Aubert & Cranmore (No 3)

[2024] FedCFamC1F 810

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Aubert & Cranmore (No 3) [2024] FedCFamC1F 810

File number:	SYC 6363 of 2019
Judgment of:	MCGUIRE J
Date of judgment:	29 November 2024
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Slip Rule – Where applicant brings an application to amend final orders pursuant to the Slip Rule – Orders made amending final orders pursuant to the Slip Rule
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Rule 10.13(1)(e) and (h)
Division:	Division 1 First Instance
Number of paragraphs:	35
Date of hearing:	27 November 2024
Place:	Hobart
Counsel for the Applicant:	Mr O’Ryan KC
Solicitor for the Applicant:	Landers & Rogers
Counsel for the Respondent:	Mr Matthews
Solicitor for the Respondent:	Broun Abrahams Burreket

ORDERS

SYC 6363 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS AUBERT

Applicant

AND:

MS CRANMORE

Respondent

ORDER MADE BY:	MCGUIRE J
DATE OF ORDER:	29 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The Orders made by the Honourable Justice McGuire on 4 September 2024 be varied pursuant to Rule 10.13(1)(e) and/or (h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and as set out below:

6.From 9.00am on 16 December 2024 the commencement of the long summer school holidays in 2024/25 X is to live in a week about arrangement between his mothers, commencing with Ms Cranmore (in week 1 of the schedule) and Ms Aubert (in Week 2 of the schedule) and alternating each week thereafter, but subject to these orders, such to continue during both school holidays and school terms but again subject to these orders.

7.Until 9.00am on 16 December 2024 the commencement of the long summer school holidays 2024/25 X live with Ms Aubert:

(a)in week one from the conclusion of school on Thursday (or 9.00am on a non-school day) until the commencement of school (or 9.00am on a non-school day) on the following Monday; and

(b)in week two from the conclusion of school on Thursday (or 9.00am on a non-school day) until the commencement of school (or 9.00am on a non-school day) on Friday.

8.Until 9.00am on 16 December 2024 the commencement of the long summer holidays 2024/25 X otherwise live with Ms Cranmore during school term.

2.The Application in a Proceeding filed 14 November 2024 be otherwise dismissed save as to costs.

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 the pseudonym of Aubert & Cranmore has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

McGUIRE J:

1. This is a discrete application by Ms Aubert seeking amendments under the “Slip Rule” of certain orders made as final orders by me on 4 September 2024 following a ten (10) day trial in respect of the parties’ child, X born 2017 .

2. Relevantly at the trial Ms Aubert was seeking ultimate orders whereby X live in an equal time week-about regime between the mothers. Ms Cranmore was arguing for orders whereby she remained the primary carer for X and that X ultimately spend five nights a per fortnight with Ms Aubert.

3. My orders provided for a week-about arrangement to come into effect at the commencement of the summer school holidays 2024/2025. Those same orders provide for a continuation of a 5/9 regime until the commencement of the school holidays with X spending five nights per fortnight with the Ms Aubert and nine nights with Ms Cranmore.

4. My orders provided at [10] that changeovers for the week about regime occur on Mondays.

5. The relevant orders provide in their detail:

   6.From the commencement of the long summer school holidays in 2024/25 [X] is to live in a week about arrangement between his mothers, but subject to these orders, such to continue during both school holidays and school terms but again subject to these orders.

   7.Until the commencement of the long summer school holidays 2024/25 [X] live with [Ms Aubert]:

   (a)in week one from the conclusion of school on Thursday until the commencement of school on the following Monday; and

   (b)in week two from the conclusion of school on Thursday until the commencement of school on Friday.

   8.Until the commencement of the long summer holidays 2024/25 [X] otherwise live with [Ms Cranmore] during school term.

   9.During the Term 3 school holidays 2024 [X] live equally between his mothers, being with [Ms Cranmore] for the first half of such holidays and with [Ms Aubert] for the second half of such holidays with time to commence on the last Friday of term and the changeovers to occur on the second Saturday at 12 noon; and the time to conclude on the last Sunday of such holiday at 5.00pm.

   10.The changeovers for [X’s] week about live with time between his mothers take place on Mondays at the commencement of school or if not a school day at 9.00am on the Monday.

   11.From the commencement of the long summer school holiday at the end of [X’s] school Year 6 then the summer holidays for [X] between his mothers, but subject to these orders, be divided equally between his mothers with [X] to spend the first half of such holidays with [Ms Cranmore] in the year of the completion of [X's] Year 6 and the second half of such holidays with [Ms Aubert] and in each alternate year thereafter and in the summer holidays at the completion of [X’s] year 7 with [Ms Aubert] for the first half of such holidays and with [Ms Cranmore] for the second half of such holidays and in each alternate year thereafter.

