Apuzzo & Apuzzo (No 3)

[2023] FedCFamC1F 842

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Apuzzo & Apuzzo (No 3) [2023] FedCFamC1F 842

File number(s):	BRC 9896 of 2018
Judgment of:	JARRETT J
Date of judgment:	8 August 2023
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Where applicant applied to amend final orders pursuant to r 10.13 – Where errors in the order were apparent on its face – Amendments made in terms of the application
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 10.13
Division:	Division 1 First Instance
Number of paragraphs:	17
Date of hearing:	8 August 2023
Place:	Brisbane
Solicitor for the Applicant:	OMB Solicitors
Solicitor for the Respondent:	Litigant in person

ORDERS

BRC 9896 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR APUZZO

Applicant

AND:

MS APUZZO

Respondent

ORDER MADE BY:	JARRETT J
DATE OF ORDER:	8 AUGUST 2023

THE COURT ORDERS THAT:

1.Pursuant to r 10.13(1)(e) and (g) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the orders of 22 December, 2022 be amended to read as follows:

(a)paragraph 6(b)(ii): during the half, being the first or second half of the Easter school holidays in which the least number of days of the Easter long weekend falls in even odd numbered years;

(b)paragraph 6(b)(iii): for the first half of their June/July/Term 2, September/Term 3 and Christmas school holiday periods in all even odd numbered years;

(c)paragraph 6(b)(iv): the second half of their June/July Term 3, September/Term 3 and Christmas school holiday periods in all odd even numbered years;

(d)paragraph 8(d): the dates for the school holidays are as per the gazetted Queensland School holiday calendar produced by Education Queensland the term dates and holiday schedule of the school at which the children attend;

(e)paragraph 20: This order operates as an authority for any care provider of the children (whether a school, doctor, hospital, extra-curricular provider or otherwise) to release any information concerning the care, welfare and development of the children to all parties, provided that they should not release any information to the applicant that may identify or tend to identify the address of the respondent or the children. Should either party seek any documentation in relation to the children (including school notices, school reports and school photograph order forms), that each parent shall be at liberty to do so with the parent seeking any documentation to be responsible for any expense involved.

2.The applicant file and serve by 4:00pm on 15 August, 2023 written submissions as to:

(a)the issue of costs;

(b)whether there should be a consequential amendment to paragraph 9(a) of the orders of 22 December, 2022.

3.The respondent file and serve by 4:00pm on 22 August, 2023 written submissions as to:

(a)the issue of costs;

(b)whether there should be a consequential amendment to paragraph 9(a) of the orders of 22 December, 2022.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JARRETT J:

1. This is an application pursuant to r 10.13(e), (g), and/or (h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.  It arises out of orders that I delivered on 22 December, 2022.  The background to the making of those orders is accurately set out in the affidavit of the applicant that was filed in support of this application.

2. There are six respects in which, he says, the orders need to be amended, because they are the subject of a slip, a mistake or an error.

3. The application is, in some respects at least, opposed by the respondent.  The basis of her opposition is not at all clear, even though she has made submissions about it.  She says the amendments that the applicant seeks are not within the purview of the slip rule and that, rather, he ought to have appealed the orders.  My conclusion about that is that she is wrong.  These are clearly errors that can be corrected under the slip rule.  They are not the subject of something that is, I would have thought, appellable error.  The correct approach, given what are obvious mistakes in the orders - seems to me to be the approach that the applicant has adopted – an attempt to negotiate an outcome, and when that has failed, to bring an application for correction under the slip rule.

4. Order 6(b)(ii) is the first matter that the applicant seeks to be corrected.  As I understand the respondent’s position, that is conceded.  Order 6(b)(ii) should be read in context with order 6(b)(i).  Order 6(b) deals with the time that two of the parties’ children will spend with the applicant during the children’s school holidays.  The order provides, in 6(b)(i), that during half, being the first or second half of the Easter school holidays, in which the greatest number of days of the Easter long weekend fall in even numbered years, the children should spend time with the applicant.  Order 6(b)(ii) has a similar provision, although it is intended that it should be the odd numbered years.  However, the current order says even numbered years.  So, both order 6(b)(i) and (ii) provide for the children to spend time with the applicant in even numbered years. 

