abuse perpetrated by the maternal family.
As observed earlier, the distinction is being made between the risk to X in Ms Heyworth’s care and the risk to X in Ms B Heyworth’s care. There is no doubt that X and C were unsafe when living with Ms Heyworth due to her drug use and the violence of Mr N. This fact is not contested and indeed the DFFH assessed at the time that it was not safe to leave C in Ms Heyworth’s care, but assessed that Ms B Heyworth was a safe person to look after C on a full-time basis and to supervise the time between Ms Heyworth and C. This similar risk to X had been addressed in the interim orders made 14 December 2021 where X was to spend time in Ms B Heyworth’s care at her home and with Ms Heyworth as supervised by Ms B Heyworth.
By the time of the Children’s Court order on 9 July 2020, there could be no doubt the risk had been properly addressed by Ms B Heyworth supervising Ms Heyworth’s time. When it was put to Mr Cudden that he did not have regard or take into account what the authorities concluded after thorough investigation and involvement as he thought he knew better, he referred to DFFH having a long history of placing children in danger, and making some serious mistakes. He eventually accepted that by 9 July 2020 he knew that both the ICL and DFFH assessed that it was safe for X to spend time with Ms Heyworth and C as supervised by Ms B Heyworth. Despite this, he continued to withhold X until September 2020. Significantly he did not make an application to seek to vary or suspend the interim orders. Mr Cudden rejected the suggestion that it would have been safe for X to have phone communication or video communication with the maternal family over that period of time, and referred to X being petrified of Ms B Heyworth and then claimed that he was following X’s instructions despite her being 6 at the time, saying that she did not want anything to do with Ms Heyworth after confessing to him about the abuse that has occurred. He said that the last thing he wanted to do is to make her communicate with the person she is afraid of. He was also unable to accept that it was possible that X was picking up on his distress and his belief that she was in danger. This is troubling.
It was clear from his answers in cross-examination that if time has to occur at all, his preference would be for an independent supervisor to supervise the time between Ms B Heyworth, Ms Heyworth, C, and X. He also said this in his trial affidavit, but also acknowledged that no court orders had required professional supervision. In cross-examination he said that it would give him more confidence if an authority figure could guarantee X’s safety as he wants her to be safe and happy.
The difficulty with this proposal is that firstly, no one can give an absolute guarantee of safety at all times and more importantly, several authorities have assessed that X is not at risk in Ms B Heyworth’s care, including two family consultants, a child psychologist and the numerous DFFH investigations. It is clear that Mr Cudden is unable to accept these conclusions. Furthermore, at the same time as claiming X was at risk, he repeatedly refused to engage with the authorities tasked with investigating the risk. Mr Cudden was unable to articulate either in his written material or during cross-examination as to how DFFH had failed or previously acted in an adverse way towards him. Mr Cudden describes his actions as if he was not in control of them and that he was a passive bystander. When giving answers in cross-examination, he often spoke in the passive voice conveying the impression that these choices he made were outside his control rather than him being an active protagonist.
Ms B Heyworth refers to X’s first visit on 29 July 2021 after not seeing the maternal family since 16 May 2021. She deposes that X was excited to see them and talked about how much she missed them and that she had asked Mr Cudden why she had not been allowed to see them. Ms B Heyworth was concerned about Mr Cudden talking to X about the proceedings after X told her that he got into trouble with the courts just looking after her. She says after discussing these comments with Ms Heyworth, they decided to consent to X seeing Mr H.
VIDEO RECORDINGS OF X
On 3 August 2022, Mr Cudden sent an inappropriate and concerning email to my chambers that attached three videos that he took of X. He also sent the email to the school, the GP and Mr K, but not to Ms Heyworth’s lawyers, the ICL or Ms B Heyworth. These were brought to my attention at the compliance check on 9 August 2022. I directed my chambers to provide the videos to DFFH.
The first video is of X in the car while she is holding a photo of Mr Cudden. Mr Cudden and Ms M can clearly be heard consoling X. X indicates that they are recording her for Mr H. The recording lasts for about two minutes. What is significant about this is that neither Mr Cudden nor Ms M stop the recording to comfort X, but rather continue to film her showing considerable distress.
The second video lasts for three minutes and 20 seconds and it shows X in considerable distress crying and upset. What is significant about this is that Mr Cudden asks her several leading questions in a clear attempt to prompt X to make disclosures against Ms B Heyworth. At one point he says to X that everything is all right however he does nothing to comfort her and continues to film her. Whenever X started to quieten he prompted her again about her wetting her pants while she was with the maternal family that weekend. X would then make the same complaints and talk about being too scared to get her pants out of the wash.
The third video is taken of X at home. She is crying and saying that she does not want to leave Mr Cudden again. X is becoming more distressed and is saying that she does not want to leave him to go to school and Mr Cudden can be heard telling her that it is safe at school, but again he continues to record her rather than stopping the recording to comfort her.
It is extremely troubling that neither Mr Cudden nor Ms M were able to identify any concerns about their actions during cross-examination. It is clear that they thought these videos would vindicate their concerns about X being abused in Ms B Heyworth’s care, but they do the opposite. I expressed my very strong concerns with the videos when they were first tendered in August 2022 about the emotional abuse Mr Cudden engaged in videoing her and continuing to video her and in Ms M failing to intervene
Significantly, Mr Cudden says he needed to take strong action by taking these videos but at the very same time he refused to engage with Mr K and DFFH. He could have and should have raised his concerns with the experts. This is consistent with his conduct throughout the proceedings including withholding X for weeks at a time but failing to bring an application to suspend time. Rather than any alleged abuse escalating with the maternal family, it is Mr Cudden’s paranoia and anxiety that escalated as the trial dates drew nearer.
