Luga & Hayes

Case [2025] FedCFamC2F 6


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Luga & Hayes [2025] FedCFamC2F 6

File number(s): ADC 697 of 2023
Judgment of: JUDGE PARKER
Date of judgment: 8 January 2025
Catchwords: FAMILY LAW – PARENTING – allegations of sexualised behaviour on part of child – competing allegations of risk to child including concerns relating to parental mental health and substance abuse – Father presents as unduly suspicious and critical of Mother and her parenting - longstanding equal time arrangement no longer suitable
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 68B

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 8.15(3)(e), 12.13(3)(b)

Cases cited:

A & A [1998] FamCA 25; (1998) FLC ¶92-800

B & B [1993] FamCA 143; (1993) FLC ¶92-357

Bennett & Bennett [2001] FamCA 462; (2001) FLC ¶93-088

Blinko & Blinko [2015] FamCAFC 146

Carter & Wilson [2023] FedCFamC1A 9; (2023) FLC ¶94-129

Denton & Denton (No 3) [2024] FedCFamC1F 476

Flanagan & Handcock (2002) FLC ¶93-102

Harridge & Harridge [2010] FamCA 445

Illgen & Yike [2018] FamCA 17 at [125]

Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC ¶94-092

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

KN & SD & Secretary, Dept of Immigration & Multicultural Affairs [2003] FamCA 610; (2003) FLC ¶93-148

M & M [1988] HCA 68; (1988) 166 CLR 69

Melounis & Melounis (No 4) [2024] FedCFamC1F 778

N & S & The Separate Representative [1995] FamCA 139; (1996) FLC ¶92-655

Napier & Hepburn [2006] FamCA 1316; (2006) FLC ¶93-303

Oyama & Oyama [2024] FedCFamC1F 738

Pickford & Pickford [2024] FedCFamC1A 249

Ramzi & Moussa [2022] FedCFamC2F 1473

Vasser & Taylor-Black [2007] FamCA 547; (2007) FLC ¶93-329

Division: Division 2 Family Law
Number of paragraphs: 215
Date of hearing: 3-6 December 2024
Place: Adelaide
Counsel for the Applicant: Ms Cocks
Solicitor for the Applicant: Adelta Legal
Solicitor Advocate for the Respondent: Mr Wabnitz
Solicitor for the Respondent: Daniel John Lawyers
Solicitor Advocate for the Independent Children's Lawyer: Ms Olsson
Solicitor for the Independent Children's Lawyer: Silkwoods

ORDERS

ADC 697 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS LUGA

Applicant

AND:

MR HAYES

Respondent

AND:

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE PARKER

DATE OF ORDER:

8 JANUARY 2025

UPON NOTING THAT:

A.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to an comply with an order are set out in Annexure A and the Fact Sheet from the Federal Circuit and Family Court attached hereto and these particulars are included in and form part of these orders.

THE COURT ORDERS THAT:

1.All previous parenting orders with respect to the child X born in 2019 (‘X’), save…

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AGLC
Luga & Hayes [2025] FedCFamC2F 6
Case
[2025] FedCFamC2F 6
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia heard a parenting matter between Ms Luga and Mr Hayes concerning their child X, born in 2019. The case involved allegations of sexualised behaviour on the part of the child, as well as competing concerns about the child's safety, including parental mental health and substance abuse issues. The father was perceived as unduly suspicious and critical of the mother's parenting, and the longstanding equal time arrangement was deemed unsuitable. The court was required to determine the best interests of the child regarding parental responsibility, decision-making, and the parenting arrangement.

The court found that the allegations of sexualised behaviour and concerns about parental mental health and substance abuse were serious but did not provide sufficient grounds to change the existing arrangements radically. However, the court concluded that the father's undue suspicion and critical stance towards the mother's parenting undermined the child's welfare. The court noted the importance of maintaining a stable and supportive environment for the child. Consequently, the court determined that the mother should have sole parental responsibility and decision-making authority for major long-term issues, while also providing the father with an opportunity to express his views on such decisions.

