Cudden & Heyworth (No 2)

Case [2024] FedCFamC2F 1049


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…

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AGLC
Cudden & Heyworth (No 2) [2024] FedCFamC2F 1049
Case
[2024] FedCFamC2F 1049
Decision Date

CaseChat Overview and Summary

The case of Cudden & Heyworth (No 2) involved the applicants, Ms Heyworth and Ms B Heyworth, and the first respondent, Mr Cudden. The dispute centred on the father's failure to comply with final parenting orders made in January 2023, which were intended to facilitate the child's time with the mother and maternal grandmother. The proceedings highlighted significant concerns about the father's capacity to foster a relationship between the child and the maternal family, as well as his ability to support the child's emotional and psychological well-being. The father's actions, including preventing the child from attending school, were a central issue in these proceedings. The case came before the Federal Circuit and Family Court of Australia, Division 2, under Judge Harland.

The court was tasked with determining the implications of the father's non-compliance with the existing parenting orders and whether these actions warranted a change in the child's living arrangements and decision-making responsibilities. The court had to weigh the evidence and consider the child's best interests, particularly in light of the child impact report and the father's history of obstructing the child's relationship with the maternal family. The court also had to consider the interim change of residence and parental decision-making proposed by the applicants, as well as the potential impact on the child's schooling and emotional well-being.

In its judgment, the court found that the father's actions had created a significant risk to the child's emotional and psychological well-being. The court was persuaded by the evidence that the father's inability to facilitate a relationship with the maternal family and his failure to support the child's attendance at school were detrimental to the child's welfare. Consequently, the court suspended certain provisions of the final parenting orders made in January 2023 and ordered an interim change of residence and decision-making authority. The court directed that the child live with the maternal grandmother, who was granted sole parental responsibility and decision-making authority concerning major long-term issues. The court also restrained the father from contacting the child and attending the maternal grandmother's residence or the child's school.

The final orders of the court included an injunction requiring the father to stay away from the court and the maternal grandmother's residence, with specific instructions for the maternal grandmother to collect the child and enroll them in school. The Independent Children's Lawyer was authorised to provide the father with relevant documents and copies of the court's orders and reasons. The matter was adjourned to September 2024 for an interim defended hearing. The court also noted the release of the child impact report and the availability of a school place for the child.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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