FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nally & Nally [2024] FedCFamC2F 669
File number(s): HBC 245 of 2023 Judgment of: JUDGE TAGLIERI Date of judgment: 29 May 2024 Catchwords: FAMILY LAW – parenting – discrete issue – all outstanding issues resolved by consent or on a final basis except watchlist and international travel orders – where the father holds concerns of the mother absconding with the children to Country B – travel to non-Hague Convention counties – where the mother is a Country B citizen and an Australian permanent resident – risk that children may be retained outside Australia outweighs benefits of travel Legislation: Family Law Act 1975 (Cth)
Hague Convention on the Civil Aspects of International Child Abduction (25 October 1980)
Cases cited: Carter & Wilson [2023] FedCFamC1A 9
Harshani & Darnith [2019] FamCAFC 213
Huda & Yasin [2023] FedCFamC2F 1344
Hyde & Minhas [2022] FedCFamC1F 758
Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729
Rice & Asplund (1979) FLC 90-725
Division: Division 2 Family Law Number of paragraphs: 80 Date of last submission/s: 26 April 2024 Date of hearing: 18 April 2024 Place: Hobart Solicitor for the Applicant: Ms Eddington, Ogilvie Jennings Counsel for the Respondent: Mrs Mooney SC Solicitor for the Respondent: McVeity Dean Lawyers The Independent Children's Lawyer: Ms Bassett, Walsh Day Mihal Bassett ORDERS
HBC 245 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR NALLY
Applicant
AND: MS NALLY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
3 JUNE 2024
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged and extant applications dismissed.
Passports
2.That the children’s passports be retained by the Judicial Registrar of the Federal Circuit and Family Court of Australia and held at the City C Registry of that Court and are not to be released without an Order of the Court or express written agreement of both parties.
Watch List
3.The parties are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children from the Commonwealth of Australia unless otherwise agreed to between the parties in writing or further Court Order and it is hereby requested that the Australian Federal Police give effect to this Order by placing the names of the said children on the Family Law Watch List at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until the Court Orders their removal.
BY CONSENT THE COURT ORDERS THAT:
4.Mr Nally (“the father”) and Ms Nally (“the mother”) (collectively “the parents”) retain equal shared parental responsibility for the children X, born in 2008 and Y born in 2016 (collectively, “the children”).
5.The parents will ensure that the children attend the D Medical Centre for medical treatment except in the case of an emergency.
6.The parents do all things necessary to follow the recommendations of the children’s treating medical practitioners and/or allied health professionals…
Continue reading Nally & Nally
Sign in free to access the full text
- AGLC
- Nally & Nally [2024] FedCFamC2F 669
- Case
- [2024] FedCFamC2F 669
- Decision Date
CaseChat Overview and Summary
The court examined the risk that the children may be retained outside Australia against the potential benefits of international travel. It found that the risk of the children being retained overseas outweighed any benefits of travel. Consequently, the court ordered that the children's passports be retained by the Judicial Registrar of the Federal Circuit and Family Court of Australia, to be released only by court order or with the express written agreement of both parties. The court also restrained the parties from removing the children from Australia without prior written agreement or a court order, requesting the Australian Federal Police to place the children’s names on the Family Law Watch List.
The court made several orders regarding the children's living arrangements, medical treatment, and communication between the parents and children. The parents were directed to retain equal shared parental responsibility for the children and to ensure they attended medical appointments and followed medical advice. The court detailed a comprehensive schedule for the children's time with each parent, including special occasions and holiday arrangements. The court also imposed restrictions on the parents' communication and behaviour towards each other in the presence of the children, emphasising the importance of positive co-parenting. The Independent Children's Lawyer's appointment was set to expire, and interstate travel was allowed under specific conditions.
Orders
Orders of the court
HBC 245 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR NALLY
Applicant
AND:
MS NALLY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
3 JUNE 2024
THE COURT ORDERS THAT:
1. All previous parenting orders are discharged and extant applications dismissed.
Passports
2. That the children’s passports be retained by the Judicial Registrar of the Federal Circuit and Family Court of Australia and held at the City C Registry of that Court and are not to be released without an Order of the Court or express written agreement of both parties.
Watch List
3. The parties are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children from the Commonwealth of Australia unless otherwise agreed to between the parties in writing or further Court Order and it is hereby requested that the Australian Federal Police give effect to this Order by placing the names of the said children on the Family Law Watch List at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until the Court Orders their removal.
BY CONSENT THE COURT ORDERS THAT:
4. Mr Nally (“the father”) and Ms Nally (“the mother”) (collectively “the parents”) retain equal shared parental responsibility for the children X, born in 2008 and Y born in 2016 (collectively, “the children”).
5. The parents will ensure that the children attend the D Medical Centre for medical treatment except in the case of an emergency.
6. The parents do all things necessary to follow the recommendations of the children’s treating medical practitioners and/or allied health professionals or school counsellor.
7. The parents do all things necessary for X to attend on a psychologist at E Psychology, Town F, or another psychology provider as agreed in writing between the parties, including obtain a mental health plan from X’s General Practitioner, at the parties joint expense.