The court ordered that the mother have sole parental responsibility and decision-making responsibility for X. The mother must advise the father in writing of any decisions she intends to make, provide him with an opportunity of no less than 14 days to give his views, and inform him immediately upon making a decision. X will live with the mother, with specific arrangements for spending time with the father, including alternate weekends and during school holidays. Special occasions, such as Christmas Eve and Father's and Mother's Days, are also addressed in the orders. The court further ordered that the parties communicate via a parenting app and keep each other informed of major medical issues involving X. Additionally, the court restrained both parties from denigrating each other in the presence of X, exposing X to family violence, discussing the proceedings with X, and posting information about the proceedings on social media. The appointment of the Independent Children's Lawyer was discharged, and all extant applications were dismissed.

Orders

Orders of the court

ADC 697 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS LUGA

Applicant

AND:

MR HAYES

Respondent

AND:

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE PARKER

DATE OF ORDER:

8 JANUARY 2025

UPON NOTING THAT:

A. Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to an comply with an order are set out in Annexure A and the Fact Sheet from the Federal Circuit and Family Court attached hereto and these particulars are included in and form part of these orders.

THE COURT ORDERS THAT:

1. All previous parenting orders with respect to the child X born in 2019 (‘X’), save for order 1 of the orders made on 6 December 2024, be discharged.

2. The Mother have sole parental responsibility and decision-making responsibility for all major long-term issues relating to X.

3. In relation to making such decisions, the Mother:

(a) advise the Father in writing of any such decisions she intends to make;

(b) provide the Father with an opportunity of no less than 14 days’ duration to provide his views before making her decision; and

(c) advise him forthwith upon the decision being made.

4. X live with the Mother.

5. X spend time with the Father as follows:

(a) Each alternate weekend from the conclusion of Childcare/Kindergarten/School (or 3:00pm if there is no Childcare/Kindergarten/School) on Friday until the commencement of Childcare/Kindergarten/School (or 9:00am if there is no Childcare/Kindergarten/School) on the following Monday;

(b) In the intervening week from the conclusion of Childcare/Kindergarten/School (or 3:00pm if there is no Childcare/Kindergarten/School) on Thursday until the commencement of Childcare/Kindergarten/School (or 9:00am if there is no Childcare/Kindergarten/School) on Friday.

(c) Such further and other times as may be agreed between the parties in writing.

6. During school holidays, paragraphs 5(a) and 5(b) shall be suspended and X shall spend equal time with each of the parties, with such time to take place on a week about basis unless otherwise agreed between the parties in writing.

7. Notwithstanding any other order, X shall spend time with each of his parents during special occasions as follows:

BY CONSENT:

(a) With the Father from 10:00am until 5:00pm on Father’s Day;

(b) With the Mother from 10:00am until 5:00pm on Mother’s Day;

BY THE COURT:

(c) With the Mother from 4:00pm Christmas Eve until 4:00pm on 25 December and with the Father from 4:00pm on Christmas Day until 4:00pm on 26 December in even numbered years; and

(d) With the Father from 4:00pm on Christmas Eve until 10:00am on Christmas Day and from 4:00pm on Christmas Day until 10:00am on Boxing Day; and with the Mother from 10:00am until 4:00pm on Christmas Day, in odd numbered years.

(e) Such further and other times as may be agreed between the parties in writing.

8. The parties shall communicate via AppClose or a similar parenting app if AppClose is no longer available.

THE COURT FURTHER ORDERS BY CONSENT:

9. All handovers which do not take place at X’s school shall take place at the respective residences of the parents, with the parent who is to collect X collecting him from the other parent’s home, or at such other location as the parties shall agree in writing.

10. The parties shall each keep the other informed of any major medical issues involving X, particularly of any attendances upon a medical professional, treatment prescribed, any medication requirements or medical appointments and notification of any medical emergency as soon as possible.

11. The parties shall each be restrained and an injunction is hereby granted restraining each of them from:

(a) Denigrating the other in the presence or hearing of X or allowing any other person to do so;

(b) Exposing X to family violence;

(c) Discussing these proceedings with X or in his presence or allowing any other person to do so; and

(d) Posting any information relation to these proceedings on any social media platform.

BY THE COURT:

12. The appointment of the Independent Children’s Lawyer is discharged.

13. All extant applications are otherwise dismissed.

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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