Nagle & Nagle - [2024] FedCFamC2F 594

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

M v M (1998) 166 CLR 69

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:
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TURNBULL
Overview

These are parenting proceedings concerning the children X, born in 2012 (currently 12 years of age), Y , born in 2013 (currently 10 years of age), and Z, born in 2015 (currently 8 years of age) (‘the children’).
X attends D School and is in grade 7.
Y attends E School and is in grade 5.
Z also attends E School and is in grade 3.
The children have Aboriginal ancestry, from the Father’s side of the family. X has begun to show interest in connecting with her Aboriginal heritage.[1]
[1] Trial: cross-examination of the Father.
Mr Nagle (‘the Father’) initiated proceedings in August 2021, seeking that the children continue to live with Ms Nagle (‘the Mother’) but spend time with him each week and for half of the children’s school holidays, and on special days.[2]
[2] Application for Final Orders of Mr Nagle filed 21 August 2021 (‘Father’s Application for Final Orders’).
Interim orders were made 3 November 2021, which provided that the children live with the Mother and that Y and Z spend time with the Father for one night, each alternate weekend. No orders were made for X. She was expressing reluctance to see the Father, and the parties decided to wait for the Child Impact Report released on 21 January 2022 — to obtain some feedback regarding her arrangements. An Independent Children’s Lawyer (‘ICL’) was also appointed.
On 22 March 2022, Orders were made for X to be enrolled in the F program and for the parties to attend a post separation co-operative parenting course.[3]
[3] These orders were repeated in the Orders of 4 May 2022.
On 4 May 2022, following a hearing, a suite of interim Orders were made, including an Order that the children live with the Mother and spend time with the Father from Friday until Sunday each alternate weekend (except for X who would spend two hours each alternate Sunday with him and her siblings). Orders were also made for Y and Z’s school holidays to be shared and for time on special days and by telephone. The changeovers were to occur with the children being delivered to the Father at the commencement of his time and for him to return the children at the conclusion of his time.[4]
[4] Order of Senior Judicial Registrar Hayward, in Nagle & Nagle (Federal Circuit and Family Court of Australia Division 2, PAC4392/2021, 4 May 2022). Orders were also made for school holiday time, special occasions, changeovers, telephone communication, and restraints.
On 14 February 2023, an Order was made releasing the Family Report of Mr H (‘the Family Consultant’).[5]
[5] Family Report of Mr H dated 3 February 2023 (‘Family Report’).
The Final Hearing commenced on 14 September 2023 in Suburb G, and continued for 6 days over October, November, and December, with some of the trial conducted over MS Teams. Both the Father and the Mother were unrepresented throughout. Ms Rebehy appeared as Counsel for the ICL.
At the outset and conclusion of the trial, the Father sought:
·equal shared parental responsibility;
·for the children to reside with the Mother in the Sydney Metropolitan area (being within 20km radius of Suburb G);
·for his term time to be from 3:00pm Friday after school until Monday 9:00am at school drop-off; and
·orders relating to special occasions and communication/information sharing.[6]
[6] Outline of Case of Mr Nagle filed 8 September 2023, 5 (‘Father’s Case Outline’).
The Mother had not filed updated trial material by the commencement of the trial.[7] Her Response filed 1 November 2021[8] sought that:
·she have sole parental responsibility for the children;
·the children live with her;
·X spend time with the Father according to her wishes;
·Y and Z spend time with the Father on alternate weekends from 4:00pm Friday to 3:00pm Sunday (during school terms) and up to five consecutive nights during term school holidays and up to ten consecutive nights during the end of year holidays;
·each party have time on special occasions; and
·there be orders around the parties’ communication.
[7] The Mother was permitted to rely upon an affidavit affirmed in Court 14 September 2023, filed with the Court a day later on 15 September 2023.
[8] Response to Application for Final Orders of Ms Nagle filed 1 November 2021. It is noted that the Mother did not comply with trial directions or provide updated case documents which she intended to rely upon at the final hearing.
The ICL’s position, at the end of the trial, was that the parties share parental responsibility (save for the Mother exercising sole parental responsibility for education and medial issues),[9] that the children live with the Mother in Suburb J, and Z and Y spend alternate weekends and half school holidays with the Father. It was proposed that X spend such time with the Father that accords with her views.
[9] Outline of Case of the Independent Children’s Lawyer filed 8 September 2023 (‘ICL Case Outline’).
At the outset of the trial, the ICL and Counsel for the ICL, worked hard with the parties to narrow the issues in dispute. This resulted in Final Orders being made about several matters including:
·telephone time;
·school holiday and special occasion time for Y and Z;
·information sharing; and
·mutual injunctions relating to conduct in the presence of the children.[10]
Those Orders will be consolidated with the other Orders I will make in this matter.[11]
[10] Order of J Turnbull in Nagle & Nagle (Federal Circuit and Family Court of Australia Division 2, PAC4392/2021, 14 September 2023) (‘Orders of 14 September 2024’).
[11] The agreed orders to be consolidated with my orders have been slightly amended for ease of reading. The effect of the agreed orders has not changed. Paragraph 9.4 of the 14 September 2023 has, however, been removed in its entirety as it contradicted the intent of the parties to share Y and Z’s school holiday periods. To ensure there is certainty, both parents will share the term school holidays with Y and Z irrespective as to whether Easter falls within a school holiday period.
On 15 September 2024 the trial adjourned part-heard, with the parties agreeing that X’s time with the Father would increase during the adjourned period.[12] Both parties were also left to consider whether they would engage in a process of Family Therapy both ultimately declined.
[12] Order of J Turnbull in Nagle & Nagle (Federal Circuit and Family Court of Australia Division 2, PAC4392/2021, 15 September 2023) Notation C.
On 17 October 2023, the parties entered into interim Orders that the Father spend time with X:
·on Sunday 29 October 2023 from 12:00pm to 5:00pm;
·on Sunday 12 November 2023 from 12:00pm to 5:00pm;
·on Sunday 26 November 2023 and each alternate weekend thereafter from 10:00am to 5:00pm;
·with X to be collected by the Father at the commencement of time from the Suburb B McDonalds; and
·for the parties to do all things to enable them to use the My Family Wizard App.

Final submissions were received in December 2023 and January 2024.[13] The Mother agreed with the Orders sought by the ICL.[14] The Father maintained his position that the Mother and the children should return to live in the Suburb G area and that he have alternate weekend time with all three children. The decision was reserved on 12 January 2024.
Brief History
[13] By virtue of the Orders of 12 December 2023, dot point written summaries of argument were to be received by 12 January 2024, at which time the decision would be reserved.
[14] Exhibit I4: ICL proposed final minute order dated 30 November 2023 (‘Exhibit I4’). The Mother sought a slight amendment to the order relating to the use of communication Apps.
The parties and the children
The Mother was born in 1982 and is currently 41 years of age. She works Monday to Thursday as a public servant.[15] The Mother and children reside together at K Street, Suburb J, NSW.[16] The maternal Grandmother cares for the children some mornings and afternoons so that she can attend work.[17]
[15] Affidavit of Ms Nagle filed 15 September 2024 [3] (‘Mother’s Trial Affidavit’).
[16] Ibid [4].
[17] Ibid [5].
The Father was born in 1983 and is currently 41 years of age. He works as a professional.[18] The Father lives with his partner, Ms M, and her two children aged 13 and 11, at L Street, Suburb N.[19]
[18] Affidavit of Mr Nagle filed 25 August 2023 (‘Father’s Trial Affidavit’).
[19] Ibid [28]. According to Wikipedia, ‘Suburb N is a suburb of Sydney, in the state of New South Wales, Australia. It is 15 kilometres (8 miles) from the Sydney central business district, in the local government area of the Region O.’
The distance between the parties’ homes is approximately 70km, with a travelling time by car of approximately 1 hour and 15 minutes.[20]
[20] Mother’s Trial Affidavit (n 15) [8]. The estimate is subject to traffic conditions.
The parties commenced their relationship in 2005 and married in 2011.[21] In 2009, they purchased a property situated at P Street, Suburb Q (‘the Suburb Q property’).[22]
[21] Father’s Trial Affidavit (n 18) [3], [5].
[22] Ibid [4].
X was born in 2012. The Father said that the parties’ relationship began to degrade sometime after X was born, worsened by the considerable anguish around X’s sickness and subsequent diagnosis.[23]
[23] Ibid [8]. In the early 2012, X was diagnosed with a medical condition.
In or around 2013, the Father joined the public service. He claimed that his rostered shiftwork also created conflict between the parties.[24] Around this time the Father was diagnosed with a medical condition.[25]
[24] Ibid [9].
[25] Details of father’s medical condition.
In 2013, Y was born.
In 2015, Z was born.
The Mother maintained that she has been the primary carer for the children since their birth.[26]
[26] Affidavit of Ms Nagle filed 1 November 2021 [7] (‘Mother’s November Affidavit’).
Events leading to separation
As a result of the increasing conflict between the parties, the parties attended counselling through S Centre and other agencies between 2013 to 2017.[27]
[27] ICL Case Outline (n 9) 4.
In or around 2016, the parties renovated their home whilst residing in the Mother’s parents’ house.[28] The Father described increasing conflict over the renovations and his work commitments at that time.[29]
[28] Father’s Trial Affidavit (n 18) [11]-[12].
[29] Ibid [12]-[15].
In 2016, the Father asserted the Mother asked him to leave the maternal grandparents home and he slept on a camp stretcher at the building site of the Suburb Q property while it was being renovated.[30] Around this time, the Father reported that the Mother had ‘increasing levels of aggression, lashing out in physically violent outbursts. These outbursts included, but were not limited to, kicking walls and doors, and punching/screaming into pillows.’[31] The Father then moved back into the maternal grandparents home where he claimed to have been subject to physical and verbal abuse from the Mother.[32] Notwithstanding the significant allegations made by the Father in his trial affidavit, the Father accepted that the children should live primarily with the Mother. Neither party has ever taken a family violence order out against the other, and neither submits that the other places the children at an unacceptable risk of harm.