Live with and spend time with
8. The children live with and spend time with their parents as follows:
(a) With the father from Monday after school (or 9:00am on a non-school day) until Wednesday before school (or 9:00am on a non-school day);
(b) With the mother from Wednesday after school (or 9:00am on a non-school day) until Friday before school (or 9:00am on a non-school day);
(c) With the father from Friday after school (or 9:00am on a non-school day) until Wednesday before school (or 9:00am on a non-school day);
(d) With the mother from Wednesday after school (or 9:00am on a non-school day) until Monday before school (or 9:00am on a non-school day);
(e) From 12:00 noon on 26 December 2023 to 12:00 noon 2 January 2024 with the mother; and
(f) At such further and other times as agreed in writing by the parents.
9. The children communicate with the parent they are not otherwise spending time with via FaceTime as follows:
(a) With the mother on the Sunday they are in the father's care between 6:30 and 7:00pm;
(b) With the father on the Friday they are in the mother's care between 6:30 and 7:00pm;
(c) During school holiday time with the parent they are not spending time with, every third day between 6:30 and 7:00pm;
(d) At such further or other times as requested by X or Y.
10. Notwithstanding Order 8 of these Orders, commencing in 2024 and each alternate year thereafter the children live with and spend time with their parents as follows:
(a) Commencing 2 January for fourteen (14) nights with the father;
(b) For the Term 1 school Holidays from the conclusion of school on the last day of Term to the commencement of school on the first day of Term 2 with the mother;
(c) For the Term 2 school Holidays from the conclusion of school on the last day of Term to the commencement of school on the first day of Term 3 with the father; and
(d) For the Term 3 school holidays from the conclusion of school on the last day of Term to the commencement of school on the first day of Term 4 with the mother.
11. Notwithstanding Order 8 of these Orders, commencing in 2025 and each alternate year thereafter the children live with and spend time with their parents as follows:
(a) Commencing 2 January for fourteen (14) nights with the mother;
(b) For the Term 1 school holidays from the conclusion of school on the last day of Term to the commencement of school on the first day of Term 2 with the father;
(c) For the Term 2 school holidays from the conclusion of school on the last day of Term to the commencement of school on the first day of Term 3 with the mother; and
(d) For the Term 3 school holidays from the conclusion of school on the last day of Term to the commencement of school on the first day of Term 4 with the father.
12. Notwithstanding Orders 8, 10 and 11, the children will spend special occasions with their parents as follows:
(a) At Christmas:
(i) From 12:00 noon Christmas Eve until 12:00 noon Christmas Day with the mother; and
(ii) From 12:00 noon on Christmas Day until 12:00 noon on Boxing Day with the father;
(b) On Mother’s Day, with the mother from 5:00pm on the Saturday to before school Monday or 9:00am on a non-school day;
(c) On Father’s Day, with the father from 5:00pm on the Saturday to before school Monday or 9:00am on a non-school day;
(d) On the children’s birthdays, with the parent with whom the child did not wake with after school or 3:00pm on a non-school day to 6:30pm, unless the children are travelling at the time of their birthday in which case the parent not otherwise spending time with the children will communicate with the children at 6:30pm via facetime;
(e) On the father’s birthday, the children spend time with the father from after school (or 3:00pm if a non-school day) until the commencement of school the following day (or 9:00am if a non-school day) unless the children are travelling at the time of the birthday in which case the father will communicate with the children at 6:30pm via facetime; and
(f) On the mother’s birthday, the children spend time with the mother from after school (or 3:00pm if a non-school day) until the commencement of school the following day (or 9:00am if a non-school day) unless the children are travelling at the time of the birthday in which case the father will communicate with the children at 6:30pm via facetime.
Changeover
13. Changeover will occur:
(a) At the children’s school on a school day;
(b) On non-school days:
(i) At the G Venue carpark at the commencement of the father’s time; and
(ii) At the H Supermarket carpark at the commencement of the mother’s time or out the front of the father's home; and
(c) At such further or other places/times as agreed by the parents in writing.
Communication
14. The parties communicate through Our Family Wizard or similar parenting application and only by text message or telephone call in an emergency and only in relation to the children, with such communication to be respectful and reasonable at all times.
15. Pursuant to s 68B of the Family Law Act 1975 (Cth) for the personal protection of the parties and the children, the parties are each hereby restrained from:
(a) Abusing, insulting, belittling, rebuking, or otherwise speaking rudely or critically about the other party to the children, in the presence of the children or within the children's hearing and nor will they permit any other person to do so; and
(b) Discussing the allegations raised in these proceedings or any future dispute between them in the presence or hearing of the children or permitting any other person doing so.
16. The parents will use their best endeavours to positively promote the other parent to the children and not undermine their parenting capacity and encourage others in their household to do the same.
17. In the event that X or Y suffers serious ill health or an emergency, the parent who has the care of the children will notify the other parent as soon as practicable of that serious ill health or medical emergency.
18. X’s sports equipment and bag will travel between the Mother and Fathers home with X, and for this purpose the sports equipment and bag will be delivered to the home of the paternal grandmother (Ms J, K Street, Town L) by the parent whose time with X is concluding and they will advise the other parent the bag is available for collection using the Our Family Wizard application.
Independent Children’s Lawyer
19. The Independent Children’s Lawyer appointment expire at 11:59pm on 28 June 2024 at which time the Order appointing the Independent Children’s Lawyer will be discharged.
Interstate travel
20. Each parent may travel interstate with the children during any period of time that the children or either of them is in their care.
21. The parent taking the children interstate provide to the other parent no later than fourteen (14) days prior to travel an itinerary with the departure and return dates and where the children will be travelling to.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.