Heyden & Lester (No 2) - [2022] FedCFamC2F 1394

Federal Circuit and Family Court of Australia
(DIVISION 2)
Heyden & Lester (No 2) [2022] FedCFamC2F 1394

File number(s): MLC 14204 of 2020

Judgment of: JUDGE HARLAND

Date of judgment: 17 October 2022

Catchwords:
FAMILY LAW – parenting – court child expert flags high risk including risk of fatality due to father’s family violence, drug use, criminal recidivism and lack of insight – father failed to address risk issues in his evidence – father legally represented throughout proceedings – oral application for change of surname

PRACTICE AND PROCEDURE – father failed to appear – use of proceedings to continue coercive controlling violence – need to protect mother and child from further violence – father is required to seek leave to commence further proceedings

Legislation: Family Law Act1975 (Cth), Pt VII, Div 12A, ss 4AB, 64B(2)(g), 102NA

Cases cited:
Isles & Nelissen [2022] FedCFam1A 97

Oberlin & Infeld [2021] FamCAFC 66

Heyden & Lester [2021] FedCFamC2F 447

Family Court of Australia and Federal Circuit Court of Australia, Family Violence Best Practice Principles (4th edition, 2016).

Australian Institute of Judicial Administration, National Domestic Family Violence Bench Book (June 2022).

Division: Division 2 Family Law

Number of paragraphs: 74

Date of last submission/s: 3 October 2022

Date of hearing: 29 & 30 September 2022

Place: Melbourne

Counsel for the Applicant: Mr Howe

Solicitor for the Applicant: RM Commercial & Family Lawyers

Counsel for the Respondent: Mr Lethlean

Solicitor for the Respondent: Victoria Legal Aid

Counsel for the Independent Children's Lawyer: Ms Elleray

Solicitor for the Independent Children's Lawyer: Gordon Ainger Legal
ORDERS

MLC 14204 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR HEYDEN

Applicant

AND:
MS LESTER

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE HARLAND

DATE OF ORDER:

17 October 2022

THE COURT ORDERS THAT:
1.Leave is granted for the matter to proceed on an undefended basis.
2.All previous orders in these current proceedings be discharged.
3.The mother have sole parental responsibility for the child X born in 2017 (“the child”).
4.The child live with the mother.
5.The child spend no time with the father.
6.For the personal protection of the mother and the child, the Father, his servants and/or agents (including friends and family members), be and are hereby prohibited from:
(a)Approaching the mother and/or the child or remain within 5 metres of the mother and/or child;
(b)Go to or remain within 200 metres of any place where the mother and/or child lives, works or attends school;
(c)Contacting or attempting to contact the Mother and/or the child by any means;
(d)Attempting to locate, follow or keep under surveillance the Mother and/or the child;
(e)Publishing on the internet, by email, posts or other electronic communication any material about the Mother and/or the child including on social media;

7.Pursuant to section 68P of the Family Law Act 1975 (Cth), to the extent that these orders are inconsistent with the Final Intervention Order made 15 December 2021 (Case Number …) these final orders shall prevail.
8.For the purposes…

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 Heyden & Lester (No 2)

Details

AGLC: Heyden & Lester (No 2) [2022] FedCFamC2F 1394
Case: [2022] FedCFamC2F 1394
Decision Date

CaseChat Overview and Summary

This case involved parenting proceedings between Mr Heyden and Ms Lester, parents of a child named X. The primary concern was the risk of family violence posed by the father, Mr Heyden, and his impact on the child's well-being. The court considered multiple issues, including the allocation of parental responsibility, the potential for supervised contact between the father and the child, and the need for protective orders to safeguard the mother and child from further harm.

The legal issues before the court were whether the mother should have sole parental responsibility over the child, if the mother should be able to change the child's surname and obtain a passport without the father's consent, and whether there was an unacceptable risk of harm to the child if he came into contact with his father. The court had to weigh the risks of family violence against the child's right to have a relationship with both parents.

The court found that the father presented an unacceptable risk of harm to the child due to his history of family violence, drug use, and criminal behaviour. The court child expert's reports highlighted the high risk of fatality associated with the father's conduct and noted that the father had not meaningfully engaged with the identified risks. The father's failure to attend the trial and provide consistent evidence further raised concerns about his credibility and commitment to change.

Based on the evidence presented, the court concluded that it was in the child's best interests for the mother to have sole parental responsibility and for the child to have no contact with the father. The court also granted the mother's request to change the child's surname and obtain a passport without the father's consent. In addition, the court imposed restrictions on the father's ability to commence further proceedings without first obtaining leave from the court, in order to protect the mother and child from systems abuse.

In summary, the court's primary concern was the safety and well-being of the child in light of the father's history of family violence and other risks. The court determined that the risks posed by the father outweighed any potential benefits to the child of maintaining a relationship with him. The orders made were aimed at protecting the mother and child from further harm and ensuring the child's best interests were prioritised.

Orders