Bowden & Bowden (No 2)

FAMILY COURT OF AUSTRALIA

BOWDEN & BOWDEN (NO 2)

[2013] FamCA 579

FAMILY COURT – ORDERS – Variation – Application to vary orders – Orders amended pursuant to the Slip Rule

Family Law Act 1975 (Cth)

Burrell & The Queen (2008) 238 CLR 218
Vance & Vance [2011] FamCAFC 17

APPLICANT:

Ms Bowden

RESPONDENT:

Mr Bowden

INDEPENDENT CHILDREN’S LAWYER:

Ms Elleray

FILE NUMBER:

DUC

428

2010

DATE DELIVERED:

11 April 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

11 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

N/A

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Elleray

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Cathleen Corridon & Associates

“Amended Pursuant To Rule 17.02 Of The Family Law Rules 2004”

IT IS ORDERED THAT

All previous parenting orders be and are hereby discharged.
The mother have sole parental responsibility for the children L born … 2006, Y born … 2008 and G born … 2011 and the mother shall advise the father in writing or by email within 7 days of parenting decisions made in relation to schooling, religion and health.
Except as provided for hereafter the children live with the mother.
L live with the father during school terms as follows:
(a)From after school Thursday to before school Monday each alternate week commencing 14 February 2013; and
(b)From after school each alternate Thursday until the commencement of school on Friday commencing 7 February 2013.
Y live with the father during school term as follows:
(a)From after school or kindergarten Thursday to before school or kindergarten Monday each alternate week commencing 14 February 2013;
(b)From after school or kindergarten each alternate Thursday until the commencement of kindergarten or school on 7 Friday commencing February 2013.
G live with the father as follows:
(a)From 10:00 am to 4:30 pm Thursday and from 10:30 am to 5:00 pm on Saturday each alternate week commencing 27 December 2012 save and except for those times during the 2012/2013 summer holidays when L and Y are in the mother’s care;
(b)From 10:00 am to 4:30 pm Wednesday and from 10:00 am to 7:00 pm each alternate Thursday commencing 20 February 2013;
(c)When G attains 2 years of age from 10:00 am to 4:30 pm Thursday and 5:00 pm Saturday to 5:00 pm Sunday each alternate week for a period of 4 months, from 10:00 am to 4:30 pm Wednesday and from 9:45 am each other alternate Thursday to 9:45 am the following day;
(d)After 4 months from 10:00 am to 4:30 pm Wednesday and from 10:00 am Friday to 5:00 pm Sunday each alternate week for a further period of 4 months and from 9:45 am each other alternate Thursday to 9:45 am the following day;
(e)After 8 months from 10:00 am Thursday to 5:00 pm Sunday each alternate week and from 9:45 am each other alternate Thursday to 9:45 am the following day;
(f)When G attains 3 years of age from 10:00 am Thursday to 10:00 am Monday each alternate week and from 9:45 am each other alternate Thursday to 9:45 am the following day;
(g)When G attends kindergarten or school, during school terms from after kindergarten or school Thursday to before school Monday each alternate week and from after kindergarten or school to each alternate Thursday until the commencement of school or kindergarten the following day.
The father communicate with the children by telephone each Monday between 5:00 pm and 5:30 pm and during school holidays the mother communicate with the children by telephone each Monday between 5:00 pm and 5:30 pm when they are with the father.
L and Y live with the father for half of the school term holidays commencing 2013 as agreed and failing agreement, the first half.
G live with the father for half of the school term holidays commencing 2014 as agreed and failing agreement, the first half.
L and Y live with the father during the 2012/2013 school summer holidays as follows:
(a)From 5:00 pm Friday 21 December 2012 to 5:00 pm Friday 28 December 2012; and
(b)From 5:00 pm Friday 2 January 2013 to 5:00 pm Friday 16 January 2013 when the father will be at liberty to take the children with him to NSW.
L and Y live with the father for half of the school summer holidays commencing 2013/2014 as agreed and failing agreement, the first half in odd years and the second half in even years.
G live with the father each alternate week during the time L and Y live with the father in the 2013/2014 school summer holidays.
G live with the father for half of the school summer holidays commencing 2014/2015 as agreed and failing agreement, the first half in odd years and the second half in even years.
The children live with the father at such other times as may be agreed in writing between the parties.
The children spend time with the father as follows:
(a)Father’s Day from 10:00 am to 5:00 pm if the children are not living with the father on Father’s Day;
(b)On the children’s birthdays and the father’s birthday for 4 hours on a non-school day as agreed and failing agreement from 10:00 am to 2:00 pm and for 2 hours if on a school day;
(c)From 4:00 pm Christmas eve to 4:00 pm Christmas day 2012 and each alternate year thereafter;
(d)From 4:00 pm Christmas Day to 4:00 pm Boxing Day 2013 and each alternate year thereafter;
(e)From 4:00 pm Good Friday to 4:00 pm Easter Saturday in 2013 and each alternate year thereafter;
(f)From 4:00 pm Easter Saturday to 4:00 pm Easter Sunday in 2014 and each alternate year thereafter; or
