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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cudden & Heyworth

Details

AGLC: Cudden & Heyworth [2023] FedCFamC2F 36
Case: [2023] FedCFamC2F 36
Decision Date

CaseChat Overview and Summary

The case of Cudden & Heyworth involved a complex dispute over the care of a child, X, between the child's father, Mr Cudden, and the maternal family, including Ms Heyworth, the child's mother, and Ms B Heyworth, the maternal grandmother. The Federal Circuit and Family Court of Australia (Division 2) was tasked with determining the best interests of X and the allocation of parental responsibilities. The court faced the difficult task of balancing the immediate safety of X against the potential long-term emotional harm she might suffer from being placed in a different household. The central issues before the court included whether there were unacceptable risks of abuse in either household, how to mitigate these risks, and the overall welfare of the child in the short and long term. The court found that although there were risks of emotional abuse in Mr Cudden's household, moving X to Ms B Heyworth's household at that time would cause significant upheaval and trauma. The court also found that Mr Cudden and Ms M held fixed, unfounded beliefs about Ms B Heyworth, which were impacting their ability to facilitate a healthy relationship between X and her maternal family. The court ordered that X remain living with Mr Cudden but spend time with Ms B Heyworth and Ms Heyworth under specified conditions to mitigate risks. The court further ordered that Mr Cudden, Ms Heyworth, and Ms B Heyworth share equal parental responsibility for X. The court emphasised the need for Mr Cudden to seek professional help to address his fixed beliefs and the emotional harm he was causing X. The decision highlighted the importance of ongoing supervision and support for the family to ensure X's long-term wellbeing.

Orders