Cudden & Heyworth (No 2)
[2024] FedCFamC2F 1049
•22 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cudden & Heyworth (No 2) [2024] FedCFamC2F 1049
File number(s): MLC 11650 of 2019 Judgment of: JUDGE HARLAND Date of judgment: 22 July 2024 Catchwords: FAMILY LAW – ex-tempore - final parenting orders made January 2023 – father has not complied with orders to facilitate the child spending time with the mother and maternal grandmother –where the father was on notice from the previous proceedings about his ability to facilitate a relationship between the child and the maternal family - significant concerns regarding the father’s ability to facilitate a relationship between the child and the mother and maternal family – concerns regarding the father’s ability to support the emotional and psychological wellbeing of the child – the father keeping the child from attending school - child impact report released – interim change of residence ordered – interim change of parental decision making to the maternal grandmother Legislation: Family Law Act 1975 (Cth) Cases cited: Cudden & Heyworth [2023] FedCFamC2F 36 Division: Division 2 Family Law Number of paragraphs: 17 Date of hearing: 22 July 2024 Place: Melbourne Counsel for the Applicant Ms Agresta Solicitors for the Applicant Leslie Family Law First Respondent Appearing on their own behalf Second Respondent Appearing on their own behalf Counsel for the Independent Children’s Lawyer Mr Allen Solicitors for the Independent Children’s Lawyer Victoria Legal Aid ORDERS
MLC 11650 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HEYWORTH
Applicant
AND:
MR CUDDEN
First Respondent
MS B HEYWORTH
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
22 JULY 2024
THE COURT ORDERS THAT:
1.The father, his servants and agents, forthwith leave the Court and environment of the Federal Circuit and Family Court of Australia and the vicinity of 305 William Street, Melbourne, VIC 3000 and do not now enter further within 500 metres of 305 William Street, Melbourne, VIC 3000.
THE COURT DIRECTS THAT:
2.The maternal grandmother, Ms B Heyworth attend upon Court Child Services this day and collect X born in 2014 (“X”).
3.The Independent Children’s Lawyer meet with the child this morning and explain the Orders made today.
THE COURT FURTHER ORDERS THAT:
4.Orders 2 and 3 of the Final Orders made 19 January 2023 are suspended.
5.Pending further order, the child live with the maternal grandmother.
6.The maternal grandmother, Ms B Heyworth, have sole parental responsibility for the child and sole decision making authority in respect of all decisions concerning major long term issues.
7.The child is to attend T School.
8.The maternal grandmother is authorised to enrol the child into T School.
9.The father, his servants and agents, be restrained by injunction from contacting the child and attending the residence of the maternal grandmother or the child’s school.
10.The Independent Children’s Lawyer have leave to provide Mr H copies of:
(a)Previous documents filed in these proceedings as outlined in Order 21 of the Final Orders made 19 January 2023;
(b)The Mother’s Application for Final Orders filed 14 March 2024;
(c)Affidavits of the parties filed in these proceedings;
(d)A Copy of the Child Impact Report dated 8 July 2024;
(e)A copy of previous Reasons in the matter;
(f)A copy of these Orders;
(g)A copy of the Reasons accompanying these Orders.
11.The matter be adjourned to 2 September 2024 at 9.00am for an Interim Defended Hearing.
AND THE COURT NOTES THAT:
A.The Child Impact Report was released to all parties today.
B.T School have advised they have a place for X to attend the school.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
JUDGE HARLAND
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
These Reasons are to be considered with the final judgment that I gave last year in Cudden & Heyworth [2023] FedCFamC2F 36. I will not repeat that lengthy judgment but note that I indicated in my previous Reasons how finely balanced the decision was, where I determined that it was in X's best interest to remain in her father's care. At that time, there were some gaps in the evidence. X had already experienced a lot of upheaval and as Counsel for the Independent Children’s Lawyer (“ICL”) submitted this morning, to his credit, the father stepped in and stepped up at that time when X was at risk in her mother's care.
However, there has also been real concerns about the father's capacity to support X having a relationship with the maternal family, and that concern also extends to the paternal grandmother. Their evidence at the final hearing in that regard was concerning. It is clear that has not changed. My previous Reasons warned the father of the importance of maintaining that relationship, and the fact that the Court might be left with little choice but to change living arrangements if he was not able to do so.
The matter came before me this year because the father, again, withheld X from her maternal grandmother and mother for many weeks. During that time, she missed her little sister’s first birthday, Mother’s Day and other important family events. Even when faced with correspondence from the mother’s solicitors putting him on notice of their intention to file an application to the Court, the father did not make X available to the maternal grandmother and the mother. He did not make X available until the matter was before me on 17 May 2024 for an interim hearing. At that interim hearing, I made orders that X spend every weekend with the maternal grandmother until the matter came back before me and we had the benefit of the Child Impact Report.