(g)As may be otherwise agreed in writing.
The father’s time with the children be suspended as follows:
(a)On Mother’s Day, if the children are otherwise with the father on that day from 10:00 am to 5:00 pm;
(b)On the children’s birthdays and the mother’s birthday if the children are with the father on those days for 4 hours on a non-school day as agreed and failing agreement from 10:00 am to 2:00 pm and for 2 hours if on a school day;
(c)From 4.00 pm Christmas Eve 2013 to 4.00 pm Christmas Day 2013 and each alternate year thereafter if the children are otherwise with the father
(d)From 4.00 pm Christmas Day 2012 to 4.00 pm Boxing Day 2012 and each alternate year thereafter if the children are otherwise with the father;
(e)From 4.00 pm Easter Saturday 2013 to 4.00 pm Easter Sunday 2013 and each alternate year thereafter;
(f)From 4.00 pm Good Friday 2014 to 4.00 pm Easter Saturday 2014 and each alternate year thereafter; or
(g)As may be otherwise agreed in writing.
The mother and father each do all things required by R Contact Centre Suburb S to enrol in the changeover program with the mother and father to share the costs of R Contact Centre.
Upon being accepted into the changeover program at R Contact Centre all changeovers that cannot be accommodated at either school or kindergarten occur at R Contact Centre Suburb S, when R Contact Centre Suburb S is unavailable changeovers occur inside Café V, Suburb U and other family members or friends must not be present at changeovers and in the event that the mother or father is unable to attend, one person shall facilitate changeover on that person’s behalf.
The father be at liberty to attend any school function and/or parent/teacher interviews, such interviews to be separate from the mother, to which parents are ordinarily invited.
The mother authorise the children’s schools or kindergartens to provide to the father, at his expense, copies of all reports, photographs, notices and all other material provided to parents.
The mother and father each are at liberty to travel with the children outside the State of Victoria when the children are in their care pursuant to these orders upon advising the other parent at least 14 days prior to travel in writing or by email of the details of the travel and contact details.
The mother keep the father informed of all medical and allied providers treating the children and authorise the father to obtain information from such providers.
In the case of a medical emergency affecting any of the children, the mother advise the father as soon as practicable and allow the father to visit the affected child as agreed between them and in the event the children are in the father’s care then the father shall advise the mother immediately of the medical emergency affecting any of the children and the medical institution the child/ren have been taken to where she shall be at liberty to attend.
The mother is and is hereby restrained from changing the children’s surname.
The mother and father do all acts and things and sign all necessary documents required by Births, Deaths and Marriages to amend the record of the Birth Certificate of the child G as G T Bowden and, in the event that the father fails to sign the necessary documents, the mother’s signature alone shall be sufficient to amend the Birth Certificate.
The mother and father are hereby restrained from denigrating the other parent, discussing these proceedings to or in the presence of any of the children or within their hearing, from allowing them access to any documents relating to these proceedings and allowing any other person to do so.
The mother advise the father as soon as practicable by no later than 14 days after, any enrolments of the children in school, kindergarten or crèche.
Save for the purpose of paragraph 19 hereof or in the case of an emergency the mother and father are hereby restrained from attending the children’s school on the school days when the child is in the other parent’s care or changeovers at school.
The father, as authorised by the mother, make his best endeavours to obtain a separate reading book from L’s school.
The mother and father be at liberty to enrol the children in one sporting activity each per season, advising the other parent of such enrolment and ensure the children shall attend all of the sporting activities each week when the children are in their respective care.
The mother ensure, to the greatest extent possible, that all appointments with Early Intervention Childhood Services for Y be made only at times when Y is in her care.
As soon as practicable the mother and father shall engage with the Child Protection Society or such other service recommended by the Child Protection Society or the Department of Human Services to receive assistance to build insight into the impact of adult conflict on children and to manage the children’s behaviours.
The Independent Children’s Lawyer be discharged.
That all applications be otherwise dismissed and removed from the list of cases awaiting hearing.
Pursuant to s 65DA(2) and s 62B, 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 to adjust to and comply with an order as set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including solicitor acting as counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bowden & Bowden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DUC 428 of 2010