[30] Ibid [15]-[16].
[31] Ibid.
[32] Ibid [18].
The parties resided at the maternal grandparent’s home until they separated on a final basis in early 2018, with the Father moving out and returning to the matrimonial family home.[33]
[33] Mother’s November Affidavit (n 26) [8].
The Mother asserted that the Father lived at the Suburb Q property until approximately mid-2019. This property was sold in mid-2020.[34] At the time of separation, the Father was working with the public service and had a second job.[35]
[34] Ibid [9].
[35] Ibid [10].
Events following separation
After separation, both parties reported significant ongoing conflict. To try and resolve their issues, the parties attended counselling through S Centre in 2019. This, however, proved unsatisfactory to the Father who said that he left the last session ‘in disgust’.[36] The Mother said that the Father ‘walking out’ of counselling left issues unresolved.[37]
[36] Father’s Trial Affidavit (n 18) [22].
[37] Mother’s November Affidavit (n 26) [25].
In 2019, the Father moved to R Street, Suburb T, which was furnished so that the children could enjoy regular overnight time.[38]
[38] Father’s Trial Affidavit (n 18) [23].
In early 2020, the Police attended the Mother’s home around midnight after a concerned call from the Father regarding the welfare of the children.[39] The Mother stated this was after he had unsuccessfully called the children on their phones, but they were in bed and missed the calls.
[39] Mother’s November Affidavit (n 26) [32].
In mid-2020, the Father moved to Suburb U.[40]
[40] Father’s Trial Affidavit (n 18) [24].
In early 2021, the Mother filed for divorce.
In or around mid-2021, the Mother purchased a property in Suburb J and moved there with the children.
In or around mid-2021, the Father moved to V Street, Suburb T to be closer to the children,[41] but had to move due to the increasing rental prices and pressure of child support payments.[42] In August 2021, he initiated proceedings in this Court.[43]
[41] Ibid [25].
[42] Ibid [27].
[43] Father’s Application for Final Orders (n 2).
In mid-2023, the Father moved into L Street, Suburb N with his partner Ms M and her two children.[44]
[44] Father’s Trial Affidavit (n 18) [28].
In late 2020, the parties resolved their property dispute by consent.
The Father commenced proceedings on 21 August 2021.
How the children have fared post separation
X
There was considerable focus at trial on the Father’s time and relationship with X. X had become increasingly resistant to spending extended periods of time in the Father’s care, which he believed to be the result of the Mother’s alienating behaviour[45] — allegedly escalating after X’s hair was cut whilst she was in his care. After the Interim Orders of 4 May 2022, his time with X decreased to two hours per fortnight in person and via facetime.[46] He stated:- ‘I seriously doubt my relationship with my eldest child will ever return to a close bond it once was before the respondent excluded her from my life,’[47] giving a stark example:
46. … In the school holidays the respondent dropped off [Y] and [Z] for the week, [X] however would not get out of the car. The mother respondent was wrestling with her screaming, “get out of the car.” [X] was crying and yelling. I watched them wrestling in the back of the respondents vehicle to which the respondent said, “help me drag her out”. [X] ran away crying. To this date [X] does not spend any overnight care with me other than two weekends since the interim orders were made.[48]
[45] Ibid [29]-[31], [46]
[46] Ibid [45]. During the Trial, the Father confirmed that he also communicates with X via social media.
[47] Ibid [46].
[48] Ibid. Under cross-examination, the Father agrees this occurred in 2023.
The Mother alleged that since mid-2022, the Father failed to comply with Orders to spend time with X, by making alternate arrangements, or, without notice, returning her earlier than ordered.[49] She claimed that X expressed reluctance to have overnight time well before the haircutting incident of mid-2021,[50] and, in fact, stopped spending time with the Father in early 2020, after he moved to Suburb U:
35.[X] began informing me more often throughout 2020 that she did not want to see her dad anymore but did not want to upset him. There were occasions when she would get angry while [Mr Nagle] was speaking to her and would walk away and refuse to speak to [Mr Nagle]. She started to refuse to stay at [Mr Nagle]’s home overnight, leaving [Y] and [Z] there only. By around the middle of 2020 [X] stopped staying overnight with [Mr Nagle] altogether. I was unable to get [X] to speak to me about how she was feeling. The most I could get out of her was that she was angry that her parents were not together and her family was different. She told me that she did not like staying at [Mr Nagle]’s home in [Suburb U] as she was uncomfortable there and that [Mr Nagle] would get angry with her and lie to her. [X] informed me that during a visit to [Mr Nagle]’s around [mid]-2020 her father got angry with her, he lifted her in the air by the front of her jumper and told her "I will make my own family without you."[51]
The Father’s time with X did not resume until mid-2021.
[49] Mother’s Trial Affidavit (n 15) [11].
[50] Trial: Mother’s re-examination. The Mother exhibited an email dated 12 August 2021 (Exhibit M3) where she requested that the Father does not to get X’s haircut.
[51] Mother’s November Affidavit (n 26) [35].
The Mother said that X told her that she did not want to spend overnight time with the Father because ‘she is not comfortable or ready’.[52] She said that X regularly returned upset after spending time with the Father, informing her that she is ignored or criticised by him.[53]
[52] Mother’s Trial Affidavit (n 15) [15].
[53] Ibid [16].
The Mother opined that X was more affected by the separation than Y and Z, so she sought treatment for her through W Psychology because she was not coping.[54] The Mother conceded that she did not want the Father involved in X’s treatment, and believed that his stated desire to be involved in the same, resulted from his fear of what X might say about him.[55] The Father subpoenaed W Psychology, and contended that his inability to participate in X’s therapy resulted in her treaters having a biased view, because they were fed incorrect information — including that he did not want to spend time with the children.[56]
[54] Trial: cross-examination of the Mother.
[55] Ibid.
[56] Trial: Father’s examination-in-chief.
In early 2022, the Mother enrolled X in the ‘F Program’, which she undertook from late 2022 to mid-2023. The results were positive:
14. … At the conclusion of the program her counsellor informed me [X] was an exceptional child with many tools and skills and she has seen a large number of children over her years.[57]
[57] Mother’s Trial Affidavit (n 15) [14].
The Mother maintained that X remains reticent to spend extended time with the Father, believing that she will refuse overnight time if it is ordered, as she wants to be in an environment that is familiar to her.
Z and Y
The Father’s time with Z and Y has largely continued as ordered without significant interruption, although the Father said that some of his requests for extra time have been refused by the Mother from time to time.
Z
The Mother asserted that Z has exhibited behavioural issues after separation, and he may have Attention-Deficit/Hyperactivity Disorder (ADHD). Difficulties first emerged when he started absconding from school in mid-2022. The Mother took Z to a psychologist for mood and emotional regulation. He was then referred to a paediatrician, who saw him in mid-2023. The Mother did not inform the Father about the appointment.
The Mother said that she informed the Father about some of Z’s issues, but he attributed the behaviour to Z living with women, stating ‘living with women only, is severely damaging his growth.’[58] The Mother produced email exchanges between herself, the Father, and the CC Medical Clinic — exhibited as M1 — showcasing the referral to determine if Z had ADHD, in which the Father expressed scepticism and concern:
From: [Mr Nagle]
Date: [early] 2023 at 7:13:21 pm AEDT
To: [Ms Nagle]
Subject: Re: Referral
[58] Exhibit M1: email exchange early 2023. The email is extracted above.
[Z] does not have ADHD.
I have absolutely nil issues with him when he is with me. He acts and behaves like a normal 7 year old boy. He needs to be active and enjoys when I play with him.
Can you please provide additional information about [Z] trying to abscond. If need be he can spend more time with me. In all honesty I think living with women only is severely damaging his growth.
Why wasn't this discussed with me earlier?
From: [Mr Nagle]
Date: [early] 2023 at 7:18:36 pm AEDT
To: [Ms Nagle]
Subject: Re: Referral
Two children with mental health issues. [Y] isn't doing great either. She has gone into her shell massively.
Not impressed. (original emphasis)
The Mother alleged a lack of support from the Father in navigating this process.[59] The Father denied any contact from the Mother regarding Z’s health and behaviour apart from the email in early 2023 (above) that ‘wasn’t particularly descriptive’.[60] The Mother stated that she was the one taking children to appointments and to school until this point in time, but conceded that there was no further information regarding Z’s health or diagnosis provided to the Father.
[59] Trial: cross-examination of the Mother.
[60] Ibid.
Y
No significant concerns were raised about Y during the trial. The Father did claim that the Mother had not kept him fully informed of Y’s weekend sporting activities. Both parents expressed a desire for Y to participate in representative sport.
Issues of concern raised by the parents during the trial
Communication and information for the Father about the children
The Father stated that, from when he moved in with his partner in mid-2023, the Mother has controlled all aspects of his time with the children, keeping his care to a minimum, ‘monetising child support’ and making communication about the children difficult:
29. [Ms Nagle] has controlled all aspects of child visitation. [Ms Nagle] has kept my care of our children to a minimum, monetizing Child Support assessments, keeping the payments in the top tier, rather than allowing the children access to me, their father. I have always requested more visitation from [Ms Nagle] which has either been regularly denied or controlled to make visitation as hard as possible, including no overnight care. It has not been uncommon for [Ms Nagle] to deny our children to spend time with me, choosing to leave our children with carers, when going out with friends. This was shown when I was walking home from work along [EE Street, Suburb G]… I had asked [Ms Nagle] for the kids that evening the days prior, which she said, “no we are busy.”
30. the Mother respondant consistently denied any access during the school holiday breaks. I would frequently ask to see the children which she would not respond or respond with ‘no’. The Respondant would take the children to live with her parents at [Town FF] whilst she worked from home at their former holiday home, no permanent residence.
31. the respondants relentless refusual to provide access for a meaningful relationship with the children extended has had a significant impact on my relationship and bond with the children.