When cross-examined about the videos, Mr Cudden said his intention was to make a strong impact. Despite this, both Mr Cudden and Ms M were unable to accept that taking these videos of X was emotionally abusive and manipulative and were unable to engage with views that do not mirror their own. This is illustrated by the exchange between Ms Heyworth’s counsel and Mr Cudden:
Ms Agresta: [Mr Cudden]?
[Mr Cudden]: Yes. I’m listening.
Ms Agresta:If [Mr H] is right about what your daughter said about those videos – let’s assume that your daughter said that – what do we make of that, that she did it to show you she loves you? What do we make of that?
[Mr Cudden]: Well, there’s nothing I can say about what [Mr H] says, [Mr H]. That’s her psychologist. So I’m not sure how to answer that question, with all due respect. I – like, I just don’t know how to answer that question. Not sure.
Ms Agresta:But you’re the one who talks about your daughter having a voice. You’re the one who tells us that you believe what she says. And so here she is, saying, “I’ve done that” – I mean, that’s an incredibly perceptive thing ‑ ‑ ‑?
[Mr Cudden]: Yes. So
Ms Agresta: ‑ ‑ ‑ for a little girl of eight to say?
[Mr Cudden]: So I’ve – yes.
Ms Agresta: She did it to show you that she loves you?
[Mr Cudden]: Yes. So that’s what you’re saying, but that’s not the truth. So that’s not the reality of it. So the reality of it is – is that I don’t agree with that at all.
Ms Agresta: You don’t agree that she said it?
[Mr Cudden]: With what you’re saying. With what you’re saying. With what you’re saying. With what you’re saying regarding trying to – with all due respect, trying to twist it around. It’s not working. So ‑ ‑ ‑
Ms Agresta:Well, what have I twisted around? I’m just saying that’s the evidence that your?
[Mr Cudden]: I’m – I – I’m not – like, I’m not – like, with all due respect, as I said, like, I’m not going to be entrapped.
As a result of being sent these videos, DFFH contacted X’s school and attempted to contact both Ms Heyworth and Mr Cudden without success. Following an interview with X at her school, DFFH noted that X was well groomed and appeared weary of child protection workers. She did not say anything negative about Mr Cudden and spoke very highly of him. When asked about Ms Heyworth and Ms B Heyworth she said she was somewhat fearful of them, but she could not explain why, and then said that they would yell at her when she does something wrong. X indicated that her preference was to remain living with Mr Cudden and seeing Ms B Heyworth only when she wanted. It was noted in the report that X appeared to have a substantial amount of knowledge of the ongoing family law proceedings and further disclosed to DFFH about Mr Cudden taking videos of her to show her psychologist. The child protection workers had concerns that X was repeating phrases that she had heard from Mr Cudden as the language she was using was incongruous for her age.
The DFFH also spoke to Mr H on 6 September 2022 and recorded that Mr H’s view was that X was trying to resolve the conflict between Mr Cudden and Ms B Heyworth and that she has reported to him that she tries to resolve things herself. He thought the videos were of concern.
DFFH visited X at school again on 15 September 2022 and she reported that her time with Ms Heyworth, Ms B Heyworth and C was going well and that she felt happy and did not have any worries and importantly did not feel unsafe in either Mr Cudden or Ms B Heyworth’s care. DFFH noted that X appeared more confident and was speaking in a manner that was more appropriate for her age.
DFFH interviewed X again on 4 October 2022 at school where she again was well groomed and engaged well and talked about feeling happy and excited with Mr Cudden and things being okay with Ms Heyworth and Ms B Heyworth. When she was asked why she felt this way said she did not know but otherwise confirmed feeling safe in all three adults’ care. DFFH acknowledged that their assessment was limited by Mr Cudden’s non-engagement. They expressed concerns about his capacity to prioritise X’s emotional needs, which includes supporting X’s relationships with the maternal family.
MS HEYWORTH
Ms Heyworth claims that Mr Cudden was violent towards her during their relationship which is denied. This was not explored at trial. Quite properly, given the historical nature of those allegations and the current risk concerns. Ms Heyworth somewhat minimises her own drug use. She refers to her and Mr N using ICE together in late 2018 and she becoming very unwell over the subsequent months, resulting in DFFH removing both C and X from her care and placing them with Ms B Heyworth. She says she has since complied with the various DFFH requirements and the children were returned to her in May 2019.
It is not necessary to set out Ms Heyworth’s complaints about the orders for her to complete a hair follicle test, her inability to afford payment for the test and the subsequent arrangements for Mr Cudden to pay for the test and difficulties that arose. Ms Heyworth says that as a result of failing to comply with the hair follicle test, the resulting orders removed X from her care. She contends that this was unfair given much of delay was due to Mr Cudden but the reality is that she did not comply with orders for hair follicle testing and did not attend the court date. She did not appeal those orders with the Court making orders addressing the risk issues as presented on an interim basis.
Ms Heyworth makes various complaints about X’s regression in behaviour whilst in Mr Cudden’s care and other difficulties with respect to the orders and his failure to comply with them.
Ms Heyworth says she and Mr N separated in early January 2020. An instance of violence occurred on 26 June 2020 when she was at home with C. Mr N attended the home by jumping the back fence into her backyard without her consent. When she saw him outside she locked the door and says he left after she threatened to call the police. He returned about a half-hour later kicking in her back door and physically assaulted her. She managed to get away and asked a neighbour to call police. Police arrived a short time later and arrested Mr N. As her home was no longer secure she temporarily stayed with Ms B Heyworth until the P domestic violence support service assisted her secure another property with an address not known to Mr N.