6. It is relevant for these Reasons to provide some short background facts. 

7. The mothers, Ms Aubert and Ms Cranmore, were in a same-sex relationship from early 2013 until late 2019.

8. The mothers, on agreeing to have a child, enlisted a friend, Mr F, as donor.  Mr F was an active party at the trial but not in this application. Mr F was initially a friend of Ms Aubert but by the time of the trial was supportive of Ms Cranmore’s position and contrary to Ms Aubert both personally and as to her application for equal time. Mr F lives in City MM. The orders provide for time for Mr F with X.

9. The trial was hard fought over ten (10) days and my reasons highlight the negativity between the mothers albeit that I also find that each had much to offer X.

   THE ISSUE

10. The issue here is whether under the Slip Rule the Court can and should deal with what the applicant, Ms Aubert, argues is a lacuna created by, firstly the order establishing a week-about arrangement from the commencement of the 2024/2025 summer school holidays and, secondly, my order which mandates Mondays as the changeover time for the week-about arrangement.

11. Unfortunately, for all concerned, not least this Court, X's NN School starts its 2024/25 school holidays on either Wednesday 11 December or, on the election of a parent, on Tuesday 10 December 2024 and where Ms Cranmore has made that election for Tuesday 10 December.  Perhaps if the principal or board of NN School had known the history of this matter then they might have conveniently commenced the holidays on 9 December or the previous Friday? It follows that the first changeover “on a Monday”, of course, does not now occur until Monday 16 December and hence the lacuna of some five or six days between the commencement of X’s school holidays and the first Monday of those holidays.

12. Optimistically the Court might have expected these intelligent, articulate and personally successful mothers to have negotiated this discrete issue thereby avoiding X vicariously being brought back to this Court yet again as the object of his mothers’ entrenched mistrust and lack of communication. Alas, such optimism is misplaced and to the contrary each of the mothers has acted on her own interpretation of the orders of the 4 September 2024 so as to make arrangements for events, interstate and international holidays and the like for the next 12 months. At its most abstract, therefore, each of the mothers believes and interprets my orders differently where Ms Aubert contemplates Ms Cranmore having X from Monday 16 December for a week and each alternate week thereafter and Ms Cranmore contemplates Ms Aubert having X for the week of 16 December and each alternate week thereafter.

13. Rule 10.13(1)(e) and (h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)[1] codifies what is colloquially known as the “Slip-Rule” as follows:

    [1] “The Rule and/or the Rules”.

    10.13   Varying or setting aside orders

    (1)       The court may at any time vary or set aside an order, if:

    …

    (e)       it does not reflect the intention of the court; or

    …

    (h)there is an error arising in the order from an accidental slip or omission.

14. Put simply, counsel for the applicant, Ms Aubert, argues that the Court can utilise the Slip Rule to give effect to the intention of the above orders and, read holistically, thereby “fill” the lacuna created by those orders between the 10 - 16 December.

15. Counsel for the respondent, Ms Cranmore, does not challenge the availability of the Slip Rule but argues that the orders speak for themselves and that the Court is therefore functus officio.

    THE APPLICANT’S ARGUMENT

16. The applicant, Ms Aubert, argues that the relevant orders should be read together or holistically with an eye to the intention of those orders being that the week-about arrangement begins at “the commencement of the 2024/25 long summer holidays” and until then the 5/9 arrangement continues.

17. Secondly, the applicant Ms Aubert, says that the long summer holidays commence Tuesday 10 December 2024 and this is the point of focus on the reading of the intent of the orders. Where Ms Cranmore, effectively sees the week-about 5/9 arrangement continuing until the first Monday of changeovers being Monday 16 December.

18. Ms Aubert says that a consequence of Ms Cranmore’s definition and interpretation would have X living with Ms Cranmore continually from Friday 6 December until Monday 16 December being a period of 10 or 11 days and contrary to the intent of the 5/9 regime contemplated by order 7 of my substantive orders.

19. Where the school holidays start on 10 December, Ms Aubert says that my orders now do not deal with the period between 10 - 16 December 2024 thereby creating the “lacuna”.

20. Ms Aubert says essentially that the 5/9 regime continue until the first Monday of the holidays being 16 December by X spending 12 - 15 December with Ms Aubert where he would, in any event, have been with the Ms Cranmore from 6 - 12 December. Ms Aubert says this prevents a gap being created for X of some 10 days without contact with one of his mothers and contrary to the intention of order 7.

21. The consequence of Ms Aubert’s position is therefore that X would commence his first full week about-about with Ms Cranmore from the changeover on Monday 16 December.