Communication
32.I attempted to communicate with the [Ms Nagle] about the rumoured change in living location and details of child [X]’s mental health conditions; [Ms Nagle] has refused to answer all correspondence…
…
36. communication between the Respondent Mother and I has been fractured an non effective. I will send commincation via email which frequently does not get responded to. I have attempted to call the respondant with no answer and text messages to do get responded to either. The only communication that is effective is when the Respondant wants to change the Interium order arrangements tking the children on lavish extended holidays such as [Region GG]…
37.The Respondant Mother refuses to convey information set ou in the court orders regaring the chidlren such as hospital visits, school suspensions, behavioural issues at school and representative sporting events. One could only describe the respondants communication as ‘stonewalling’ a form of abuse.[61] (original emphasis)
[61] Father’s Trial Affidavit (n 18) [29]-[32], [36]-[37].
The Father also complained that he experienced difficulties obtaining information from the children’s new school — HH School — which he claimed breached Order 14 of the 4 May 2022 Orders.[62] Counsel for the ICL, however, successfully countered his claim by demonstrating that the school had attempted to address his concerns and organise meetings with him.[63]
[62] Ibid [38].
[63] During cross-examination of the Father, the Counsel for ICL highlighted multiple instances where the school had attempted to contact him or had in fact sent him information that he received. These instances included a permission slip sent to him in early 2023 which the Father denied he received. The Counsel for the ICL also highlighted a report for English and information regarding the external psychologist for X that was sent to the Father. During this cross-examination, the Father conceded that he had received one email from the school regarding X’s counselling and that it ‘was possible’ that he received an email regarding a parent teacher interview. He also agreed that the school had successfully contacted him and had organised a meeting between the parties. The Father, however, still adamantly affirmed that he was in constant battle with the school to receive information regarding the children. This line of questioning from the ICL led onto further questioning regarding complaints made by the Father against third parties involved in the children’s treatment at school, such as the school psychologist.
The Father also alleged that the Mother breached the 4 May 2022 Orders by failing to respond to his email requesting contact details of the children’s friends[64] — a point conceded by the Mother.[65]
[64] Exhibit F7: email dated 20 February 2022.
[65] Trail: cross-examination of the Mother.
The Mother did not accept that she has denied him time with the children, but it is clear, post separation, that there were some occasions where she would not agree to time until the Father confirmed the place of his new address and/or stopped ‘bad mouthing her’.[66] She also denied under cross-examination that she did not allow him time on occasion during the children’s holidays in 2021, stating that due to him having Covid, and he had them a week later.[67]
[66] Mother’s November Trial (n 26) [30]; Annexure Ms Nagle-04 email dated 16 July 2019; Annexure Ms Nagle-07 email dated 20 August 2020.
[67] Trial: cross-examination of the Mother.
The Mother’s concern regarding conflict, hostility, and volatility
The Mother alleged, post separation, her interactions with the Father have been very difficult:
13. Since we separated [Ms Nagle] has frequently been hostile, aggressive and intimidating during the times the children moved my care to his. He uses derogatory and insulting language to me and often swears at me in front of the children. On one occasion in or about [mid]-2018 I dropped the children to [Mr Nagle] at our home in [Suburb Q], I walked the kids to the door and he said to me "Now fuck off you dago cunt" in front of the children. I had a female friend in the car with me on the drive to [Mr Nagle]'s home. She was concerned about the number of times [Mr Nagle] telephoned my phone and messaged me as we were driving to meet him. She also witnessed the interaction between [Mr Nagle] and me at the home. [Mr Nagle] has frequently sworn at my parents when he picked up the children. On occasions he has sat in his car outside my parents' home beeping his horn impatiently or ringing my phone and sending messages saying "Hurry up, I am waiting." When he is angered like this he then usually drives off at high speed. On occasions he has said words such as "I'm never going to see you again" to the children out the front of my home. The children have informed me that [Mr Nagle] would sometimes video the changeover of the children on his mobile phone. During a changeover in [early] 2018, [Mr Nagle] said to me in front of the children "I wish you were dead." This was his reaction when I walked to the car and said "Goodbye” to the children. I have on a number of occasions said to [Mr Nagle] "Can you please speak civilly to me in front of the children during exchanges?" [Mr Nagle] said in an email to me [in mid]-2019 that he will never be civil to me... I now attempt to have as little contact as possible and will generally wait inside the house or at the front door when changeovers occur.[68]
[68] Mother’s November Affidavit (n 26) [13].

Communication was also an issue:
27. It remains constantly difficult to communicate with [Mr Nagle] in order for effective and timely decision making in relation to having the children's needs met. I am constantly faced with [Mr Nagle] intimidating, blaming or criticising me and/or others for situations instead of staying focused on conversations at hand about the children and due to these ongoing long term difficulties, I am seeking orders for sole parental responsibility.[69]
[69] Mother’s Trial Affidavit (n 15) [27].
The Mother also alleged that the Father breached the 4 May 2022 Orders by cutting his ordered time short — particularly with X:
12. E.g [In mid]-2022, [Mr Nagle] arrived with [Z] and [Y] to spend time with [X] at 2:30pm and returned the three children at 3:50pm, I emailed [Mr Nagle] about this and he suggested that as I drop the kids later than 5pm to him and as it was raining that day there was not much for them to do and I should be flexible. [In mid]-2022 (agreed makeup weekend) [Mr Nagle] arrived at my home at 2pm. I was not home and received a message asking where [X] was as it was 2pm as per orders and he was out the front waiting. I informed [Mr Nagle] the orders are 3pm for pick up. [X] and I returned home at 2:30pm from which she went with [Mr Nagle] and returned the three children at 4pm. [In mid]-2022, [Mr Nagle] cancelled his weekend [mid]-2022 with the children as he had the flu and did not wish to make the children sick. [In mid]-2022, I responded to an email from [Mr Nagle] that [X] did not wish to stay the week with him during the first week of the upcoming school holidays, however she wished to spend the day with him [in mid]-2022. I was working in the [Suburb G] office that day which was close to where [Mr Nagle] resided at the time and so I offered to drop [X] off and pick her up that same day, [Mr Nagle] did not respond to this request for the day with [X] even though I sought clarification again [in]-2022. [In mid]-2022, [Mr Nagle] arrived at 2pm to spend time with [X] and returned the children at 4pm. [In mid]-2022, [Mr Nagle] dropped off [Z] and [Y] at 2:40pm and left before [Z] and [Y] got into the house and without spending time or speaking to [X] which left her upset. [Z] and [Y] informed [X] and myself later that [Mr Nagle] had no money to spend time with [X]. [In late] 2022, [Mr Nagle] emailed me to advise he would drop the kids off at 3pm as it was forecast very heavy rain and there is nothing for them to do in [City JJ], I emailed back asking if he was not spending time with [X] again and he responded that he did not agree with the orders around visitation with [X]. [In early] 2023, [Mr Nagle] again dropped [Z] and [Y] home at 3pm and left without advising or spending time with [X], she was extremely upset on this occasion as one of her school friends was over and had stayed to meet [X]’s dad before leaving and [X] was embarrassed by the situation. [In mid]-2023, [Mr Nagle] was spending time with the three children and dropped off [X] before [Z] and [Y] at around 4:30pm, [X] came into the house crying her eyes out because [Mr Nagle] had told her 'get out of his car and she will regret not spending time with him and he will not be taking her for the two hours on the Sunday anymore'. [Mr Nagle] returned [Z] and [Y] later at 5pm the same day. [In mid]-2023, [Mr Nagle] returned [Z] and [Y] at the conclusion of his school holiday time at 12:30pm and left without spending time with [X]. [In mid]-2023, [Mr Nagle] picked up [X] at 1:30pm and returned all three children at 2:40pm.[70] (emphasis added)
[70] Ibid [12].
The tyranny of distance created by the Mother’s move to [Suburb J]
The Father claimed that the Mother’s relocation has made it harder for him to attend his children’s schooling activities and has impacted his relationship with his children. He highlighted X’s participation in a regional sporting event in City KK that he was unable to attend because it involved a three-hour drive, each way. The Father said that he has attended a game in City JJ, and other activities, notwithstanding the distance he has been required to travel.[71] Consequently, he sought an Order requiring the Mother and the children to relocate to an area in the Sydney Metropolitan area and within a 20km radius of [Suburb G].
[71] Trial: cross-examination of the Mother.
The Mother viewed the Father’s non-attendance at some of X’s sporting events as an example of the Father not prioritising her:
17. [X] recently informed me that she had messaged [Mr Nagle] saying it would mean the world to her if he would come and watch her [sports match], indicating how much her team had improved. [X] received no response from [Mr Nagle], until she later asked him on the phone with [Mr Nagle]telling her 'it is too far to travel'. [Mr Nagle] also promised both [Y] and [X] during a phone conversation that if they were successful at [the sports] Carnival he would attend the Regional [Sports] Carnival only to confirm a few days prior to the event that he was not attending as 'it was too far'.[72]
[72] Mother’s Trial Affidavit (n 15) [17].
The Mother opposed the Father’s application to have her and the children relocate closer to his home. She stated that she and the children are well settled and have a strong support network in Suburb J, including her family (her younger brother and his family, cousins, and her parents):
6. The children have settled in very well to our new home and have formed very close friendships at school and with our neighbours. The children will walk to and from school with their friends each day as the school is located within 400m from our home. The children have also formed many close friendships outside of school from participating in extra curricular activities. The children also enjoy spending time at the beach with several of their cousins who are located close by and [Z] is particularly keen on [outdoors activities which we] attend in our free time.[73]
[73] Ibid [6].
Z and Y attend HH School, which is a feeder school for D School , where X has commenced grade 7.[74] The Father said that he trusted the Mother’s choice of this school but that he wished that he had been asked for input.[75] The Mother said that HH School is meeting the children’s needs, and although the school has had difficulties dealing with the Father, this has not impacted the children.
[74] Ibid [18]; Trial: cross-examination.
[75] Trial: cross-examination of Father.