She says that she and Ms B Heyworth had an argument in July 2020 and there was a strain on them living together when Ms B Heyworth saw messages on her phone relating to illicit substances. This is the incident where Ms B Heyworth contacted Mr Cudden to collect X early. Ms Heyworth says that as a result of this incident, DFFH initiated Children’s Court proceedings and C was placed with Ms B Heyworth on an interim accommodation order.
Ms Heyworth denies Mr Cudden’s allegations of abuse and denies denigrating Mr Cudden and his family in front of the children.
She maintained that she and Ms B Heyworth never spoke negatively about Mr Cudden and Ms M and that X feels free to talk about things that she does with the paternal family and talks about going to the park and going on bike rides and on one occasion going on a train ride. She says X talks about the Wednesday nights when she goes out to dinner with Mr Cudden and that she loves him and that these are positive aspects of their relationship.
Ms Heyworth’s failure to address risk concerns
Ms Heyworth concedes that she still has a number of frailties and is not in a position to seek that X and C live with her at this time but hopes to be able to in the future.
In the family report of Ms L dated 13 October 2020, Ms L wrote that Ms Heyworth needed to seek long-term counselling and medical treatment in order to come to understand the immediate and also long-term physical, emotional and mental harm caused to children exposed to family violence. These harms include behavioural issues, impaired emotional regulation, trouble sleeping and eating, intense worries, to developmental regression, night terrors and clingy behaviour.
In her report, Ms L stated she initially had difficulty contacting Ms Heyworth. She said at interview she presented as a sad and grieving mother. Ms Heyworth spoke about her mental health difficulties and being introduced to Mr N, and claimed she only used drugs for a short period. She was unable to provide further details of when and how long she was using drugs. Ms L had the impressions she was minimising and denying much of the family violence between herself and Mr N.
Ms Heyworth states frankly in her affidavit that she has struggled to implement all of the recommendations made by Ms L in the family report released on 13 October 2020.
She seeks for the parties to have equal shared parental responsibility, X to live with Ms B Heyworth and to spend time with her as agreed between herself and Ms B Heyworth, and for X to spend each alternate weekend with Mr Cudden from the conclusion of school Friday until 5pm Sunday after a period of supervised time at a contact centre.
The solicitor advocate for Mr Cudden asked Ms Heyworth if she had ever reached out to Mr Cudden if C could come over for a play date with X on the weekend. Ms Heyworth stated that she had not because she knew that there would be no answer from Mr Cudden. Based on the evidence of Mr Cudden’s conduct it is a reasonable response, particularly given the concerning nature of oral evidence of Mr Cudden and Ms M. It is not a realistic prospect for there to be play dates at Mr Cudden’s home.
She further acknowledged that she has not engaged with a psychiatrist or clinical psychologist since having her initial appointment. She said that her next appointment was with Dr Q on a date that clashed with the court date in 2021 and as a result had to reschedule her appointment but did not follow this up for a few months. As a result of the delay she was advised she would need a new referral and is currently on a waiting list. Ms Heyworth conceded that she has not pursued every avenue to address the risk issues as much as she could have and said that things have been overwhelming for her mentally. It is to her credit that she readily conceded this when asked.
Ms Heyworth was also cross-examined about Mr R who was another violent individual she was in a relationship with for a short time. She was asked if it was possible that she has not dealt with the underlying issues that has led her to be in violent relationships. She said that she thought she had but found that the people she met at first were lovely and charming but instead were manipulative.
Ms Heyworth minimised her own conduct and risk issues during cross-examination. She still maintained that she had not done anything wrong when Ms B Heyworth found texts regarding the purchase of drugs and after she was reported to DFFH and Mr Cudden.
Ms Heyworth cutting X’s hair
There was an incident where Ms Heyworth cut X’s hair which X then complained about to Mr Cudden, where it was claimed that Ms Heyworth had come up behind X with scissors. Ms Heyworth said that she would never would have approached X with scissors without having discussed cutting her hair. Ms Heyworth said she had a conversation with X about her hair as her hair was very dry and stringy, particularly at the ends. X also mentioned that Mr Cudden does not use conditioner on her hair. Ms Heyworth compared X’s hair to C saying that C has long and healthy hair and X mentioned wanting hair like C. Ms Heyworth said she told X that because C was with her regularly she was able to have her hair trimmed in order to avoid split ends and that it is necessary to trim hair from time to time for it to grow long and healthy. As a result of this conversation, X happily agreed to have her hair cut. Ms Heyworth says they told X to make sure that when she returned home to Mr Cudden to tell him that she wanted her hair cut and that the maternal family did not force her.
Ms Heyworth shows a lack of insight in this regard as what she was asking X to do was to put her front and centre of the dispute between the parents. Ms Heyworth said that if X had not wanted to have her hair cut they would have left it. The responsibility of this however should not have been put on an eight year old, particularly given the long-standing conflict amongst the parties. It would have been better to have informed Mr Cudden first prior to taking action. I asked Ms Heyworth if she had considered that given Mr Cudden felt strongly about haircuts and that he would be upset, whether or not she considered either not cutting X’s hair without asking him first or telling him that they were planning to do so. Instead, she had put X in the middle of the dispute and that her message to X was that she thought X would get in trouble with Mr Cudden about having her hair cut. This is one of the very real difficulties for X. X is so aware of the conflict amongst the adults and that both households believe the other has some malintent that she is unable to speak freely and tell everyone what she really thinks. Unlike Mr Cudden and Ms M, Ms Heyworth was able to reflect on her behaviour and what she had done in this regard as properly wrong. I accept it was not her intention to put X in the middle of the dispute.