It is very troubling that since those Orders were made, X has missed several days of school, only attending on Fridays when she was being picked up by the maternal grandmother. The father says that he did everything he could to get X to go to school. Annexed to the mother's affidavit filed 24 June 2024, is the plan that the school developed for X to get her to re-engage with the school. This highlights the father's inability to provide for X's emotional and psychological well-being and an inability to separate her needs from his own, as it is telling that staying at home was more important than X attending school. The school also noted that they had trouble engaging with the father regarding those issues, which is also a repeat of what has occurred previously in this matter on many occasions.
It is also concerning that X refers to sleeping in the father's bed which is encouraging that further enmeshment by the father and causes X difficulties sleeping by herself. This raises real concerns for her emotional and psychological well-being. The Child Impact Report confirms those risk concerns.
It is clear, that the father maintains a delusional belief about the maternal family and the maternal grandmother in particular. I have had the benefit of making findings after the final hearing last year. It is troubling that, from the current evidence before me, noting that this evidence has not been tested, that X's emotional well-being is deteriorating. It appears clear that she is increasingly feeling the conflict of having to reassure the father and paternal grandmother and to basically keep up the performances that she had to do previously.
I have real concerns about Mr H’s ongoing involvement with X. I had these reservations at the final hearing. His current report shows a lack of understanding of the core issues. The fact that he still maintains that X is physically and psychologically safe with the father simply cannot be supported. He continues to describe this case as a high conflict case, which it is not. It is an unacceptable risk case where it is clear to me that there is no option but to make interim orders placing X in the maternal grandmother's care.
It is clear from the evidence that X has a good rapport with Mr H, and I accept the submissions by Counsel for the ICL that it may be necessary for him to have some involvement with X whilst there are transitions. I will make the order, sought that the ICL to provide Mr H with the documents in these proceedings and the previous proceedings and my Reasons of judgment. However, I have real concerns that it appears he has done little to engage with the concerns that the adults have tried to raise with him. Mr H appears to have a lack of understanding as to the dynamics in this case and the emotional and psychological abuse that X is experiencing in her father's care.
X is taking on a role of looking after her father's emotional and psychological needs. She has to tell the father, as soon as she gets home, various stories about the maternal grandmother denigrating her in order to look after his emotional needs. The fact that, as the father pointed out that X gives this information freely, is all the more concerning as she knows that she has to look after him emotionally.
The fact that the father says that he has done all he can do to get X to school, but has not been able to, is another concern about his ability to provide for X's psychological and emotional welfare and raises concerns about his parenting capacity. It is consistent with observations made about X's position in that household. The mother has addressed many of the risk concerns that were raised with respect to her parenting capacity in the previous proceedings and that is reflected in the fact that the Department of Families, Fairness and Housing after being involved with the mother for quite some time with respect to W (the mother’s other child) have made a family preservation order placing W in the mother's care. W is only a little over a year old.
Despite this, the mother's position at this interim stage is that it is in X's best interest to live with the maternal grandmother. This position shows insight on her part. The benefit of X being in the maternal grandmother’s care will be that X will then be with her younger sister, C, and they will be able to attend the same school.
Both Counsel for the ICL and the mother were very frank in stating that the next period of time is going to be difficult. X is going to have difficulties adjusting to these new arrangements. The Child Impact Report refers to X's enmeshment with the father and her changing developmental needs. X is coming into a time when friendships are going to be deeper and more important, and she is developing more of an individual identity.
I accept that it is appropriate to bring this matter back before me in about six weeks time, to consider further orders to be made in this matter.
I will suspend the orders for X to live with the father. I will make orders restraining the father and his agents from contacting X and from attending the maternal grandmother's home and the school that X will be attending.
Pending further order, I will give the maternal grandmother sole decision making ability, and order that she may forthwith enrol X at T School. It is noted that the school has a place for her and also has supports there, given that she will not be living with either parent. I am of the view that a complete break from communication and time with the father is necessary to enable X to settle into the maternal grandmother's care, which I have no doubt will be traumatic for her in the short term. However, I am satisfied that the maternal grandmother has supports in place, and will gain supports for X.
I will also order that X live with the maternal grandmother, Ms B Heyworth, pending further order. As indicated above, I will make the order sought by the ICL to provide Mr H with various Court documents. I will not make an order about his further involvement in X's counselling at this stage. That is something that can be addressed on the next occasion, because one thing that is clear, is that X is comfortable talking to him. I will direct that the Independent Children's Lawyer meet with X this morning to explain these Interim Orders, noting that X is in the childcare facilities of the Court this morning and professional supports are in place for the transition.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of Judge Harland. Dated: 5 August 2024
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