The Mother said that the drive from her home in Suburb J and the Father’s residence is between 70kms and 80 kms — according to Google Maps — and in ordinary traffic takes from one hour to one hour and twenty minutes, depending on the time of week.[76] During the trial, Google Map print outs were tendered by the ICL, evidencing the distance and travel time from the Mother’s residence to the Father’s residence and their residences to Suburb B McDonalds — the current changeover point.[77] That evidence established that the distance from the Father’s Residence to Suburb B McDonalds ranges from 30kms to 35kms or thirty minutes to one hour travelling time. The Mother’s residence to Suburb B McDonalds was estimated to range from 28 kms to 40kms or thirty minutes to one hour and five minutes.[78]
[76] Mother’s Trial Affidavit (n 15) [8]; Exhibit I3: Google Maps (‘Exhibit I3’).
[77] Exhibit I3 (n 76).
[78] The variation in time depended upon which route was taken and the time of day.
Child support
The Mother claimed that she is owed a considerable amount of child support, which the Father accepted and estimated to be $10,000 with penalties. The Father said that he meets the arrears with higher periodic payments, which the Mother disputed.[79] Screen shots of the child support statements were tendered and became Exhibit F14. How the debt was able to grow to that amount was in contention, with the Father alleging that the Mother had restricted his time with the children to maximise Child Support payments.
[79] Trial: examination-in-chief of the Father and cross-examination of the Mother.
Evidence
The Father relied upon:
·his Initiating Application filed 1 April 2021;
·his affidavit filed 25 August 2023;
·the Child Impact Report dated 21 January 2022;
·Notice of Risk, filed 21 August 2021;
·outline of Case filed 8 September 2023;
·written Submissions filed 11 January 2024; and
·several Exhibits.[80]
[80] The Father tendered a number of documents at Trial – Exhibit F1, F2, F3, F4, F5, F6, F7, F8, F9, F10, F11, F12, F13 and F14.
The Mother relied upon:
·her Response filed 1 November 2021;
·her affidavit of 1 November 2021; and
·her affidavit affirmed in Court 14 September 2023 and filed 15 September.[81]
[81] The Mother, having filed no documents compliant with trial directions, sought to file an updated affidavit in Court and rely upon an unsealed affidavit. This was affirmed by the Mother as true and correct and later filed on 15 September 2023. The Father then objected to paragraphs of this affidavit upon being affirmed in the witness box. These objections were dismissed before the Father gave his evidence in Chief.
The ICL relied upon:
·the Child Impact Report dated 21 January 2022;
·the Family Report dated 3 February 2023; and
·the ICL tender bundle.[82]
[82] Exhibited as I1: ICL’s Tender Bundle.
The Father, Mother, and the Family Consultant were cross-examined. The Mother did not ask any questions, content that all relevant matters had been put to the Father and the Family Consultant by Ms Rebehy. The Father cross-examined the Mother and the Family Consultant.
The Mother presented as somewhat exhausted by the ongoing dispute. She seemed unable to effectively deal with the Father and is overwhelmed by his criticisms of her. Consequently, she had little energy left to continuously push X to spend extended time with the Father.
The Father remained impacted by the perceived injustice of the Mother relocating the children to Suburb J, without repercussion. The ongoing frustration has led him to exhibit rather rigid thinking, and he has little ability to find a collaborative solution to the dispute regarding his time with X. Right to the end of the trial he was highly critical and disparaging of the Mother — the last words of his written submissions were ‘[t]he Respondent has lied, manipulated and controlled the post separation relationship’.[83] This hostility did little to convince the Court that he can communicate effectively with the Mother about major long term issues affecting the children.
[83] Written Submissions of Mr Nagle filed 11 January 2024 (‘Father’s Written Submissions’).
That said, both parents were articulate and advanced their cases well, giving their evidence through the prism of their perceived experiences. Both made some concessions under cross-examination and tried to limit the matters in dispute. I commend them both for taking that approach.
The Family Consultant, Mr H, was an impressive witness who provided a detailed and considered report. Under cross-examination, he appropriately considered his previous opinions and recommendations with regard to new information that he was given, but ultimately, with some adaptation, he maintained the recommendations set out in his Report. I give his evidence significant weight.
I pause here to note that the Father was very critical of the ICL during the trial — particularly in his written submissions. He said that the ICL ‘has shown the inability to be an honest broker between the parties’, has ‘acted as a quasi-defence for the respondent with continual attacks of the Applicant’, and had shown ‘personal bias’ towards him.[84] I reject his criticisms. I found the ICL and her counsel, Ms Rebehy, to be patient, thorough, and objective. They both did all they could to assist the Court to deal with this matter — involving two unrepresented parties — as efficiently and effectively as possible. They assisted the parties to reach substantial agreement about several matters that would have lengthened the trial if they had been left for determination. Ms Rebehy’s questions were put calmly and fairly to both parties — appropriately challenging and testing their positions.
[84] Ibid 1-2.
Much of the Father’s criticism seemed to be pointed at the ICL not focusing on matters that he deemed to be important at trial. This is a misunderstanding of the ICL’s role. The ICL is appointed to assist the Court to reach an outcome that meets the best interests of the children — not the parties. I note what the Full Court said in Lim & Zong [2021] FamCAFC 165:
It is not inconsistent with the independent and professional discharge of an Independent Children’s Lawyer’s obligations for her or him to advocate that a particular course of action adverse to, or inconsistent with, the position of a party, ought be taken by the court;
Whilst in a unique position, the Independent Children’s Lawyer owes the same professional obligations to the Court as does any licenced legal practitioner;
On occasion, the Independent Children’s Lawyer will be in an invidious position, but nonetheless they should be no less courageous, no less firm and no less cogent, in advocating for results or findings;
Inevitably the role of the Independent Children’s Lawyer involves an exercise of professional judgment which may, on occasion, be precarious and difficult;
It is not appropriate for a litigant to endeavour to micro-manage the Independent Children’s Lawyer, or critique every step that they take;
It is certainly not the case that, even if an Independent Children’s Lawyer does make a mistake, the Court will necessarily accede to an application to have them discharged. Significantly more than that is required;
It is inevitable that the high standards of competence which the Court expects of Independent Children’s Lawyers are not always met. Independent Children’s Lawyers are, like anybody, liable to human frailty;
A court should be slow to discharge an Independent Children's Lawyer on the basis of largely unsubstantiated complaints of one of the parties.[85]
[85] Lim & Zong [2021] FamCAFC 165 [22].
It is for the parties to put to the Court matters deemed relevant to their case. They must bring the evidence and undertake cross-examination to best advance their case concept. As was the case here, the ICL’s steely focus is always on the children — devoted to advancing their best interests.
Standard of Proof
I also note briefly, before continuing, that all facts in issue in these proceedings must be proved on the balance of probabilities. A fact in issue is 'proved' if I am reasonably satisfied, on the evidence, that it is more likely than not that the fact existed or occurred in the manner ultimately determined.
The Evidence Act 1995 (Cth) sets out the applicable standard:
140     Civil proceedings: standard of proof
In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject‑matter of the proceeding; and
(c)       the gravity of the matters alleged.[86] (original emphasis)
[86] Evidence Act 1995 (Cth) s 140 (‘EA’).
Dixon J, as he then was, also remarked upon the standard of proof for civil proceedings in Briginshaw v Briginshaw (1938) 60 CLR 336, which remain relevant and authoritative:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.[87]
[87] Briginshaw v Briginshaw (1938) 60 CLR 336 (‘Briginshaw v Briginshaw’).
I must ground my assessment of the children’s best interests in facts, of which I am persuaded, on the balance of probabilities.
Issues for Determination
The remaining issues in dispute were:
·whether there be an order for equal shared parental responsibility or whether the Mother have sole parental responsibility for the children’s medical and education matters;
·whether the Mother and children return to live in the Sydney Metropolitan area (being within 20km radius of the city of Suburb G);
·what time the Father will spend with Y and Z;
·what time the Father will spend with X;
·the changeover location; and
·whether the parties should use My Family Wizard App to communicate.
Issue 1: Should the Mother have sole parental responsibility for medical and educational matters?
The ICL submitted that it is in the children’s best interest for the parents to exercise equal shared parental responsibility, save for the Mother exercising sole parental responsibility for education and medical issues. Both the ICL and Family Consultant expressed concern about the parents’ ability to communicate effectively about these most important matters, so that joint decisions can be made. This is likely to result in conflict. The Mother agreed with the ICL’s proposal.
The Father did not accept that the parties were incapable of child focused communication. He submitted that the Mother is the one that refuses to communicate, and that his alleged inability to do so is ‘a clear misrepresentation’,[88] submitting that it was only his alleged equivocation around X receiving a ‘Deadly Award’ and questions he had during Covid, that were put forward as examples of the parties inability to agree about medical and educational matters. He also expressed concern that the Mother had a history of lying and not providing him information in relation to medical and education issues, and could not be trusted to provide him with such information should the Court make an order for sole parental responsibility.[89]
[88] Trial: oral submissions of the Father on 12 December 2023.
[89] Ibid.
Issue 2: Relocation of the Mother and children closer to the Father’s home
The Father sought an order for the Mother and children to return to the Sydney Metropolitan area, within 20km radius of Suburb G. The Mother opposed this, as she and the children are now fully settled in Suburb J.
In Wagstaff & Wagstaff[2021] FedCFamC2F 507, per Aldridge & Jarrett JJ, the Full Court considered the principles that apply to applications for a primary caring parent to relocate closer to a ‘contact’ parent:
14. In Adamson & Adamson (2014) FLC 93–622, the Full Court said:
66.These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.
15.To this must be added the consideration that orders requiring a parent, as opposed to the children, to live in a particular place are rare. In a well-accepted passage, Bryant CJ and Warnick J said in Sampson and Hartnett (No 10) [2007] FamCA 1365; (2007) FLC 93-350 (“Sampson and Hartnett”):
58.However, we conclude there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare, because:
(i)the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and
(ii) in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent’s choosing.