When Mr H was asked how he could maintain that the current situation is not psychologically damaging for X presently and for her long-term well-being from learning these behaviours, Mr H said that X knows the reality Mr Cudden loves her, Ms B Heyworth loves her, and knows that Mr Cudden does not like the maternal family. As a result X has to maintain a role, which for her is purely a role she plays, and he further says that he hopes that this will not become her reality and that he spends a lot of time talking to her about that.
When counsel for Ms Heyworth put to Mr H that the Court described the videos of X as being emotionally abusive, Mr H agreed and that he did not contact the authorities about them as he was of the view that X was displaying a role.
Mr H said that he did not think that X would cope with a change in residence as she would miss Mr Cudden and would want to know why she could not see him. He acknowledged however that X would cope with a change in residence over a period of time. He then said that “she would cope better, to be honest with you, if she was just at one household, the reality is there are two and there is conflict between the two.” Mr H acknowledged that C is also important as she is someone else X can talk to and to learn about sibling rivalry and that she cannot always get her own way.
Mr H conceded that it is unfortunate that X has to some extent live a lie, but said that as long as she is able to talk to somebody outside of the family like him, eventually when she is old enough and assertive enough she will tell Mr Cudden that she gets on well with her maternal family and that she wants him to move on. This proposition is highly problematic as I have no confidence that Mr Cudden will in fact hear X, and indeed he is convinced that when she is older she will be able to verbalise and describe the abuse that he is utterly convinced she is suffering at Ms B Heyworth’s home. I have real concerns that X will continue to be under pressure from Mr Cudden and Ms M until they get what they want.
Counsel for Ms Heyworth put to Mr H that X has had to go so far as to try and come up with a solution to suggest to Mr K that her time be reduced with Ms B Heyworth to one night a fortnight, far from being able to stand up to Mr Cudden and that this is X trying to meet Mr Cudden’s needs. Mr H agreed, but maintained that X would be extremely distressed if removed from Mr Cudden’s care. X’s suggestion of less time with Ms B Heyworth and her role-playing in the videos is a way of appeasing Mr Cudden and to ensure that he keeps loving her and that she does not see that as a burden.
When asked by Ms Heyworth’s counsel how this situation could be psychologically safe for X having to compartmentalise what happens in the households and keep her two worlds separate, Mr H replied that most children have to live between parents with conflict and they are able to do that and survive. This greatly minimises the situation that X is in as again this goes well beyond the high conflict matter as Mr Cudden is fixated in his belief that Ms B Heyworth is abusing X. Mr H accepted that it can reach a point where it is no longer tolerable for the child to remain in the middle and they will need to pick a side in order to cope and accepted that this can happen to X. Mr H was confident that this would not happen whilst he remained involved with X.
Mr H insisted that it is currently not psychologically damaging for X and that he would know if it was. He says that his role as her therapist is to make sure that she keeps in touch with reality and that she refers to it as playing her little game, even when it was put to him that Mr Cudden’s evidence over a long period of cross-examination was extreme enough for him to tell Ms B Heyworth that she does not love X and that he will expose her as an abuser. Mr H did not grapple with this and repeated that X is in touch with her reality and that he is not sure how long that would last if she does not continue to see somebody independent.
It is clear on the evidence that X having a reduction in time with the maternal family is not going to make Mr Cudden happy and more accepting of X spending time with the maternal family.
Mr H acknowledged that the Court is in a difficult position and that the situation is frustrating, but that he thought Mr Cudden should get some sort support and see a psychologist who could confront him about his beliefs. I have some real doubts about Mr Cudden’s willingness to engage in that.
Ms Heyworth’s counsel put squarely to Mr H that Mr Cudden and Ms M will never change from their fixed negative views that X is being subjected to profound abuse in Ms B Heyworth’s home, that Mr Cudden is the only one who can protect her, and that Mr Cudden will withhold X from the maternal family for several weeks at a time based on previous experience. Mr H said he was aware of this occurring and that he had read the reports but said at that time there was no psychologist involved as far as he was aware.
The following exchange took place between counsel for Ms Heyworth and Mr H:
Ms Agresta:I mean, no disrespect to you, because you’re obviously providing her a lot of support, but can I suggest to you that if what you’re saying to the court is that this situation that we have here is really psychologically dysfunctional and harmful to this child and she needs to keep seeing you to keep her sort of afloat, that’s really ‑ ‑ ‑?
[Mr H]:Yes.
Ms Agresta:‑ ‑ ‑ not good enough, is it? I mean, doesn’t this child need to be placed in the household that is less deluded and less negative and less – and more fixed in, like, reality for this child?
[Mr H]:Well, yes, maybe, but the thing is if the – if [X] keeps seeing me or someone like me, that’s fine ..... who understands the conflict between the two sides. Because if she sees mum – on the maternal – say, for example, she – she wasn’t to see the father’s side at all, then – then the conflict would be extreme, and if – and if, say, dad was to see her every second weekend like it is now with the mother, then the mother might withhold – sorry, the maternal side might withhold as well, and I mean ‑ ‑ ‑
I interjected at that point and made it clear that there is no evidence to suggest any concern about Ms B Heyworth withholding X from Mr Cudden and that to the contrary, what Mr Cudden continues to fail to understand is that Ms B Heyworth intervened in these proceedings somewhat reluctantly and at the urging of the Court. When I put to Mr H that this matter is not just conflict, but abuse, Mr H accepted my proposition.
