Addington and Koldsjor (No. 2)

[2008] FamCA 396

FAMILY COURT OF AUSTRALIA

ADDINGTON & KOLDSJOR (NO. 2) [2008] FamCA 396

FAMILY LAW – ORDERS – Clarification of orders – Application claimed ambiguity in the date an order was to commence

Family Law Act 1975 (Cth)

APPLICANT: Mr Addington

RESPONDENT: Ms Koldsjor

FILE NUMBER: SYF 4035 of 2006

DATE DELIVERED: 6 June 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: O'Ryan J

HEARING DATE: 23 May 2008

REPRESENTATION

FOR THE APPLICANT: Husband in person

COUNSEL FOR THE RESPONDENT: Mr Lloyd of counsel

SOLICITOR FOR THE RESPONDENT: Musgrave Peach

Orders

1. The application by the Father be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Addington & Koldsjor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4035  of 2006

Mr Addington

Applicant

And

Ms Koldsjor

Respondent

REASONS FOR JUDGMENT

1. Before me for hearing is an application by the husband which for present purposes I am treating as being made pursuant to rule 17.02 of the Family Law Rules.

2. On 7 March 2008 I made the following final parenting orders:

   1.      The parents have joint parental responsibility for the child of the relationship […], born on […] October 2003.

   2.      The Father have responsibility for the day-to-day care, welfare and development of the child when she lives with the Father.

   3.      The Mother have responsibility for the day-to-day care, welfare and development of the child when she lives with the Mother.

   4.      The child live with the Father as follows:-

   4.1during the [D School] 2008 school year in each alternate week from 5:00 pm on Friday to 3:00 pm on the following Tuesday commencing on 14 April 2008;

   4.2as from the commencement of the [D School] 2009 school year in each alternate week from 5:00 pm on Friday to before school on the following Tuesday morning;

   4.3during the [D School] school terms in each other week from 5:00 pm on Tuesday before school on the following Wednesday morning;

   4.4For one half of the April [D School] school holiday period by agreement, and failing agreement for the first half of such holidays in each even numbered year and the second half in each odd numbered year;

   4.5For the whole of the September [D School] school holidays;

   4.6For one half of the December/January [D School] school holiday period by agreement, and failing agreement for the first half of such holidays in each even numbered year and the second half in each odd numbered year;

   4.7In the event that the child is not living with the Father pursuant to these orders on the Father’s birthday then from 5:00 pm on the day preceding the Father’s birthday to 9:00 am or before school on the day following his birthday;

   4.8In the event that the child is not living with the Father pursuant to these orders on Father’s Day then on the weekend of Father’s Day from 5:00 pm on Saturday to 9:00 am or before school on the following Monday;

   4.9In the event that the child is not living with the Father pursuant to these orders on the child’s birthday then from 5:00 pm on the day preceding the child’s birthday until 9:00 am or before school on the following day;

   4.10In the event that the Easter period does not fall during the [D School] school holiday period between term one and term two then from 5:00 pm on the Thursday immediately preceding Easter until 5:00 pm on Easter Saturday in each even numbered year and from 5:00 pm on Easter Saturday until 5:00 pm on Easter Monday in each odd numbered year;

   4.11From 9:00 am on 25 December until 12 midday on 26 December in each year and the Mother deliver the child to the Father at the commencement of the period and the Father return the child to the Mother at the cessation of the period.

   4.12At such other times as may be agreed between the parties.

   5       The child live with the Mother as follows:

   5.1   Subject to order 4 hereof at all other times.

   5.2In the event that the child is otherwise living with the Father pursuant to these orders on the child’s birthday then from 5:00 pm on the day preceding the child’s birthday until 9:00 am or before school on the day of her birthday;

   5.3In the event that the child is otherwise living with the Father pursuant to these orders on the birthdays of the Mother and the child [S] (being the child’s sister) from 5:00 pm on the day preceeding each of the birthdays of the Mother and the child [S] until 9:00 am on the day following each of the birthdays;

   5.4In the event that the child is otherwise living with the Father pursuant to these orders on Mother’s Day then from 5:00 pm on Saturday until 9:00 am on the following Monday on the weekend of Mother’s Day;

   5.5From 9:00 am on 24 December until 9.00 am on 25 December in each year;

   6      Subject to Order 4.11 hereof the Father collect the child at the commencement of the periods the child is to live with the Father and the Mother collect the child at the commencement of the periods the child is to live with the Mother.

   7      The Father and the Mother each be entitled to daily reasonable telephone contact with the child when she is in the care of the other party.

   8      The Father and the Mother each be restrained from causing the child to have or use any surname other than the surname [Addington].

   9.     The Mother be permitted to have the child christened in the Danish Church on condition that:

   9.1the Father be at liberty to nominate a member of the clergy to co-officiate the ceremony;

   9.2the Father nominate one of the two godparents for the child;

   9.3the child be christened as [… Addington].

   10Both parties do all acts and things and execute all documents necessary to remove the name of the child from the Airport Watch List.

   11The child be permitted to travel to Europe with the Mother each year during the July school holiday period, which holiday period shall be in accordance with the calendar for the [D School].

   12Both parties be at liberty to otherwise travel overseas with the child provided they have the written consent of the other party, which consent shall not be withheld unreasonably.

   13It be noted that it is intended that the Father will also have the opportunity to travel overseas for holidays periods with the child including to South Africa.