…
21. In relation to the present issue Kirby J explained it in AMS v AIF:
193.Secondly, it is important to remember that in Australia, whilst the welfare (or best interests) of the child are, by statute, the “paramount” consideration in the exercise of jurisdiction such as was invoked here, they are not the sole consideration. In this respect, the position in this country is different from that in Canada. It more closely conforms to the language of the Convention on the Rights of the Child. Statutory instructions as to the paramountcy that is to be accorded to the child’s welfare or best interests are to be understood as they apply to a child living in Australian society, normally in relationship with both parents and other members of its family. Whilst the legislation considered in this case, and later statutory reforms, give the highest priority to the child’s welfare and best interests, that consideration does not expel every other relevant interest from receiving its due weight. In part, this is because (as the English courts recognised long ago) the enjoyment by parents of their freedoms necessarily impinges on the happiness of the child. But, in part, it is also because legislation such as FLA 1975 and FCA 1975 is enacted to take effect within a society of a particular character whose members enjoy a high measure of personal freedom, diminished only to the extent that the law obliges. (emphasis added)

The Full Court in Sampson & Hartnett (No 10) [2007] FamCA 1365 highlighted the importance of the evidence establishing that the practicalities of life exist in the area to which the parent may be required to move:
74. … Where the court may be ordering the return of a parent to a location in which they have lived for some time, but from which they have moved without the consent of the other party and in circumstances in which existing orders or arrangements for the other parent to spend time with the children will be rendered ineffective, there will usually be arrangements in the original location for the practicalities of life, such as accommodation, schooling and employment if relevant, which can readily be identified by the Court. If there are not, that fact would normally be a relevant consideration.
75. To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move. One would therefore reasonably expect a close analysis of the moving party’s capacity and/or the other parties’ capacity to provide for such practicalities having regard to the orders proposed by the court. It is probably only in the circumstance of significant wealth of both parties that it might reasonably be inferred that the practicalities of life could be met without detailed inquiry.[90] (emphasis added)
[90] Sampson & Hartnett (No 10) [2007] FamCA 1365 [74]-[75].
The ICL supported the Mother’s position to remain in Suburb J, referring to the Family Report:
9. The expert opines that the children are settled and happy in [Suburb J] and recommends that they continue to live with the mother in [Suburb J].[91]
[91] ICL Case Outline (n 9) [9].
The Family Consultant asked the Mother about her thoughts on leaving Suburb J:
44. In the mother’s opinion, the three children enjoy living with her at [Suburb J] and do not wish to move back to Sydney. She tended to view the father’s proposals as being personally motivated and not focused on the children’s best interests.[92]
[92] Family Report (n 5) [44].
The Family Consultant continued, stating:
60.The father’s reasons seemed mainly personal. For instance, he said he misses the children and has very limited opportunity to play a role in their weekly lives from such a distance. He also complained about the travel he needs to do and the cost of petrol, etc, involved in the weekend time. In fact, [Mr Nagle] argued that the other party should be made responsible for all the transport because she is the one who relocated.
61. While [Mr Nagle] realised that the children probably do not wish to return to Sydney, he expected them to readjust without major problems. He said he would readily look after them if [Mr Nagle] remained at [Suburb J]. But this seemed a most unlikely scenario.[93]
[93] Ibid [60]-[61].
The Family Consultant also received the children’s views about their current location:
74. [X] stated a strong wish to remain living at [Suburb J] and said she did not want to return to Sydney.
…
77. [Y’s] comments about the new environment and school were equally positive as [X]’s views.
…
83.Like the older child, [Y] expressed a firm wish to remain at [Suburb J]. While she did not enjoy the travel she seemed accustomed to it. Her main issue with leaving Sydney appeared to be discontinuation of weekend [sports].
…
85. From his varied discussion, it seemed [Z] enjoys life, loves his parents and has no issues in either home.[94]
[94] Ibid [74], [77], [83], [85].
The Father did not produce any evidence or make any real suggestion as to where the Mother and children would live if they were to move closer to his home, nor where the children would attend school, the cost of accommodation and how the Mother could continue to work in her current role, when much of her work is in the Town NN region. His focus seemed to be on the fact that the Mother had been able to afford to purchase a property in Suburb J, and therefore, with sale proceeds in hand, she could purchase a property closer to him. He also suggested that the Mother could work more days in Suburb G and he could assist with the before and after school care.[95]
[95] Father’s Case Outline (n 6) 5.
Issue 3: The Father’s time with the children – including X
The Father’s primary position was that the Mother and children relocate closer to his home and that he spend each alternate Friday after school until Monday 9:00am at school drop off with all three children.[96] If the Mother remains in Suburb J then his time will remain from Friday 5.00pm until 5.00pm Sunday, each alternate weekend.
[96] Ibid.
He proposed that the changeover occur by the Mother dropping the children to his home at the commencement of his time and he returning the children to the Mother’s home at the conclusion of his time.[97]
[97] The Father’s proposal has varied from the Mother doing all the travel to there being a centralised point for changeover such as the Suburb B Service Station. His final position seemed to be that the changeover occur at each other’s homes.
The Mother adopted the ICL’s proposal as confirmed during Ms Rebehy’s final submissions:
5.That [X] spend time with her Father in accordance with [X]’s wishes and as agreed between the parents in writing within no less than 72 hours notice.
6. That [Y] and [Z] spend school term time with their Father as follows:
6.1.During school term time each alternate weekend from 5pm on Friday until 5pm on Sunday;
7.That for the purposes of changeovers 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.
…
Notation:
A.The court notes that the parents agree and support [X] spending time with her father from 10.00am until 5.00pm each alternate Sunday on the same weekend as [Y] and [Z] and in the event that that time is to occur with [X] the Mother shall deliver [X] to the Father at 10.00am at [Suburb B] McDonalds and the Father shall return all three children to the Mother at 5.00pm at [Suburb B] McDonalds.
B.The court further notes that the parents agree and the independent children’s lawyer does not oppose [X] spending overnight time with her father on the same weekend as her siblings in accordance with [X]’s wishes.[98]
[98] Exhibit I4 (n 14).
The Family Consultant noted:
34. Regarding [X]’s relationship with her father, the mother opined she may be “scared” of him, due to his alleged negative comments to the children about her ([Ms Nagle]). She added that the father makes frequent comments to the children about her role in the separation, which in her opinion confuses them, especially the eldest child.
…
37.Ms Nagle opined that [X] is “rebuilding” the relationship with [Mr Nagle] and considered it is occurring in small steps. She favoured the child being permitted to make her own decisions regarding spend time arrangements, predicting she will eventually resume alternate weekends.[99]
[99] Family Report (n 5) [34], [37].
The Father was of the view that clear Orders for his time with X will set boundaries for her and make it clear that it is not for her to dictate how and when she will spend time with him.
The Mother’s concern was that she would have the ongoing responsibility of pressuring X to spend time with the Father, which has not worked in the past and caused conflict and significant issues for X. In her view, X is more likely to want to spend time with the Father if she is not pressured to do so.
Issue 5: The changeover location
In the event that the Mother and the children continue to reside in Suburb J, the ICL and the Mother proposed that the changeover remain at McDonalds, Suburb B. The Father’s evidence on this point was confusing. Under cross-examination he described the McDonalds location as ‘degrading’,[100] and proposed that changeover occur at his home or the Suburb B service station, with the Mother doing most, if not all, the travel as it was her decision to move the children.[101] He then seemed to agree with Suburb B McDonalds if X was also spending time with him, describing a midway point as ‘the worst option’ unless X was spending the same time with him as the other children. Ultimately, he proposed that the Mother drop the children to him at the start of his time, and he return them at the conclusion of his time. I note that the Suburb B McDonalds has been the ordered changeover point since 17 October 2023,[102] and there is no evidence that the changeovers have not been effective at that location.
[100] Trial: oral submissions of the Father 12 December 2023.
[101] Trial: opening submissions of the Father.
[102] Order of Judge Turnbull, in Nagle & Nagle (Federal Circuit and Family Court of Australia Division 2, PAC4392/2021, 17 October 2023) Order 2.
Parenting orders: the Law
This Court must craft and consider the terms of a parenting order with regard to the children’s best interests as a paramount consideration.[103] I am not bound by the terms proposed by the parties and — subject to the pathway set out in the Family Law Act 1975 (Cth) (‘the Act’) Part VII, and particularly ss 61DA and 61DAB — may create parenting orders as I think are proper in the circumstances.[104] What, however, guides the assessment of the children’s best interests? How, once their best interests are ascertained, does the Act ensure that parenting orders reflect them as a paramount consideration?
[103] Family Law Act1975 (Cth) s 60CA (‘FLA’).
[104] Ibid s 65D(1).
The objects of Part VII of the Act, and the principles underlying these objects, indicate the Act’s aspirations with respect to the children’s best interests. Crucially, and as touched upon at trial, the underlying principles reflect and seek to enforce children’s human rights.[105] Part VII of the Act, to give effect to a child or children’s best interests, carves a legislative pathway. The pathway has several substantive stepping-stones which may be legitimately and properly followed in various forms.[106] I will follow the path set out in MRR & GR (2010) 240 CLR 461, which remains authoritative.[107]
[105] Ibid s 60B(1),(2),(4), noting the expression of responsibility at subs (1), the expression of the child or children’s rights at subs (2), and the additional object at subs (4) to give effect to the Convention on the Rights of the Child.
[106] Withers & Russell [2016] FamCA 793 [315]-[318] at which Watts J confirms that there is no preferred approach, there being ‘more than one suggested pathway through the legislature’.
[107] MRR & GR (2010) 240 CLR 461 [6]-[9] (French CJ, Gummow, Hayne, Kiefel and Bell JJ) (‘MRR & GR’).
The children’s best interests: the s 60CC factors
The Act sets out two mandatory considerations at s 60CC(2). It is noted that s 60CC(2)(b) is to be given greater weight than s 60CC(2)(a). This means that the need to protect a child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect, or family violence outweighs the benefit to a child having a meaningful relationship with both of their parents. The Act also includes a number of additional considerations under s 60CC(3), which will be considered insofar as they are relevant to this matter.
Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child's parents
The Act does not define ‘meaningful’. Characterising a meaningful relationship between a child and their parent is, necessarily, an individualised assessment.
The Full Court in McCall & Clark [2009] FamCAFC 92 endorsed the explanation of ‘meaningful relationship’ as given by Brown J in Mazorski & Albright [2007] FamCA 520:
What these definitions convey is that "meaningful", when used in the context of "meaningful relationship", is synonymous with "significant" which, in turn, is generally used as a synonym for "important" or "of consequence". I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.[108]
[108] Mazorski & Albright [2007] FamCA 520 [26]; McCall & Clark [2009] FamCAFC 92 [115].
A ‘meaningful relationship’ does not, however, have to be an ‘optimal relationship’. Kay J’s remarks in Godfrey & Sanders [2007] FamCA 102 more fully state this position:
It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their Father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.[109]
[109] Godfrey & Sanders [2007] FamCA 102 [36].
The Family Report describes the parents and their relationship to the children:
86. Although the parties have difficulty finding common ground in some areas, they each impress as competent, genuinely motivated parents. Notwithstanding [X]’s current issue with [Mr Nagle], the three children share positive parental attachments.[110]
[110] Family Report (n 5) [86].
The children clearly have relationships with their parents that are deeply meaningful to them.
Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Both parties made allegations of family violence.
During the interview with the Family Consultant, the Father spoke of instances where the Mother perpetrated acts of physical violence against him, including hitting and punching him and, on one occasion, throwing an object at him.[111] The Father explained he had not been physically injured by any of the alleged acts but believed them to constitute family violence under certain definitions.[112] The allegations of physical violence were entirely denied by the Mother during her interview. The Mother stated there had not been any physical violence from either party,[113] but that she had been subject to verbal abuse and intimidation, particularly post separation.[114]
[111] Ibid [20].
[112] Ibid.
[113] Ibid [21].
[114] Mother’s November Affidavit (n 26) [13].
During the Family Consultant’s assessment, at no time did either parent express fear of the other and no allegations were made concerning any violence involving the children.[115]
[115] Family Report (n 5) [22].
It is my task to ensure that the ultimate parenting orders do not place the children at an unacceptable risk of harm due to family violence, abuse, or neglect, or exposure to the same. I may include orders as I consider necessary to achieve this end. Protecting a child from harm (or any unacceptable risk thereof) is intertwined with the paramountcy principle, as evident in s 60CC(2)(b) of the Act. This includes any risk of family violence, abuse, or neglect.[116]
[116] FLA (n 103) ss 4AB (definition of ‘family violence’), 4 (definition of ‘abuse’), noting that the Act does not define ‘neglect’ for the purpose of s.60CC(2)(b), nor does it define ‘serious neglect’ for the purpose of sub-s(d) of the definition of ‘abuse’.
The question of unacceptable risk is aimed at ensuring that the terms of an order are consistent with a child’s best interests, in that, to the extent possible and foreseeable, the orders do not place them at risk of harm.
The assessment of whether a risk is ‘unacceptable’ does not require a court exercising jurisdiction under Part VII ‘to resolve in a definitive way the disputed allegation … as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence’.[117] The Full Court in Isles & Nelissen clarified that unacceptable risk is also not to be measured according to the civil standard of proof — on the balance of probabilities.[118] A trial judge may find past allegations proven on the balance of probabilities but find no unacceptable risk to a child. On the other hand, there may be no finding of past wrongdoing on the balance of probabilities, but there may be a positive finding of unacceptable risk.[119] It remains that any risk must be grounded on the evidence, which then informs a trial judge’s exercise of their discretion under s 65D by reference to the child’s best interests:
The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant & Clayton (2019) FLC 93-924 at [52] is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment …, though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result …. The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s.60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.[120]
[117] M v M (1998) 166 CLR 69, 76 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ); Bant & Clayton [2019] FamCAFC 198 [38]-[41].
[118] Isles & Nelissen [2022] FedCFamC1A 97 [46]-[51], [86] (‘Isles & Nelissen’); Briginshaw v Briginshaw (n 87) 361-362 (Dixon J); EA (n 86) s 140.
[119] Isles & Nelissen (n 118) [83].
[120] Ibid [85].
The question before me is, therefore, whether the children will, in the future (and on the basis of the evidence, including any fact or past conduct proven on the balance of probabilities), be at risk of exposure to family violence, abuse, or neglect, or some other potentially harmful conduct and whether that risk is ‘unacceptable’.[121] The enquiry involves ‘a real and substantial consideration of whether or not, and why or why not, particular facts raise an unacceptable risk’.[122] The parenting orders ultimately made, in those circumstances and if appropriate, can include measures to mitigate the type of risk as characterised.
[121] M v M (n 117) 77-78, at which their Honour state that ultimately, the Court’s task is to assess the magnitude of risk and that ‘[a]fter all, in deciding what is in the best interests of a child’ a court of this jurisdiction ‘is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare’ , and that ‘[t]he existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access’. I note also the first instance decision of McGuire J in Isles & Nellison [2021] FedCFamC1F 295, in which at [267] his Honour explains the ‘separate and predictive’ inquiry, based off “possibilities” in a prospective sense’, affirmed by the Full Court on appeal.
[122] Murphy & Murphy [2007] FamCA 795 [318]-[319].
Neither party claimed that the other will place the children at an unacceptable risk of harm. The Mother was of the view that the Father can make X feel ‘scared’ at times, particularly when he presented with hostility at changeover and blasted the horn ‘loud and long’.[123] She did accept, however, that the Father had been calmer on more recent occasions.[124] The parties have already agreed to several injunctive and regulative orders,[125] and I am satisfied that those Orders are sufficient to regulate any poor parental behaviour in the presence of the children.
[123] Trial: cross-examination of the Mother.
[124] Ibid.
[125] Orders of 14 September 2024 (n 10) [4]-[5].

Notwithstanding this good communication, the animosity built in the years following separation still permeates the parties’ relationship as is clear from the tone of the Father’s Written Submissions.[168]
[168] See paragraph 72 of these Reasons.
The Mother finds it challenging to deal with the Father about parenting matters. Her trust in him has never recovered from his hostility towards her post separation, including the welfare check he instigated in mid-2019,[169] and his negative comments about her to X. She confirmed her view in her most recent affidavit:
27.It remains constantly difficult to commincate with [Mr Nagle] in order for effective and timely decision making in relation to having the children's needs met. I am constantly faced with [Mr Nagle] intimidating, blaming or criticising me and/or others for situations instead of staying focused on conversations at hand about the children and due to these ongoing long term difficulties, I am seeking orders for sole parental responsibility.[170]
[169] Exhibit I1 (n 158) 3-9.
[170] Mother’s Trial Affidavit (n 15) [27].
The level of parental conflict and poor communication is unacceptable. The Orders I make will strictly regulate the parenting arrangements and the method by which the parties communicate with each other to lessen parental conflict. Although the Mother was not enthusiastic about using the My Family Wizard App, in my view that is a means of communication that will lessen the opportunity for conflict. The parties can of course agree to another method of communication such as text or email, however, the mentioned App will be the default.
I accept that the Father is capable of good communication with the Mother. Unfortunately, those good moments have been more the exception than the rule. I hold concern about the parties’ ability to communicate and reach decisions about educational and medical matters and consequently, I am inclined to leave the ultimate decision making in relation to such matters to the Mother.
Section 60CC(3)(j): any family violence involving the child or a member of the child’s family
While the Father alleged the Mother perpetrated physical violence during their relationship, neither party alleged any violence towards the children or involving the children. The Mother denied all allegations made by the Father.[171] The Mother alleged that she has been subject to verbal abuse and denigration. No family violence orders or police orders have been made in relation to the allegations. Neither party alleges that the other presents as an unacceptable risk to the children, and the Father accepts that the Mother should remain their primary carer.
Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account: the nature of the order; the circumstances in which the order was made; any evidence admitted in proceedings for the order; any findings made by the Court in, or in proceedings for, the order; any other relevant matter.
[171] See paragraphs 109 to 110 of these Reasons.
This factor is not relevant.
Section 60CC(3)(l): whether it would be preferable to make orders that would be least likely to lead to the institution of further proceedings in relation to the child
The children have been subject to their parents’ conflict since separation in 2018 and have been subject to this litigation since 2021. The impact of the separation has been particularly difficult for X. It is vital that the children now be allowed to enjoy the remainder of their childhood without the spectre of litigation hanging over their heads. The Orders I craft will do all they can to remove the possibility of further litigation.
Section 60CC(3)(m): Any other fact or circumstance that the Court thinks is relevant.
All relevant matters have been covered elsewhere in these Reasons.
Section 60CC(6): right to enjoy Aboriginal or Torres Strait Islander culture including the right to maintain a connection with that culture and to have the support, opportunity and encouragement necessary to explore the full extent of that culture, consistent with the child’s age an developmental level and the child’s views and to develop a positive appreciation of that culture.
The Father identifies as Aboriginal and so the children are of Aboriginal descent.[172] The eldest child, X, has been noted of being proud of her Heritage, with the Father encouraging her to explore the culture.[173]
[172] CIR (n 130) [3].
[173] Trial: cross-examination of the Father.
Having heard the Mother under cross-examination, I am satisfied that she will promote the children’s engagement in Aboriginal traditions, if they so desire.
Parental responsibility
Parental responsibility means all the duties, powers, responsibilities, and authority which, by law, parents have in relation to their children.[174] A parent does not have rights over their children — they have responsibilities to love and nurture their children and serve their children’s best interests. Upon separation, parents are not, by virtue of their changed relationship with one another, absolved from their responsibilities to maintain and care for their children.[175]
[174] FLA (n 103) s 61B.
[175] Ibid s 61C.
