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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CaseChat Overview and Summary
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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