FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nagle & Nagle [2024] FedCFamC2F 594
File number(s): PAC 4392 of 2021 Judgment of: JUDGE TURNBULL Date of judgment: 15 May 2024 Catchwords: FAMILY LAW – PARENTING – where the children live with Mother who relocated 3 hours away from the Father post separation – where the Father does not oppose the children living with the Mother but wants her and the children to return to an area closer to his residence – where the eldest child is exhibiting reluctance to spend overnight time with the Father – where the parents have a poor level of communication – whether an order should be made for the Mother to have sole parental responsibility for educational and medical matters – whether the Court should require the Mother and children to relocate to an area closer to the Father’s residence – the nature of the time the Father will spend with the children – Independent CHILDREN’S LAWYER’S COSTS (ICL) – whether either party would suffer hardship if ordered to contribute towards the ICL’s costs. Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Cases cited: Adamson & Adamson (2014) FLC 93–622
Bant & Clayton [2019] FamCAFC 198; (2019) FLC 93-924
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Boyce & Boyce [2015] FamCAFC 60
Briginshaw v Briginshaw (1938) 60 CLR 336
Dundas & Blake [2013] FamCAFC 133
Godfrey & Sanders [2007] FamCA 102
Goode & Goode [2006] FamCA 1346
Isles & Nelissen [2022] FedCFamC1A 97
Isles & Nellison [2021] FedCFamC1F 295
Koyroyshs & Koyroyshs [2020] FamCA 626
Legal Aid ACT & Westwell [2021] FamCAFC 50
Lim & Zong [2021] FamCAFC 165
Marvel & Marvel (No 2) [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR & GR (2010) 240 CLR 461
Murphy & Murphy [2007] FamCA 795
Robertson & Sento [2009] FamCAFC 49
Sampson and Hartnett (No 10) [2007] FamCA 1365; (2007) FLC 93-350
Theodore & Theodore (No. 3) [2021] FamCA 452
Wagstaff & Wagstaff[2021] FedCFamC2F 507
Withers & Russell [2016] FamCA 793
Division: Division 2 Family Law Number of paragraphs: 219 Date of last submission/s: 12 January 2024 Date of hearing: 14 & 15 September 2023 in Suburb G, 16 & 17 October 2023 via Ms Teams from Hobart, 30 November via Ms Teams from Launceston, 12 December 2023 via Ms Teams from Hobart and 12 January 2024 in Hobart. Place: Suburb G – delivered in Hobart Counsel for the Applicant: the Applicant appeared in person Counsel for the Respondent: the Respondent appeared in person Counsel for the Independent Children's Lawyer: Ms M Rebehy Solicitor for the Independent Children's Lawyer: Burbank & Brown Lawyers and Conveyancers ORDERS
PAC 4392 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR NAGLE
Applicant
AND: MS NAGLE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
15 MAY 2024
THE COURT ORDERS THAT:
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CaseChat Overview and Summary
The court considered several factors, including the reluctance of the eldest child to spend overnight time with the Father, the poor communication between the parents, and the children's current living arrangements with the Mother. The court recognised that the Father did not oppose the children living with the Mother but wanted them to relocate closer to his residence. The court found that while the Father wanted the children to move closer to him, this was not in the children's best interests. The court determined that the Mother should have sole parental responsibility for educational and medical matters, with the Father being invited to provide his views on significant decisions. The court also established a detailed schedule for the children's time with each parent, including specific arrangements for school terms and holidays, as well as special occasions.
In its reasoning, the court emphasised the importance of maintaining a respectful and cooperative relationship between the parents for the children’s wellbeing. The court also noted the necessity of ensuring that the children have access to both parents and that their educational and medical needs are adequately addressed. The court concluded that neither party should contribute to the Independent Children's Lawyer's costs, finding that neither party would suffer hardship if required to do so.
The court made several orders, including that the Father and Mother have equal shared parental responsibility for the children except for educational and medical decisions, which the Mother would handle solely. The children were to continue living with the Mother, and specific arrangements were set for their time with the Father. The court also mandated the use of a communication app and outlined specific rules for communication and conduct between the parents. The orders also included provisions for the children's health, education, and special occasions, ensuring that both parents remained involved in the children's lives.
Orders
Orders of the court
PAC 4392 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR NAGLE
Applicant
AND:
MS NAGLE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
15 MAY 2024
THE COURT ORDERS THAT:
1. Save for the issues of the children’s health and education, Mr Nagle (‘the Father’) and Ms Nagle (‘the Mother’) have equal shared parental responsibility for the children X, born in 2012, Y, born in 2013, and Z, born in 2015 (‘the children’).
2. The Mother shall have sole parental responsibility for decisions relating to the children’s education and medical treatment.
3. In exercising sole parental responsibility in accordance with Order 2, the Mother shall:
(a) Inform the Father of any of any long term decision regarding the children’s education and/or medical treatment and invite the Father to provide her with any views he has in relation to such decisions for the children within 7 days of receiving a written request from the Mother to do so; and
(b) Consider the Father’s views and then;
(c) Inform the Father of any decision made by her within 7 days of such a decision being made.
4. The children live with the Mother.
5. X spend time with the Father during school terms and school holidays on the Sunday that the Father spends time with Y and Z from 10:00am until 5:00pm and otherwise in accordance with her wishes and as agreed between the parents in writing.
6. Y and Z spend time with the Father as follows:
(a) During school terms, each alternate weekend from 5:00pm on Friday until 5:00pm on Sunday;
(b) For the first half of all NSW term 1, 2 and 3 school holiday periods, or as agreed between the parties in writing;
(c) Subject to Order 7, for the NSW term 4 Christmas school holiday period, as agreed between the parties in writing but failing agreement on a week about basis;
(d) At such other times as agreed between the parties in writing; and
(e) For the purposes of this Order, the school holiday period is defined as commencing on at 9:00am on the first day following the last day of the school term and concluding at 3:00pm the last Sunday before the new school term commences.