Parental responsibility can, however, be apportioned to suit a post separation life.[176] It is important that, wherever possible, separated parents cooperate to promote their child or children’s best interests, as well as to help each other with the responsibilities and challenges of parenting. Where equal shared parental responsibility is ordered the Act requires major long-term decisions be jointly made.[177] I note, however, a possible anomaly within s 65DAC of the Act — namely, subsections (2) and (3)(b). The need to come to joint decisions is, from the language of the provision, non-negotiable. Yet, the section also requires consultation in relation to the issue and the ‘genuine effort’ of all parties involved to come to a joint decision on that issue. It is entirely possible that all parties involved may make a ‘genuine effort’ to make a joint decision but, nevertheless, fail to do so. They may simultaneously comply with sub-section (3) and breach sub-section (2) — a problem for which s 65DAC appears to offer no resolution.
Presumption of equal shared parental responsibility
[176] Goode & Goode [2006] FamCA 1346 [39].
[177] FLA (n 103) s 65DAC(2).
The presumption — legal principles and operation
The Act requires this Court to presume that it is in the children’s best interests for their parents to be equally responsible for major decisions affecting their long-term care and welfare. Section 61DA of the Act sets out the applicability of that presumption:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
…
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
…
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. (emphasis added)
The operation of the presumption of equal shared parental responsibility is significant. The line of authority from the Full Court suggests that, if the presumption remains in place, equal shared parental responsibility must be ordered.[178] Section 61DA makes clear, however, that this outcome may not always be appropriate.
[178] Koyroyshs & Koyroyshs [2020] FamCA 626, [84] (Harper J), at which his Honour cites Marvel & Marvel (No 2) [2010] FamCAFC 101 and states that ‘if the presumption applies, an order for equal shared parental responsibility will generally be made, thus displacing s 61C and triggering consideration of the provisions of s 65DAA’, and further stated his own view that trial judges should order equal shared parental responsibility when the presumption applies.
Sections 61DA(2) and 61DA(4) provide for two ways by which equal shared parental responsibility may not be ordered, as are relevant to the case at hand.
Section 61DA(2) provides that, from the outset, the presumption will not apply if there are reasonable grounds to believe that a parent (or someone who resides with a parent) has engaged in child abuse or family violence. The standard set out in s 61DA(2) is important. It does not require proof of the fact that, on the balance of probabilities, child abuse or family violence took place. It requires only that the evidence provides reasonable grounds to believe that a person has engaged in child abuse or family violence. The wording of subsection (2) indicates a legislative intention to, in limited circumstances, prevent the application of the presumption notwithstanding that there may be no evidentiary finding of child abuse or family violence. Any actual finding of child abuse or family violence itself activates s 61DA(2), at which point there becomes no need to explore whether or not the presumption applies. Once s 61DA(2) is enlivened, whether through reasonable grounds of belief or a factual finding on the balance of probabilities, the presumption is excluded as a matter of law. In those circumstances there is no discretionary power by which the presumption may be revived.[179]
[179] Ibid [85].
The enquiry as to an order for parental responsibility always, with the exception of s 61DA(2) and 61DA(3) (noting that subsection (3) is irrelevant in this case), commences with the presumption that equal shared parental responsibility is in the child or children’s best interests. This is not to say that the presumption, once in place, is set in stone.
Section 61DA(4) accounts for instances in which, although the presumption applies from the outset of the enquiry, an order for equal shared parental responsibility may nevertheless not serve the child or children’s best interests. If s 61DA(2) applies, s 61DA(4) never comes into operation.[180] Subsection (4) provides for the presumption to be rebutted — namely, for it to be ousted from consideration, despite the fact that it was initially applicable. To rebut the presumption a judge must determine, on the balance of probabilities, that it would not be in the children’s best interests to order equal shared parental responsibility. The grounds upon which the presumption may be rebutted are significantly broader than those given in s 61DA(2) of the Act. A court must, therefore, reach ‘a level of satisfaction on the evidence … that it would not be in the interests of the child for [the presumption] to apply’ and must give ‘explicit and cogent reasons why the presumption should be rebutted’.[181]
Applicability of the presumption of equal shared parental responsibility in this case – should the mother have the sole responsibility for the major long-term issues of health and education?
[180] Boyce & Boyce [2015] FamCAFC 60, [21]-[22] (Bryant CJ, Ryan and Kent JJ).
[181] Dundas & Blake [2013] FamCAFC 133, [57], [61] (Bryant CJ, May and Ainslie-Wallace JJ). See also Withers & Russell (n 106), [426]-[428], in which the presumption was rebutted on the basis of the parties’ ongoing disagreements about major long-term issues, to the extent that an order for equal shared parental responsibility would not be in the best interests of the children subject to those proceedings.
The parties agree that there should be an order for equal shared parental responsibility, but the Mother wants to carve out and hold sole parental responsibility for educational and medical matters relating to the children. The parties raise questions of family violence, but neither party explored the issue at trial, as neither argued that the other posed an unacceptable risk to the children. As such I am not satisfied that the evidence provides reasonable grounds for the Court to believe that a person has engaged in child abuse or family violence, and therefore the presumption has not been rebutted.
Even if the presumption was rebutted, it does not follow that I no longer have jurisdiction to make an order for equal shared parental responsibility. Warnick J in Robertson & Sento [2009] FamCAFC 49, though in dissent, plainly sets out the operation of s 61DA(2) by reference to the words therein:
41.[s 61DA(2)] does not say that, if there are reasonable grounds to believe one of the nominated circumstances exists, equal shared parental responsibility, qualified or unqualified, shall not be ordered, but merely that the presumption does not apply (at all).[182]
[182] Robertson & Sento [2009] FamCAFC 49, [41]. His Honour dissented on limited grounds; I have extracted his reasoning because his assessment is consistent with the wording of s 61DA(2), and with the concept of the presumption as a legal mechanism which does not prevent an order being made in pursuance of s 60CA.
This Court remains bound under s 60CA to consider the children’s best interests as a paramount consideration in making any parenting order. If the evidence suggests that it is in the children’s best interests for there to be an order for equal shared parental responsibility, then I may make that determination and craft an order accordingly.
As stated, equal shared parental responsibility requires a decision in relation to a major long-term issue to be made jointly. Further, the parties are obliged to consult the other person in relation to the decision to be made about that issue and to make a genuine effort to come to a joint decision about that issue.[183] The Mother is of the view that she is unable to meet the requirements of the legislation in relation to medical and educational matters. The ICL supports her position.
[183] S65DAC(3).
As set out earlier in these Reasons,[184] the Mother annexed to her affidavit several email exchanges with the Father to demonstrate the poor level of communication between them.
[184] See paragraph 168 of these Reasons.
The Father shared the Mother’s view regarding their poor level of communication:
36.Communication between the Respondant Mother and I has been fractured and non effective. I will send commincation via email which frequently does not get responded to. I have attempted to call the respondant with no answer and text messages to do get responded to either. The only communication that is effective is when the Respondant wants to change the Interim order arrangement taking the chidlren on lavish extended holidays such as [Region GG]. I entertain her requests and make adjustments, yet when I need to slightly amend the care arrangement I receive no response.[185]
[185] Father’s Trial Affidavit (n 18) [36].
In his written submissions, he re-emphasised the point:
The Respondent’s behaviours since the court matter have been better but still need a lot of work to co-parent the children into the future.[186]
[186] Father’s Written Submissions (n 83) 5.
He believes that if he does not have an equal role in making decisions for the children regarding medical and educational matters, then he will not receive important information regarding such matters:
It is the case that the mother ‘claims’ she cannot communicate with the Applicant but also refuses to engage in communication creating a high conflict parental relationship. The Respondent uses the children to communicate medical and school issues, contrary to court orders. Why should the children be punished for the Respondents behaviour towards the Applicant with sharing parenting information?
The mother made no attempt to communicate that she was moving over two hours away, moving schools, moving sports and seeking treatment for [X].
In the respondent’s evidence she said that she would refuse to communicate if she felt threatened. This included initiating communication. This is the pivotal point of the matter. The Respondent controls communication. I do not believe a prescriptive order will assit communication, rather the respondent will use it to determine communication.
Further supported by fictitious claims when giving evidence, which she sort leave to provide evidence but did not provide the court any evidence. Only old out of context conversations mostly about money misrepresented for this matter.
Thus, making the idea of sole parental responsibility a lever of power granted to the respondent when she has continuously displayed, she will lie and fail to meet the orders.[187]
[187] Ibid 4.
His view ignores the ICL’s proposed Order that requires the Mother to provide such detail and seek his input — with the final decision left to her:
3.That in exercising sole parental responsibility in accordance with Order 2 the Mother shall:
3.1 Inform the Father of any of any long term decision regarding the children’s education and 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
3.2 Consider the Father’s views and then;
3.3 Inform the Father of any decision made by her within 7 days of such a decision being made.[188]
[188] Exhibit I4 (n 14).
The Father, conversely, stated in his Evidence in Chief, that as far as the Mother’s choice of High School for X, he trusted her to make such decisions in the children’s best interests. He just wants to be informed.[189]
[189] Trial: examination-in-chief of the Father.
The major long-term issues that are likely to require more regular joint decision making are education and medical matters. The Mother accepts that she has not always informed the Father of all of Z and X’s psychological appointments, because of the level of conflict. The Family Consultant agreed with the ICL under cross-examination that it was vital that such decisions can be made quickly without conflict. I hold concern that neither requirement is likely with the current state of the parties’ level of communication and general negative view of the other. I also note that the Father’s involvement with the children’s school and psychologist has led to confrontation and complaints.[190]
[190] Father’s Trial Affidavit (n 18) [38]-[44].
Z and X have been involved with health professionals since separation and it is likely that decisions about ongoing therapy will need to be made. It is also likely — particularly in relation to Z — that there will need to be decisions made in relation to educational matters. The Father’s animosity towards the Mother is evident in his written submissions and leaves me with little confidence that he can effectively communicate with her about these matters, such that timely decisions can be made, free of conflict. He should certainly be informed and be asked to contribute to any decision, however, to ensure a decision is reached in a timely manner without conflict, the final decision should be left to the Mother. I will adopt the Orders as proposed by the ICL on this issue.
Equal time or substantial and significant time?
In this case there will be an order that the parents have equal shared parental responsibility in relation to all major long-term decisions, save for medical and educational matters.