    THE RESPONDENT’S ARGUMENT

22. The respondent, Ms Cranmore, refers me to [163] of my Reasons which should be read in its full form as follows:

    Where I find [X’s] relationship with [Ms Aubert] to be firmly established I do not accept generally the more conservative positions taken by the ICL and perhaps by [Dr G] in respect of [X] slowly assimilating into more time in [Ms Aubert’s] home.  I accept, however, that the transition should take place during or coming out of a school holiday period.  Where [X] would be experienced in spending seven day blocks with [Ms Cranmore] during the forthcoming summer school holidays, and perhaps in earlier holidays, I am of the view that the week-about arrangement should be operative as of the start of term one in 2025 thereby effectively commencing and continuing during the summer school holidays 2024/2025.  Put another way, a continuation of the inequality in time will serve only to continue the issues referenced above.

23. Counsel for Ms Cranmore emphasises my words “during or coming out of the school holiday period” but not “into” the holiday period.  Counsel clearly focuses on the first Monday of the holidays being the first changeover day where he argues that this is where he asked the Court to understand Ms Aubert’s argument being to consider the time arrangements “leading up to the last week of Term 4 for [X]”.

24. Counsel for Ms Cranmore says that there is no reason to “disturb” the week about holiday arrangement contemplated by Ms Cranmore as it provides roughly equal time for X between his mothers during the school holidays in accordance with the intention of the orders. This is undoubtedly a correct observation but may not focus on the point of dispute between the mothers.

25. Counsel for Ms Cranmore then emphasises the prejudice to Ms Cranmore of adopting Ms Aubert’s interpretation of the orders where, of course, at its most abstract, each mother contemplates the other having X for the week commencing 16 December 2024 and each has moved to make arrangements accordingly. That “prejudices” the plans made by each of the mothers throughout 2025 emanating from the interpretation of each of my orders. “Prejudice” might be too strong a term and “inconvenience” may be more accurate.

    CONSIDERATION

26. Firstly, I accept that whatever order I make will provide a “prejudice” or “inconvenience” to one or other of the mothers. Again my substantive reasons clearly encourage these mothers to move forward and, armed with those reasons, to maturely and objectively conciliate or negotiate disputes, such as this, which will inevitably occur during X’s minority and rather than continuing to use this Court as an arbitrator but where I sadly contemplated further dispute between the mothers if only by reason of the extraordinary detail in the orders proffered by each of them.

27. I accept that the unfortunate failure of my orders mandating Mondays as the changeover day to collide with the commencement of the school holidays for X being Tuesday 10 December is the genesis of this dispute and the contrary interpretations of each of the parties.

28. I think it proper to read my orders holistically and which should then engender the intent of the orders consistent with the reasons that ground them.

29. I am comfortably persuaded that the intent of my orders is that X should enjoy a week about relationship between his mothers from the commencement of the summer school holidays 2024/2025.

30. Further, the obvious intent of those orders is that X should have a period of assimilating into Ms Aubert’s care leading up to the commencement of the week-about regime. That is achieved by a regime of five nights with Ms Aubert and nine nights with Ms Cranmore over a fortnight. That rationale is clear on my Reasons at [162] and [163] read in their entirety.

31. Sadly, the literal reading of my orders with reference to the changeover being on a Monday and with reference to the commencement of the holidays does, in my view, create the lacuna suggested by counsel for Ms Aubert whereby X would encounter a period of some 10 days without time with Ms Aubert. In my view this was not the intent of the orders and therefore prima face is not in X’s best interests.

32. I am persuaded that the position taken by Ms Aubert best attends to this issue and hence to X’s best interests. That is, the intent of the Court was to maintain a regularity and frequency of contact for X with his mothers by way of a 5/9 regime until the implementation of the week‑about arrangement. Ms Aubert’s proposal attends to maintaining this intent. Ms Cranmore’s interpretation creates a situation contrary to that intent.

33. Consequently, I am of the view that the failure of the relevant orders to collide does leave a lacuna which is something that I can and should address and hence I am not functus officio.  The “Slip Rule” now codified in Rule 10.13 properly allows me to do so.

34. There will, therefore, be orders in the terms of Ms Aubert’s application although I read the application and [15(a)(ii)][2] as diametrically contradictory to the orders sought in her Application in a Proceeding. My understanding is that the proposal set out at [15] of her affidavit sworn 14 November 2024 accurately reveals her application and confirmed by her Case Outline.[3]

    [2] Ms Aubert affidavit filed 14 November 2024.

    [3] Filed 26 November 2024.

35. Finally, it is proper to comment this regrettable situation might give these otherwise excellent mothers cause to heed the strong suggestion in my Reasons that X’s best interests are served by cooperative parenting rather than the use of this Court to arbitrate the issues which will inevitably arise during X’s minority.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire.

Associate:

Dated:       29 November 2024