7. Notwithstanding any other Order, Y and Z spend time with each parent on the following special occasions (‘special occasion time’):
(a) If not otherwise spending time with the Father, on the weekend of Father’s Day each year, from 5:00pm Friday until 3:00 pm Sunday.
(b) If not otherwise spending time with the Mother, on the weekend of Mother’s Day each year, from 5:00pm Friday until 3:00pm Sunday.
(c) On each of the children’s birthdays via a video call with the parent they are not otherwise spending time with as agreed but failing agreement at 7:30am.
(d) With the Father, from 1:00pm Christmas Eve until 1:00pm Christmas Day commencing 2023 and continuing each alternate year thereafter.
(e) With the Mother from 1:00pm Christmas Day until 1:00pm Boxing Day commencing 2023 and continuing each alternate year thereafter.
(f) With the Mother from 1:00pm Christmas Eve until 1:00pm Christmas Day commencing 2024 and continuing each alternate year thereafter.
(g) With the Father from 1:00pm Christmas Day until 1:00pm Boxing Day commencing 2024 and continuing each alternate year thereafter.
(h) With the Mother each year from 1:00pm Boxing Day until 1:00pm 2 January each year.
(i) With the Father from 1:00pm 2 January until 1:00pm 10 January each year.
(j) At other times as agreed.
8. X spend special occasion time with the Father and Mother in the terms of Order 7 save that the parents will respect X’s wishes in relation to any overnight time during such occasions.
9. Unless otherwise agreed in writing, the Mother shall deliver the children to the Father at Suburb B McDonalds at commencement of his time with the children and the Father shall return the children to the Mother at Suburb B McDonalds at the conclusion of his time.
10. The parents shall have telephone communication with the children as follows:
(a) At any times requested by the children; and
(b) The children shall communicate with the parent with whom they are not living or spending time by telephone on a Saturday and/or Wednesday between 5:00pm and 7:00pm.
11. The parties shall ensure that the other is kept informed of the following information in relation to the children:
(a) Any serious medical problems or severe illnesses suffered by any of the children whilst they are in their care;
(b) Any medication that has been prescribed to any of the children, and the reason for such medication;
(c) Any treatment that is required to be undertaken for any of the children;
(d) Any social, school or religious functions that any of the children are to attend from time to time; and
(e) The residential address for the children and any changes to such details with no less than 2 weeks notice.
12. The Mother and Father are at liberty to attend the hospital if any of the children are hospitalised while in the other party’s care and the parent that takes any of the children to hospital shall notify the other parent of that hospitalisation as soon as practicable.
13. The Mother and the Father are at liberty to contact any medical practitioner treating the children, at their own cost, to receive information regarding any of the children, including any treatments, medication and/or the child’s medical condition.
14. Each parent is entitled to attend all events involving the children including:
(a) Sporting events;
(b) Extracurricular activities that allow for parental and family attendance; and
(c) School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent helpers, parent and teacher interviews, canteen duties and social functions.
15. Within 28 days of the date of this Order, unless another form of written communication is agreed between the parties in writing, both parties must do all things to sign up to the Our Family Wizard App and, subject to the Notation set out below and referred to in the last two (2) sentences of this Order, pay one half the cost of the annual subscription each, as and when it falls due. It is further noted that the first 12 months of the subscription was regulated by Order 5 and its accompanying Notation of the Orders made 17 October 2023. Order 5 has been discharged as it has been replaced with this Order. The Notation is adapted and repeated at the end of this Order which, to remove doubt, deals with the payment of the App for the first 12 months of the annual subscription.
16. Both parents shall communicate via the Our Family Wizard App unless otherwise agreed, or in the event of an emergency.
17. For the purpose of communicating information between the parties, the parties shall communicate with each other in a respectful and courteous manner.
18. Each party refrain from:
(a) making critical and derogatory remarks in relation to the other party in the presence of hearing of the children and that each party shall do all things necessary to ensure that no third party makes any such critical or derogatory remarks about the other parties in the presence or hearing of the children; and
(b) Discussing the proceedings, or any issues arising out of these proceedings, with the children or permitting any third party to do so.
19. On a without admissions basis, the parties are restrained from:
(a) Exposing the children to violence including physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed at the children, the Mother, the Father or any other member of either party’s household; and
(b) Physically disciplining the children.
20. Save for these Orders, all extant Orders are discharged.
21. All extant applications, including the Independent Children’s Lawyer’s application for costs, are dismissed.
THE COURT NOTES THAT:
A. Orders 4, 6(b)-(e), 10, 11, 12, 14, 17, 18 and 19 were made by consent on 14 September 2023. Some of those Orders have been slightly amended or moved for ease of reading — the effect of the Orders has not changed. Orders 1, 2, 3, 5, 6(a), 8, 9, 13, 15, 16, 20 and 21 were made by virtue of the Court’s determination. All Orders have been incorporated into one document.
B. The Court further notes that there is no opposition from the Mother nor the Independent Children’s Lawyer to X spending overnight time with her Father on the same weekend as her siblings, provided it is in accordance with X’s wishes.
C. The parties agreed on 17 October 2023 to use My Family Wizard App and to that end the Father was to do the following and the obligation remains in place if it has not occurred:
(a) Make an application to C Organisation for any subsidy that can be obtained for the payment of the App;
(b) Pay for the App in its it totality;
(c) Advise the Mother with supporting documentation, the amount she will need to pay — being her half share of the balance outstanding;
(d) Provide the Mother with his bank account details;
(e) The Mother will then pay the balance by way of equal monthly instalments over a 12 month period.
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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