Mr H confirmed that he has read the various emails that Mr Cudden and Ms M sent him and he said that the emails worried him from the point of view of that being the reality of what X lives with in his household with their extreme views about Ms B Heyworth being abusive. Mr H said that is why X role-plays because she is aware of the realities.
Mr H said that he did not have the sense from speaking with Ms B Heyworth that she had the same level of criticism about Mr Cudden. Mr H said he had the sense that Ms B Heyworth was critical of Ms Heyworth, but that is a different situation. Mr H did agree that the fact that Ms B Heyworth was able to see past how Mr Cudden described her in terrible terms and the fact she continues to say to the Court that she knows that X loves Mr Cudden and needs to have him in her life suggests that Ms B Heyworth has a strong child focus and is emotionally attuned to X’s needs. Mr H then conceded that Mr Cudden’s inability together with Ms M to say anything positive coming out of X’s relationship with her maternal family shows a complete lack of understanding of X’s emotional needs. However, he stated very strongly that whilst he remains involved with the family, X will not be cut off from her maternal family.
X’S CURRENT WELLBEING
X was subjected to abuse in Ms Heyworth’s household due to Ms Heyworth’s and Mr N’s drug use, and Mr N’s violence. X is not a lesser or secondary victim of that because the violence was not directed at her. The risks were sufficient to cause DFFH to remove X and C from Ms Heyworth’s care. This sudden move would have been traumatic and confusing for them although necessary for their safety.
In his trial affidavit Mr Cudden says that X is progressing well in Year 1 at S School. He says X is does well and all her reports are positive but he does not annex any reports from her school.
A subpoena was issued to S School on 29 August 2022. Despite this, no material regarding X’s progress with respect to schooling was tendered during the course of the trial. After X came into Mr Cudden’s care there were concerns that he was not facilitating X’s school attendance consistently. I accept that for the first few months X’s school was a considerable distance from his home and that X had experienced considerable trauma.
In its report dated 6 October 2022, DFFH referred to its contact with S School noting that the school did not have any significant concerns for X, stating that she presented as happy and her attendance was good. Despite X being behind in her learning, she had assistance in class to help her. Ms B Heyworth said that the school had asked her to assist with X’s homework but Mr Cudden was obstructive. Significantly, Ms Heyworth’s solicitor issued a subpoena in August 2022. Nothing was tendered from the school.
Risk of harm – Mr K
When cross-examined by Ms Heyworth’s counsel, Mr K agreed that there was no risk of physical harm in either household. The issue is one of emotional harm. Ms Agresta summed up the Court’s dilemma as follows:
Ms Agresta:Of course, her Honour has to look at that because that’s one of the issues here, and in those sorts of cases then it’s trite, but I mean I will say it anyway, isn’t it true to say that what we’re confronted with is a weighing up of, on the one hand leaving [X] where she is and not causing her disruption into the short and medium term. Allowing her to stay with the father, who, otherwise, in many respects in her life, manages her very well and is meeting most of her needs. Where she’s at school where she’s settled enough, where she has a routine and a community. So, you know, to leave her with her father gives her that stability and that security and that – and allows her to live her life as she has for the last couple of years, but exposes her to a risk long-term of adverse emotional consequences from being exposed to the emotional harms that you describe in your report, yes?
[Mr K]:Well, yes, that happens when she goes to the maternal household. That’s the dilemma that her Honour has to deal with
Mr K said he understood that Mr Cudden and Ms M perceive it as having to send X to a household where she is being horrifically abused by the maternal family because the Court tells them they must. She referred to Mr Cudden’s evidence given over many hours where he was saying that Ms B Heyworth is abusing X and that he is concerned that he is enabling X’s abuser by sending her there. Mr K replied that Mr Cudden was shooting himself in the foot and making it worse for himself by doing that, because if he continues on that path, he will lose his relationship with his daughter.
Mr K agreed that the case is beyond one of high conflict given Mr Cudden’s fixed belief that Ms B Heyworth is abusing X and his delusional behaviour, it is clear that this came as somewhat of a surprise to Mr K. He also agreed that whilst one option is to leave X where she is because she is coping at the moment, but that there are long-term consequences for her as she grows up where she has to deny her reality and play along with the idea that Ms B Heyworth is an abusive person when that is not her lived experience. Mr K said he was not sure if X has to play along anywhere else, such as at school. There is an absence of evidence from the school as to how X is faring. This is significant both because of the controversy amongst the parties as to how X is doing at school. X was significantly behind her peers having had to repeat Prep. This in part at least could be because of the trauma and upheaval. There is no evidence from the school not only as to how X has settled at school and how she is progressing at school academically but also how she is doing socially and whether or not there have been any ongoing concerns about X’s emotional and behavioural development.
Mr K also acknowledged that both outcomes have dangers and that what the Court is looking at is not what is in X's best interests, but what will be doing the least harm. It is balancing the short term harm to X in removing her from Mr Cudden, her school and her community, but leaving her where there are real long term consequences. Mr K agreed with those propositions and said that after talking to X who is trying to come up with a plan that would work where Mr Cudden was cooperative, but it was clear that he is not cooperative. It was made clear to Mr K that Mr Cudden went further and that his evidence is very clear that he understands that the Court expects him to ensure X spends time with the maternal family, but he feels that the system has let X down and has failed to protect X, that DFFH has failed to protect X and that the ICL has failed to protect X and the long-term harm is X growing up in a household in which he believes that she is being abused.