5. The draft from which this order was produced was one produced by the applicant, which clearly set out that 6(b)(ii) was intended to be odd and, when one thinks about it, that makes perfect sense.  It is a matter that can be, and should be, corrected under the slip rule.  There will be an order in the same terms as paragraph 2(a) of the application.

6. I will come back to 6(b) and (c). 

7. Order 2(d) in the application seeks that order 8(d) be amended.  It talks about the dates for the school holidays.  These children do not attend public schools and there was initially some orders that suggested that the children should spend holiday time according to the Queensland gazetted school holidays but by the time the matter came to final submissions at the end of last year, neither party was contending that the gazetted school holidays were appropriate, and it was submitted the school holidays enjoyed by these particular children should govern the arrangements. 

8. That is perfectly sensible, and indeed, as the applicant’s affidavit extracts, there were parts of the transcript where there was a discussion about this very issue.  It is clear that order 8(d) was an error and a slip.  The orders should be amended such that the children spend their school holiday time according to their actual school holidays, not some gazetted school holiday arrangements that have little to do with their own particular arrangements.  Accordingly, 8(d) should be changed in the way the applicant contends in paragraph 2(d) of his application.

9. The order he seeks in paragraph 2(e) of his application deals with order 9(b) of the orders.  That is an order that deals with the time the children would spend with each of their parents on their birthdays.  The difficult part of this order is the reference, at the very end, to order 4 and the changeover location being specified in order 4.  The problem with the orders as they presently stand is that the changeover location is not specified in order 4, but rather, it is specified in order 11.  There should be a change - it is clearly a typographical error - to order 9(b) as the applicant contends. 

10. The respondent’s opposition to this seems to be that the orders are working.  Well, that might well be so, but this particular order could not possibly work, in the sense that it refers to a changeover location which is not specified in the orders.  The change from order 4 to order 11 simply corrects that mistake.

11. Order 20 is the subject of the applicant’s last application; the order sought in paragraph 2(f) of his application.  Order 20 might be described as the usual order as to authority for parents to get information about their children from schools, doctors, hospitals and the like.  The order, in its present form, has a proviso in it.  It says this:

    Provided that they should not release any information to the applicant that may identify, or tend to identify, the address of the respondent or the children.

    That was a proviso that appeared in a version of the orders sought by the respondent at the commencement of the proceedings.  But again, by the time the final orders were promulgated on her behalf by her senior and junior counsel, there was no such reference in the orders, the need for protection of her location or that of the children having long since passed.  

12. The inclusion of that order was clearly an error on my part, which was fostered by reason of referring to orders that were not then current.  Neither party asked for that order to be made, nor, as the applicant points out in his affidavit material, do the reasons deal with the inclusion of that revision.  In those circumstances, it ought to be removed and struck out.

13. I return, then, to orders 2(b) and (c) in the application; they deal with order 6(b)(iii) and 6(b)(iv).  Those orders deal with the time that two of the children will spend with the applicant during their school holidays other than Easter - so the June/July, September and Christmas school holiday periods.  In the course of argument, I summarised the applicant’s case to his solicitor, who agreed that my summary was accurate. 

14. Before these orders were made there were some interim orders in place.  They provided for the children to spend this time with the applicant, but the arrangements were reversed.  The interim orders provided for the children to spend the first half of their June/July, term 2 September, term 3 and Christmas school holiday periods in even numbered years with the applicant, and the second half in odd numbered years.  When these orders were issued, those arrangements were reversed. 

15. The applicant sets out in his affidavit material the difficulty that that caused, but the difficulty was ameliorated by agreement between these parties.  That too is set out in his affidavit, but the agreement was only for the Christmas school holiday period in 2022/2023.  From thereon in, the respondent’s case is that the orders should govern the arrangements.  She argues that a change in the arrangements will unsettle the children and it will just be food for further litigation in these proceedings. 

16. I do not understand how the making of, or the correction of, these orders will be food for further litigation from the applicant’s point of view.  The respondent has already indicated the prospects or likelihood of an appeal from these orders so it might be that she intends on further litigation, I do not know; but none of that matters. 

17. I am of the opinion that the arrangements set out in 6(b)(iii) and 6(b)(iv) as issued were nothing more than a slip.  It was my intention to continue the arrangements under the interim orders and so those orders should be reinstated.  I will make orders in the same terms as paragraph 2(b) and (c) in the application.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett.

Associate:

Dated:       8 August 2023