Ms Bowden

Applicant

And

Mr Bowden

Respondent

REASONS FOR JUDGMENT

On 21 December 2012 I published my reasons and, having given the parties the opportunity to consider the orders I was proposing to make, made detailed parenting orders. The matter has been listed before me at the request of the husband on the basis that the orders, notwithstanding what he says is the clear intention set out in my reasons, do not make provision for the child G to commence overnight time on a Thursday in each alternate week. The relevant orders I made with respect to G are as follows:
6.   [G] live with the father as follows:
a)   From 10:00am to 4:30pm Thursday and from 10:30am to 5:00pm on Saturday each alternate week commencing 27 December 2012 save and except for those times during the 2012/2013 summer holidays when [L] and [Y] are in the mother’s care;
b)     From 10:00am to 4:30pm Wednesday and from 10:00am to 7:00pm each alternate Thursday commencing 20 February 2013;
c)     When [G] attains 2 years of age from 10:00am to 4:30pm Thursday and 5:00pm Saturday to 5:00pm Sunday each alternate week for a period of 4 months, from 10:00am to 4:30pm Wednesday and from 10:00am to 7:00pm each other alternate Thursday;
d)     After 4 months from 10:00am to 4:30pm Wednesday and from 10:00am Friday to 5:00pm Sunday each alternate week for a further period of 4 months and from 10:00am to 7:00pm each other alternate Thursday;
e)     After 8 months from 10:00am Thursday to 5:00pm Sunday each alternate week and from 10:00am to 7:00pm each other alternate Thursday.
f)   When [G] attains 3 years of age from 10:00am Thursday to 10:00am Monday each alternate week and from 10:00am to 7:00pm each other alternate Thursday;
g)     When [G] attends kindergarten or school, during school terms from after kindergarten or school Thursday to before school Monday each alternate week and from after kindergarten or school to 7:00pm each other alternate Thursday.
Although the Court was advised that the father would be appearing, there is no appearance by him today, nor is there any appearance on behalf of the mother. There is, however, an appearance by Ms Elleray, on behalf of the Independent Children’s Lawyer. I do, however, have a letter which was provided to me, which is from Ms W, the coordinator at R Contact Centre, Suburb S, which is titled “Agreement to Alter Family Court Orders” and is dated 22 March 2013. That letter says as follows:
It has been agreed to include the following arrangements for [G] to the current court orders. [G] is to commence overnight visits with her father commencing Thursday April 4 2013, and this arrangement is to continue every fortnight thereafter. The changeover times will be 9.45 am on the Thursday and 9.45 am on the Friday. I agree to the following arrangements –
The letter is signed by both of the father and the mother. I have also today received an email from the mother, forwarded to my Associate, in which she says as follows:
I have just noticed that this matter is still listed for court today. It was my presumption that an agreement had been made, therefore [Mr Bowden] would have it taken of (sic) the list.
The issue of [G] staying at [Mr Bowden’s] (sic) overnight commenced on the 4th April. The issue was about allowing [G] to settle in to one overnight stay then increasing it as stated in Para 36, in addition to the Orders.
I was not aware of the slip in the orders until it was pointed out to me and then begun working with [R Contact Centre] to come to a date to commence time.
[R Contact Centre] [Suburb S] is assisting with a schedule for the rest of the year as to when the children are to be at each parents (sic) house in accordance with the Orders. [G] next night will be added in mid June as per Orders.
If this matter has not been heard yet, I am available via mobile phone. Regards
[Ms Bowden]
It is the father’s case that it is clear from my reasons that I intended G to spend overnight time with him in the alternate week once she had turned two years of age. In paragraph 36 of my reasons for judgment, I say as follows:
I am also satisfied that although it would not be in [G’s] best interests to bring forward the timetable for overnight time with the father as he proposes, I do accept that her time with the father each alternate Thursday should extend to Friday morning once she commences regular overnight time with the father following her 2^nd birthday.
That is what I intended, and paragraph 36 of my judgment makes that abundantly clear. The High Court in Burrell & The Queen (2008) 238 CLR 218 considered the question of the standing of orders and the circumstances in which orders made by a superior court of record might be amended. Their Honours Gummow, Heyne, Heydon, Crennan and Bell JJ said at paragraph 21 as follows:
The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order provides no substantial qualification to that rule. The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded.
Boland J in Vance & Vance [2011] FamCAFC 17 said at paragraph 17 of her judgment:
Two essential criteria have been identified where the slip rule may be invoked, where there is a clerical mistake and where there is an accidental slip or an accidental omission.
In this case, there is clearly an accidental slip or omission and I am satisfied that the orders I made on 21 December 2012 should be amended under the slip rule to reflect what it is clear from my reasons was intended by the orders I made that day. Accordingly, I propose to amend paragraphs 6(c), (d), (e) and (f) of my orders. Paragraph (c) will now read:
When [G] attains 2 years of age from 10:00 am to 4:30 pm Thursday and 5:00 pm Saturday to 5:00 pm Sunday each alternate week for a period of 4 months, from 10:00 am to 4:30 pm Wednesday and from 9:45 am each other alternate Thursday to 9:45 am the following day.
Paragraphs (d), (e) and (f) will be worded in the same manner, and paragraph (g) will read:
When [G] attends kindergarten or school, during school terms from after kindergarten or school Thursday to before school Monday each alternate week, and from after kindergarten or school to each alternate Thursday until the commencement of school or kindergarten the following day.
Whilst the mother’s letter suggests that there may be ongoing negotiations in relation to my orders, that would go to the substance of the orders. The parties can of course seek to vary the orders by consent, however that is not a matter which I should address in circumstances where I am being asked to amend the orders pursuant to the slip rule. .

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 11 April 2013.

Associate:

Date: 22 July 2013

[2013] FamCA 579

11 April 2013

Key Legal Topics

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Civil Procedure

Equity & Trusts

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Res Judicata

Abuse of Process

Estoppel