   14In the event either party does not consent to the child travelling overseas with the other party then the party who does not provide consent shall be responsible for the care of the child during the other party’s absence.

   15In the event that either the Father or the Mother wish to travel for more than three hours outside the Sydney metropolitan area with the child each of them shall provide to the other one weeks notice in writing of the itinerary including flight numbers and dates of departure and return, accommodation details and contact details for the entire absence of the child from the Sydney metropolitan area.

   16Both parties do all acts and things and execute all documents necessary to complete the enrolment of the child at [D School] from 2009 until completion of her secondary school education.

   17In the event that either parent is unable to have time with the child in accordance with these Orders then the parent shall provide to the other parent fourteen days notice in writing.

   18The parties provide each other with information regarding:

   18.1Any medical emergency involving the child such as serious illness, accident or hospitalisation as soon as practicable.

   18.2The general health of the child such as medical appointments, progress test results and details of any treatment.

   18.3Occasions or events of special significance to the child or either party.

   19    Each parent do all things necessary to authorise:

   19.1the child’s school, pre-school or any child care facility to provide to the other party information or documents including photos, newsletters and notices upon request of the other party.

   19.2Medical practitioners or specialists to provide to the other party information or documents including medical reports and details of any treatment upon request of the other party.

   20    The Mother to notify the Father in writing of any change to her residential address and telephone number.

   21    The Father to notify the Mother in writing of any change to his residential address and telephone number.

   22    Each party be and is hereby restrained from saying anything to or in the presence or hearing of the child which is in any way derogatory of the other.

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

   24    The application by the Mother for payment of school fees be adjourned for hearing on a date to be arranged with the Listing Co-Ordinator.

3. On 17 April 2008, the parties came before Judicial Registrar Loughnan.  On that date the Father, who was self-represented, requested the matter be re-listed before me, in relation to the Father’s query as to whether Order 4.3 of the final Orders was to commence immediately or in 2009. 

4. On that date it was submitted on behalf of the Mother that it was clear that Order 4.3 operated from 2009, particularly when the Order was read in conjunction with paragraph 134 of the judgment.  However, the Mother’s solicitor, Ms Musgrave, pointed out that she was not instructed in relation to the issue of Order 4.3 raised by the Father and did not wish to deal with the issue at that time.

5. The Judicial Registrar examined the orders and stated that it was clear to him that I intended for the orders to commence when the child started school in 2009, and that he saw no problem with Order 4.3 (Transcript 14/4/2008 at 4).  The Judicial Registrar then stated the following to the Father:

   I can tell you what, I am not going to be raising this matter with his Honour.  If you want to do something about it, you can do it, with respect, at your peril, because I don’t think there’s any problem with it.

6. On 19 May 2008, the Father, filed an affidavit requesting that I clarify the date upon which Order 4.3 was intended to commence.  The Father deposed that this matter does not necessarily require a formal hearing and that clarification of my original intention would “alleviate the dispute and anxiety held between the parties about this matter”.

7. The Father submitted that there is ambiguity in the Orders, in particular that Order 4.3 should be interpreted to commence immediately, whilst he stated that it is the Mother’s interpretation that Order 4.3 commences operation in 2009.  He further stated that there is an ambiguity “between paragraphs 112 and paragraph 134” of the body of the judgment, which further complicates the interpretation of Order 4.3.

8. In paragraph 134 of my judgment I said:

   134. I am of the opinion that it is in the best interests of the child to spend substantial and significant time with the Father.  I am therefore going to order that in 2008 in each 14 day period the child live with the Father each alternate week from 5:00 pm on Friday to 3:00 pm on the following Tuesday.  Then when the child commences school in each 14 day period the child live with the Father each alternate week from 5:00 pm on Friday to before school on the following Tuesday and in the other week from 4:00 pm on Tuesday to 9:00 am or before school on the following Wednesday.  Thus the child will live with the Father for five nights in each 14 day period and at all other times with the Mother.

9. In paragraph 112 of my judgment I said:

   112. The Mother relies upon this matter.  She seeks that the amount of time the child […] spends with the Father should be phased in.  However, in my view I do not consider that this matter is important, whatever orders I make, given the nature and strength of the relationship of the child […] with the Father.

   However in paragraph 111of the judgment I said:

   111. I am required to consider the likely effect of any changes in the circumstances of the child including the likely effect on the child of any separation from either parent or any other child or other person including any grandparent or other relative of the child, with whom the child has been living.

10. No affidavit has been filed on behalf of the Mother in relation to the issue raised by the Father.

CONCLUSION

1. The regime outlined in Order 4.3, when read in conjunction with paragraph 134, was not intended to commence immediately but rather in 2009 when the child commences school.  I do not think that the Order, when read in conjunction with paragraph 134 is so ambiguous such that it creates the confusion deposed to by the Father.

2. I am not critical of the Father for seeking clarification given that Orders 4.4. 4.5 and 4.6 which relate to extended holiday periods have the words D School included but are to take effect in 2008 and this is made clear by paragraph 137 of the judgment.  Order 4.3 also has the words D School and no reference to a particular school year.  However I made clear in paragraph 134 what I intended would be the school term regime and this is then reflected in Orders 4.1, 4.2 and 4.3.

3. Any confusion alleged by the Father may be remedied under the slip rule.  However, I do not think this would be necessary in this instance.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan

Associate: 

Date:  6 June 2008