It was put to Mr K that even when the Court has said to Mr Cudden that the videos were abusive, Mr Cudden and Ms M cannot see that and say those videos are a result of them having to take action because no one is listening to them. Mr K said they said the same thing to him and the difficulty is that the situation is only going to escalate because there was no indication from either of them that their views had been moderated in the slightest by the evidence that they have been confronted with. Mr K said it is a real dilemma because there is going to be detrimental impact on X in either case. Mr K described the videos as being highly abusive and showing X as being emotionally and psychologically manipulated by Mr Cudden and Ms M.
Mr K also agreed that one of the videos was taken on the day that he interviewed X and that X was not distressed at all, but was aware that she has to put on a performance for Mr Cudden. Mr Cudden thought that filming X would assist his case. But what it has done is shown the damage and emotional harm that he is causing X. Mr K said that it is the heightened nature of it and the extent to which X has to put on a performance is of concern because children have to compartmentalise moving between households. Mr K thought that X was capable of making a stand to Mr Cudden and has shown this by trying to come up with a solution. But the question that follows this is at what price?
Risk of harm - Mr H
When cross-examined by Mr Cudden’s advocate, Mr H said that the risk of harm to X has not gotten out of hand and that he would need to see other clinical indicators such as X not performing at school or showing other unusual behaviours at home or disrupted sleep patterns in order for there to be some further concern. Mr H said that although X is aware of the conflict between the two sides, she is not aware of Mr Cudden’s belief that she is being abused in the maternal household, and that if X got to the point where she had to start internalising Mr Cudden’s fixed beliefs that this would elevate his concerns. He then said that he would increase the frequency of his home visits and if necessary would bring in other professionals such as psychiatric assistance. When I pointed out that this assumes that someone was going to be willing and able to continue to pay his fees given that currently Mr Cudden pays his fees, he said he would be willing to continue to see X and help her regardless of whether his fees were being paid or not. In this regard, Mr H is either overconfident or naïve, and it is a very poor state of affairs where the Court is being left with, in essence, having to rely on the goodwill of a psychologist in order to maintain the current arrangements.
The ICL’s counsel asked one final question of Mr H which was the hypothetical situation of what would happen to children caught in the middle of high conflict having to do the role playing they do to survive. Mr H said that they “get pretty messed up and end up on drugs or something else”.
FINAL ORDERS SOUGHT
At the end of the trial the ICL’s counsel submitted that, despite very troubling evidence from Mr Cudden and the concerns about emotional harm and long term risks, it would be premature to change X’s residence now. This submission was made in the context of the upheaval and trauma she has experienced. Counsel for the ICL proposed for X to live with Mr Cudden and spend time with Ms Heyworth and Ms B Heyworth each alternate weekend during school terms from the conclusion of school on Friday until 5pm on Sunday. The ICL further sought an order enabling the matter to be listed urgently before me, if at all possible, and without any need to seek a section 60I certificate or exemption over the next three years because of my intimate knowledge of the case and the real likelihood that there will be either a further parenting application and/or contravention applications. Counsel for Ms Heyworth supported such an order in the event I do not reverse X’s living arrangements, given the high likelihood of such an application being made.
Whilst the ICL sought a final order that the parties complete such courses in the event X remained with the applicant father, I see little point in making a further order requiring the parents to do these courses as they have been previously ordered to do so. It is more important that they each receive the individual specialised support that has been recommended for Ms Heyworth and Mr Cudden.
The ICL’s minute provides for Ms Heyworth and Ms B Heyworth’s time jointly in the same order. However this overlooks the fact that there are outstanding risk issues with respect to Ms Heyworth. Ms B Heyworth supervises her time with both X and C. This is acknowledged in the other parties’ minutes.
It is important that Ms B Heyworth spends time with X regardless of whether or not Ms Heyworth does.
Ms Heyworth acknowledges that changing X’s primary residence will result in another change to X’s schooling, peer groups and local connections, but firmly believes that it is the only way that X will be able to maintain a relationship with both the maternal and paternal family, and to reduce the likelihood of Mr Cudden further psychologically abusing X.
When Ms Heyworth was cross-examined by the ICL’s counsel as to what she would do to make a change of residence work, she said that she would be there for X as much as she could to help her with the transition and to be there to comfort her. She referred to being at the house as much as she could and distracting X giving her fun activities to do. It was clear from Ms Heyworth’s answers that whilst she is certainly sincere, she had not put much thought into the practical challenges. Ms Heyworth lacks some insight when she says that she could look after X on the days Ms B Heyworth is working if X were to live her.
Ms B Heyworth seeks sole parental responsibility and for X to live with her and to initially spend supervised time with Mr Cudden before progressing to each alternate weekend from 10am Saturday to 5pm Sunday. She also proposes that X attend T School, which is five minutes from her home. It is where X’s cousins U and V attend and where C will be commencing school in 2023.
Ms B Heyworth submitted that after hearing the evidence which was quite disturbing, she believes that X should live in her primary care so that she can simply be a child and not feel like she has to change or perform to prove her love. She acknowledged that X loves Mr Cudden and that he loves her and that this change will have a big impact on her, but believes that X would adjust over time with love and support.
Ms B Heyworth also shared the view of Ms Heyworth’s counsel that Mr Cudden and Ms M’s time would need to be supervised initially so that X has time to adapt to new living arrangements without Mr Cudden and Ms M negatively influencing her. Ms Heyworth’s proposed orders provide for there to be a further report after a period of time after supervised time with Mr Cudden has been able to progress. Such orders are fraught with difficulty and she acknowledged that another option would be for the Court to make final orders with respect to parental responsibility and residence, but interim orders with respect to Mr Cudden’s time. Of course, she would also be open to the Court to make interim orders and not final orders at all, although acknowledging that that is not anyone’s preferred position.
