FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lilley & Gabor [2023] FedCFamC2F 1427
File number(s): MLC 3265 of 2023 Judgment of: JUDGE TURNBULL Date of judgment: 29 September 2023 Catchwords: FAMILY LAW – REVIEW of Interim Orders made by senior judicial registrar changing child living arrangements, change of school and restraint on contact with step-father – earlier court findings exonerating the step-father of sexual abuse allegations Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, s65D
Evidence Act 1995 (Cth) s140
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.07(1)
Cases cited: Bringinshaw v Briginshaw (1938) 60 CLR 336
Eaby & Speelman[2015] FamCAFC 104
Isles & Nelissen [2022] FedCFamC1A 97
Marvel & Marvel[2010] FamCA 240
Murphy & Murphy [2007] FamCA 785
Napier & Hepburn [2006] FamCA 1316
SS & AH[2010] FamCAFC 13
White and Mathers [2012] FamCA 645
Division: Division 2 Family Law Number of paragraphs: 55 Date of last submission/s: 25 September 2023 Date of hearing: 25 September 2023 Place: Hobart – Via Ms Teams Counsel for the Applicant: Mr Werner Counsel for the Respondent: Ms Jeans ORDERS
MLC 3265 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GABOR
ApplicantAND: MR LILLEY
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
29 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The Review is allowed.
2.That paragraphs 1,2, 3, 4, 7, 12 and 15 of the Orders of 24 July 2023 be discharged.
3.That until further order the child X born 2014 live with the Mother, commencing 30 September 2023 at 11.00 a.m.
4.That until further order X spend time with the Father:
(a)During school terms, each alternate weekend from 5.30 p.m. Friday until 6.30 p.m. Sunday;
(b)During holidays, for half of all school holidays on a week about basis commencing the day school concludes with the first week being with the father and being inclusive of Christmas Day in ‘odd’ years and with the mother in ‘even’ years; and
(c)By telephone on 3 occasions per week at agreed times and failing agreement at 4.30 p.m. on Monday, Wednesday and Thursday.
5.In relation to the summer holidays in the 2023/2024 school holidays the following arrangements apply for time with the father:
(a)From 5.00 p.m. on 20 December 2023 to 5.00 p.m. on 26 December 2023.
(b)From 5.00 p.m. on 2 January 2024 to 5.00 p.m. on 9 January 2024; and
(c)From 5.00 p.m. on 16 January 2024 to 5.00 p.m. on 23 January 2024.
6.That changeovers be at Town B McDonalds.
7.That until further Order X attend G School.
8.The Mother will do all things to ensure that X refers to Mr D by his given name and not ‘Dad’.
9.That until the last day of X’s school term 2023:
(a)The Mother be in substantial attendance when Mr D and X are in the home together; and
(b)The Mother is not required to be in substantial attendance when…
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- [2023] FedCFamC2F 1427
- Decision Date
CaseChat Overview and Summary
Judge Turnbull, in reviewing the interim orders, considered the best interests of the child as the paramount concern. The court found that the previous orders placed undue restrictions on the child’s contact with the step-father, Mr D, despite his exoneration. Additionally, the court highlighted the importance of maintaining stability in the child's education and living arrangements. The judge modified the living arrangements to allow the child to live primarily with the mother but with specified times for the father to have contact. The court also relaxed the restrictions on the step-father, allowing him to be addressed by his given name and permitting supervised visits. The decision emphasised the need to protect the child from family violence and the importance of both parents ensuring compliance with court orders.
The court's final orders included discharging certain provisions of the earlier orders and setting new terms for the child's living arrangements, contact times with the father, and school attendance. The new arrangements included specific times for the father to spend with the child during school terms and holidays, with changeovers at a specified location. The court also mandated that the mother ensure the child refers to the step-father by his given name and facilitated certain conditions for visits from the Department of Families, Fairness and Housing. The mother and father were both restrained from exposing the child to family violence. The application for review was dismissed in all other respects, and the matter was set for further directions.
Orders
Orders of the court
MLC 3265 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS GABOR
Applicant
AND:
MR LILLEY
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
29 SEPTEMBER 2023
THE COURT ORDERS THAT:
1. The Review is allowed.
2. That paragraphs 1,2, 3, 4, 7, 12 and 15 of the Orders of 24 July 2023 be discharged.
3. That until further order the child X born 2014 live with the Mother, commencing 30 September 2023 at 11.00 a.m.
4. That until further order X spend time with the Father:
(a) During school terms, each alternate weekend from 5.30 p.m. Friday until 6.30 p.m. Sunday;
(b) During holidays, for half of all school holidays on a week about basis commencing the day school concludes with the first week being with the father and being inclusive of Christmas Day in ‘odd’ years and with the mother in ‘even’ years; and
(c) By telephone on 3 occasions per week at agreed times and failing agreement at 4.30 p.m. on Monday, Wednesday and Thursday.
5. In relation to the summer holidays in the 2023/2024 school holidays the following arrangements apply for time with the father:
(a) From 5.00 p.m. on 20 December 2023 to 5.00 p.m. on 26 December 2023.
(b) From 5.00 p.m. on 2 January 2024 to 5.00 p.m. on 9 January 2024; and
(c) From 5.00 p.m. on 16 January 2024 to 5.00 p.m. on 23 January 2024.
6. That changeovers be at Town B McDonalds.
7. That until further Order X attend G School.
8. The Mother will do all things to ensure that X refers to Mr D by his given name and not ‘Dad’.
9. That until the last day of X’s school term 2023:
(a) The Mother be in substantial attendance when Mr D and X are in the home together; and
(b) The Mother is not required to be in substantial attendance when Mr D is attending X’s community based extracurricular activities or school (including school transport pick-ups).
(c) That the Mother accept and facilitate any visit from DFFH to verify compliance with these Orders.
10. The Mother and Father are restrained from exposing X to family violence as defined in s 4AB of the Family Law Act 1975 (Cth) nor allowing any other person to do so.
11. The Application for Review filed 31 July 2023 be otherwise dismissed.
12. The matter otherwise remains listed for Directions before the senior judicial registrar on 21 November 2023 at 12:00 noon.
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.
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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