Where there is an order for equal shared parental responsibility, I must consider whether there should be an order for an equal time arrangement or, alternatively, a substantial and significant time arrangement. As explained by the High Court in MRR & GR, either arrangement must be reasonably practicable and in the children’s best interests if it is to be ordered.[191] If ordering equal time is in the children’s best interests and otherwise reasonably practicable then I must consider making an order to provide him with equal time arrangements. If I do not order equal time, I must consider whether the children should spend substantial and significant time with one of his parents. I will undertake this assessment, again, with reference to the children’s best interests and whether spending substantial and significant time with both parents is reasonably practicable.[192]
[191] MRR & GR (n 107) [37]; FLA (n 103) s 65DAA.
[192] FLA (n 103) s 65DAA(2), 65DAA(5).

When considering the question of reasonable practicability, I am required to have regard to:
(a)how far apart the parents live from each other; and
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the Court considers relevant.[193]
[193] Ibid s 65DAA(5).
As for significant and substantial time, the Act states:
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)       the time the child spends with the parent includes both:
(i)        days that fall on weekends and holidays; and
(ii)       days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i)        the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a Court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Neither party proposes equal time during school terms. The Father proposes a substantial time arrangement (Friday until Monday alternate weekends) if the Mother and children live in the Suburb G region. I am of the view that the Mother and children should remain in Suburb J. Given the distance between the parties and the restrictions of school and employment obligations, such arrangements during school terms are not practicable, nor in the children’s best interest. I note that Y and Z’s holiday periods will be shared.
Conclusion
I am satisfied that the children’s best interests are met by making Orders that largely accord with those proposed by the ICL. Those Orders ensure that the children maintain their existing stable arrangement and that Y and Z have regular, quality time with the Father. The children are well settled in Suburb J and it is not in their best interest to move them back to the Suburb G area.
The Father’s position that X will benefit from having a framework for her time with the Father is not without merit. That way, X would have clear knowledge of the time with her Father that is expected. X has complied with the longer day time orders, however, she is still reluctant to extend the time to overnight periods. The Father agreed under cross-examination that the Mother has encouraged her to spend more time with him than she does, but to no avail.
The Father would likely abide by X’s views about spending time with him, but believes that she will spend greater time with him if she knows that there is an Order requiring her to do so:
Is giving the decision to the child in the best interest of the child? Or does it make the ICL feel good? It is hurting my daughter. Evident where the Respondent could not even drag her out of the vehicle to stay with me, omitted in cross examination. [X] loves her dad, a framework that supports her instead of making her choose between her mother’s happiness and her father’s. A massive responsibility to put on a little girl. The court should make an order to support [X].
[X] has the right to have a meaningful relationship with her father and a cohesive family unit of children, sharing experiences and values which both parents can provide.[194]
[194] Father’s Written Submissions (n 83) 5.
The Family Consultant, however, viewed such an approach as counterproductive, opining that X should not be coaxed or forced. He suggested to the Father while under cross-examination:
Keep in mind that since my report which is now 9 months ago or thereabouts there has been some progress – the orders that the court made more recently and I have heard your [the Father’s] account and the mother’s account [about] [X]’s Sunday’s with you [the Father] and it gives me hope that [X] may in fact be able to make the decision to start spending some overnight time with you [the Father] and I would anticipate that if you [The Father] continue your patient and very appropriate behaviour with her when she comes to see you [the Father] that once she does spend some overnight in fact there might be more periods and she may be able then to join her siblings in spending more regularly with you [the Father] on an overnight basis.[195]
[195] Trial: cross-examination of the Family Consultant.
The Family Consultant did, however, qualify his position when I asked him the question at the conclusion of the Father’s cross-examination, mainly whether it would be in her interests to maintain an order for her daytime contact on Sunday’s, but not mandate overnight time. The Family Consultant responded:
Having the heard of the success of the most recent orders which were not in place when I did the assessment I would likely change my recommendation today to say yes, [X] should be given the final decision as to the overnight contact – I would be encouraged by her compliance with these orders and I’d see nothing wrong with an order that yes she is to spend the Sunday’s with the Father – at that frequency as it occurs now as an ongoing basis and with the addition that on each occasion that she be given the opportunity to stay overnight if she selects to do so – and I think that may in fact be helpful to [X] as it gives her most scaffolding regarding relationships with the Father and the eventual overnight contact.[196]
[196] Ibid.
I agree with the Family Consultant that the existing Order for X’s Sunday time should remain. This time has seemingly occurred without incident and I conclude that making that Order was a successful advance. This provides a platform for X to then volunteer to spend extended time in the Father’s care. I also intend to make Orders regulating X’s time with the Father on special occasions such as Father’s day, birthday’s and Christmas Day — although I will require the parties to respect her views as to whether or not that time includes overnight periods.
I do however conclude that to make an Order mandating X’s overnight time with the Father is to invite non-compliance, continued mistrust, and conflict. It is time for this to end. X’s views need to be respected. A lessening of pressure for her to spend extended time with the Father is more likely to lead to a positive result than obligating her to do so. The Family Consultant was somewhat optimistic that X would soon express a desire to spend overnight time with the Father because she had recently hinted to him that could occur. He emphasised, however, that the Father must continue to exhibit patience and understanding. I accept the Family Consultant’s opinion in this regard.
The ICL did propose that the Order stipulate that 72 hour’s notice be given for any time X will spend with the Father. I decline to order that stipulation. X may spontaneously want to spend time with the Father and the Order should not prevent that from being allowed to occur.
The Independent Children’s Lawyer’s Costs
The remaining issue is whether either or both parties should contribute towards the ICL’s costs. The ICL sought the following Order:
That unless deemed exempt by the Legal Aid Commission or otherwise agreed by Legal Aid, both parties shall pay one half the total cost of the appointment of the Independent Children’s Lawyer being $16,325.17 to the Legal Aid Commission within 6 months of the date of the making of final orders.[197]
[197] Exhibit I4 (n 14).
Foster J considered the law relating to an application by an ICL for costs in Theodore & Theodore (No. 3) [2021] FamCA 452:
5.The law as to costs is well settled. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that, subject to certain qualifications, each party to proceedings shall bear his or her own costs.
6.Section 117(2) provides that if the Court is of the opinion that there are circumstances justifying it in doing so, the Court may make such order as to costs as the Court considers just.
7.The relevant considerations in relation to an order for costs are set out in s 117(2A).
8.The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section. They are the following:
a.        The financial circumstances of each of the parties to the proceedings;
b.        Whether any party has legal aid and the terms of any grant of aid;
c.The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answers, questions, admissions of facts, production of documents and similar matters;
d.Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;
e.Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
f.Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
g.        Such other matters as the Court considers relevant.
9. Section 117(3) provides:
3.To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.
10. Section 117(4) provides:
4.However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
a.a party to the proceedings has received legal aid in respect of the proceedings; or
b.the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.
11. Section 117(5) provides:
5.In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children’s lawyer has been appointed, the court must disregard the fact that the independent children’s lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.
12.A question arises as to the actual meaning of the legislative intent for the Court to “disregard the legal aid funding” of the Independent Children’s Lawyer, because that terminology is susceptible to ambiguity.
13.As opined by Austin J in Gahen & Gahen (No 2) [2013] FamCA 936, it could conceivably mean either:
a.The Independent Children's Lawyer should be presumed to be unfunded, so as to generally incline the Court to order the parties’ contribution to the Independent Children's Lawyer’s costs; or
b.The Court should not be swayed by either the presumed ampleness or scarcity of the Independent Children's Lawyer’s legal aid funding when determining whether to order the parties’ contribution to the Independent Children’s Lawyer’s costs.
14.In De Roma & De Roma [2013] FamCA 566 Watts J explained why the former is the preferred connotation, since the purposes of the legislative provision was to protect the public purse.
15.The threshold presumption as to each party bearing their own costs has no application to the Independent Children’s Lawyer, who is not a party.
16.The law is well settled, however, that there is power under the section, subject to other statutory provisions referred to below, to make orders for or against the Independent Children’s Lawyer and the Court may make such order as to costs of the Independent Children’s Lawyer and in such proportions in relation to each of the parties as the Court considers just: (De Roma & De Roma (supra)).[198]
[198] Theodore & Theodore (No. 3) [2021] FamCA 452 [5] – [15].
Neither party submitted that they were at any stage legally aided and that the ICL has no right apply for costs.[199] They both submitted, however, that they will suffer hardship if they are required to pay any part of the ICL’s costs and that there are no circumstances justifying an order for costs.
[199] It is noted that an order pursuant to s 102NA does not meet the exception at s 117(4)(a); Legal Aid ACT & Westwell [2021] FamCAFC 50.
I have considered all the matters set out above, but the most relevant factor for the Court to consider is the parties’ financial circumstances. Unfortunately, neither the Mother nor the Father filed Financial Statements evidencing their financial circumstances as required by my Orders of 30 November 2023[200] and 12 December 2023.[201]
[200] Order of J Turnbull in Nagle & Nagle (Federal Circuit and Family Court of Australia Division 2, PAC4392/2021, 30 November 2023) Order 3.
[201] Order of J Turnbull in Nagle & Nagle (Federal Circuit and Family Court of Australia Division 2, PAC4392/2021, 12 December 2023) Order 3.
The ICL, however, conceded during oral submission that neither party was wealthy and suggested that, if the Court makes a costs order, that they could each apply to the commission for a waiver.
The parenting Orders I have made will result in both parties incurring significant travel costs. I also note that the Father owes the Mother a significant amount of child support. I am concerned that any further financial obligation on the parties will significantly impact the parties and indirectly, the children. As such, I am satisfied that an order for either party to pay the ICL’s costs will cause them hardship. The ICL’s application for costs will be dismissed.
I will make the Orders set out at the start of these Reasons, confident that they are in the children’s best interests.

I certify that the preceding two hundred and nineteen (219) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull.
Associate:
Dated: 15 May 2024

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 M v M (1998) 166 CLR 69 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

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