Given all of the withholdings and the filming of X as well as non-communication, Ms B Heyworth does believe that if X comes into her care that Mr Cudden’s time should be supervised for the first six months in order to give X a chance of settling without Mr Cudden vilifying her and undermining the change of residence.
Ms B Heyworth said she does not know how to make things any easier for X to navigate the conflict between the houses and that she can only say that she would do the right thing in order for things to run smoothly. She said she would be happy for Mr H to remain involved in supporting X.
She acknowledged X may be devastated being placed in her care. She said she would assure X that she will still see the paternal family and referred to the devastation X felt when she was removed from Ms Heyworth’s care but in time was able to adjust. Ms B Heyworth believes that X would adjust again and maintains she is better placed to ensure X is able to maintain relationships with both sides of her family.
At the end of the trial, the solicitor advocate for Mr Cudden submitted that what was most apparent over the course of the three days of evidence was the evidence of the paternal family which shows they have entrenched erroneous beliefs against the maternal family, and that they have maintained that X has been abused and is at risk of abuse in the maternal household, despite the evidence of Mr H and Mr K and the assessment of DFFH. He noted that despite the evidence that X is physically and psychologically safe in both households (as stated by the experts) that Mr Cudden would be willing to engage in therapeutic supports as recommended by Mr H and went on to submit that, apart from the lack of insight into X’s emotional world and the harm caused to her after changeovers, with X performing for him and Ms M, that there are otherwise many positive aspects of his care of X and that he is otherwise meeting her physical educational and social needs.
He further submitted that Ms Heyworth still has a way to climb in her recovery before she is in a position to seek to care for X and C, and considering the latest information from DFFH that they are now considering placing X in Ms B Heyworth’s care long term. He submitted that if there would be a change of residence, the Court could have little certainty that the same cycle of violence and abuse would not occur when Mr N was involved. This however would only be the case if the Court was considering placing X in Ms Heyworth’s care. It was submitted that the least adverse outcome for X particularly in the short term would be for X to remain living with Mr Cudden and to spend time with Ms B Heyworth two nights a fortnight and half school holidays, which will also enable her to maintain a relationship with her sister C. He also supported the orders sought by the ICL listing the matter urgently before me possible.
All counsel also acknowledged the frustrations of the Court with respect to DFFH and its position of not intervening as this is a case that will need ongoing supervision and the parties will need ongoing supports.
All parties seek orders 23 and 24 at the beginning of these reasons. These appeared in earlier orders. They were not raised during the trial and appear historical but I include them as all parties seek them.
Submissions with respect to parental responsibility
At the commencement of the trial, Mr Cudden sought that he exercise sole parental responsibility. However by the end of the trial, he conceded that parental responsibility should be equally shared between himself, Ms Heyworth and Ms B Heyworth.
Counsel for Ms Heyworth submitted that if X were to live with Ms B Heyworth, it is difficult to see how an order for equal shared parental responsibility would work given Mr Cudden’s attitude towards Ms B Heyworth. Ms Heyworth’s counsel submitted that Mr Cudden be kept informed, but could not be involved in the decision-making. Conversely, if X remains in Mr Cudden’s primary care, then it is important that equal shared parental responsibility is shared between Mr Cudden, Ms Heyworth and Ms B Heyworth. Given the lack of communication and lack of trust that will be difficult, but I accept that this arrangement will be important as if Mr Cudden were to have sole parental responsibility, it would make it easier for him to exclude the maternal family.
The ICL submitted in her case outline that either the parties or the parents should exercise equal shared parental responsibility. In the proposed minute handed up at the end of the trial, the ICL sought that Mr Cudden, Ms Heyworth, and Ms B Heyworth jointly exercise equal shared parental responsibility. This was not the subject of submissions at the end of the trial. This is one of the matters the parties were given the opportunity to make further submissions on. None did so with respect to this issue. I find that it is in the best interests for Ms B Heyworth to be included in the orders for the parties to exercise equal shared parental responsibility. This acknowledges the importance of her protective role.
SHOULD THE APPOINTMENT OF THE ICL BE EXTENDED?
I raised with the ICL’s counsel the consideration of whether or not the ICL should remain appointed in this case for a period of time after final orders are made. Counsel for the ICL quite properly pointed out that ICL’s are under enormous pressure, and one concern would be the ICL being bombarded by emails from the parties once final orders have been made effectively seeking that they act as referee. That is a very real concern for the ICL given that this is exactly what they happened during these proceedings when Mr Cudden refused to comply with orders which resulted in the arrangement of the matter being urgently relisted. My thoughts to extend the appointment will be with respect to any urgent application bringing the matter back before the court. If such an application is made, then I will make an urgent order seeking the reappointment of the ICL. I will order that the ICL’s appointment be discharged in 30 days, which is the expiry of the time limit to bring an appeal.
LEGAL PRINCIPLES
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The Court must regard the best interests of the child as the paramount consideration. What it means in individual cases is informed by a number of statutory provisions.
In deciding whether to make a particular parenting order, I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), which lists 13 additional considerations. The first primary consideration is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests. The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405. However, greater weight must be placed on protecting the child from physical and psychological harm, neglect and family violence.
Recently the Full Court of the Family Court discussed the assessment the Court must make when considering whether or not there is an unacceptable risk in Isles & Nelissen [2022] FedCFam1A 97. The Full Court clearly stated that the assessment of risk is an entirely separate task to making findings of fact. The Court must make findings of fact based on the balance of probabilities. A risk assessment is a predictive exercise. The risk may be a possibility, probability, or a certainty.
CONCLUSION
This is a vexing and difficult case. There is no positive outcome and the outlook for X’s long term wellbeing is somewhat bleak unless the parties, particularly Mr Cudden and his mother Ms M, can effect real change.
I have concluded that particularly because of the gaps in the evidence and absence of scaffolding supports currently in place, it is not in X’s best interests to change her residence at this time. It is important to note that when the family reports were prepared Ms B Heyworth was not seeking primary residence. It was only when she filed a Response to Final Orders on 12 September 2022 that her position became clear. There is also an absence of recent material from the school to indicate X struggling in other areas. Furthermore, whilst Ms B Heyworth and Ms Heyworth state that Mr Cudden’s time would have be supervised for a period of time, there is no evidence as to what supervised services could be engaged, what the costs would be, any delay in the services being engaged and how Mr Cudden’s time would be progressed.
I acknowledge that it will be very difficult for the parties to exercise equal shared parental responsibility, which requires them to consult and agree on major long term decisions for X but it is important the maternal family is not excluded from important decision making and will give Mr Cudden an opportunity to show he can communicate and work with the maternal family for X’s sake.
I am mindful that this outcome is likely to lead to further proceedings. I am also pessimistic about Mr Cudden seeking assistance. Again there is a lack of information about an appropriate therapist for Mr Cudden to see. It would be important that it be someone who would challenge his beliefs. Mr H may be able to recommend someone. Unless Mr Cudden is truly willing to engage, it is unlikely to work.
Despite my concerns about the parties lack of communication and distrust towards each other, I conclude that Mr Cudden, Ms Heyworth and Ms B Heyworth share parental responsibility for X.
Counsel for the ICL submitted that no one disputes that X is doing well at school and participating in sports. It is one of the barometers of her emotional wellbeing. Whilst Ms Heyworth’s counsel submitted that the only evidence X is doing well at school is from Mr Cudden, this is not true. However, she did not refer to the subpoena her instructor issued in August 2022. No one referred to it at trial.
I have real concerns about further breaches of the orders. If Mr Cudden is unwilling or unable to facilitate the relationship with the maternal family, then it is likely that X will have to move to Ms B Heyworth’s primary care.
Both Mr K and Mr H say X will be traumatised if she is removed from her father’s care. She would adjust over time as she has before but at what cost? Despite the role plays she has to engage in she perceives her father as safe and protective of her. This is not so surprising given the environment she had been living in. She does not see her mother as a safe person. She does see Ms B Heyworth as a safe person. The fact that X feels compelled to put on performances for her father to show him that she loves him is indicative of an insecure attachment to him and is suggestive of X perceiving her father’s love as conditional. This is not healthy for her in the long term. If matters continue on their current trajectory it is likely that the current arrangements will have to change.
I am not satisfied that Ms B Heyworth poses any real risk to X. To the contrary, she has acted protectively in difficult circumstance and has prioritised X and C’s safety over her relationship with her daughter.
The allegations Mr Cudden and Ms M made against Ms B Heyworth are serious and completely unfounded. Their evidence was troubling to hear and raises real concerns about Mr Cudden’s ability to facilitate X’s relationships with the maternal family. It also raises concerns about Mr Cudden’s capacity to provide for X’s emotional and psychological needs.
Furthermore, the evidence has established that Mr Cudden and Ms M have subjected X to emotional abuse. Unless they can address their false beliefs, it is likely that incidents such as the videorecording will occur again. The risks of emotional abuse occurring again are long term risks which will increase as X gets older. If Mr Cudden remains fixed in his views, it is likely that he will press X to disclose abuse perpetrated by Ms Heyworth and Ms B Heyworth as he remains convinced that X is not old enough to be able to verbalise this. The evidence from the experts is clear. X loves both her paternal and maternal family and feels safe with both. What complicates this case even further is the trauma X experienced living with Ms Heyworth. That type of trauma can have lasting impacts. It would have contributed to her educational delay. It is well established that X has tantrums and meltdowns. It is also clear that X feels the need to put on performances for Mr Cudden to show him how much she loves him. X does not have to perform for Ms B Heyworth.
X’s views are clear. She wants to live with Mr Cudden. She wants to see her maternal family. Ms B Heyworth and C are important people in her life. X is acutely aware of the conflict between the parties. More than that, she is aware that Mr Cudden and Ms M believe she is being abused by Ms B Heyworth and she has to support that narrative. Despite this, currently she is aware that this narrative is not true. Although X is young, her views are important and I give them some weight.
Both Ms B Heyworth and Mr Cudden can provide for X’s physical needs. The distance between their homes is such that it is not possible for X to live in a shared care arrangement.
I accept the ICL’s submissions and find on balance that, whilst there are risks of ongoing emotional abuse in Mr Cudden’s home, to move X to Ms B Heyworth’s home now will involve considerable upheaval and trauma to X in the short term. X would have to change schools again.
This is a case where there are likely to be further proceedings. Order 29 anticipates this. The risks in Mr Cudden’s home can be ameliorated by the requirements for Mr Cudden to continue to take X regularly to Mr H at his expense. If he stops doing this, this will be cause for the matter to be urgently relisted before me. This is a case where if there was evidence before me of an appropriate professional to assist Mr Cudden and challenge his false beliefs about Ms B Heyworth it would be appropriate to require him to see that person as a condition that X remain living in his primary care. The absence of evidence prevents this, but Mr Cudden is urged to seek that assistance.
I certify that the preceding two hundred and seventy-seven (277) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Associate:
Dated: 19 January 2023