Charmers and Burnett

[2019] FamCA 922

FAMILY COURT OF AUSTRALIA

CHARMERS & BURNETT [2019] FamCA 922

FAMILY LAW – AMENDMENT PURSUANT TO THE SLIP RULE – Where the mother sought to correct an order pursuant to r 17.02(1) of the Family Law Rules 2004 (Cth) to reflect his Honour’s true intention – Where the mother asserts that his Honour intended to make an order allowing her to take the children to Country B in periods other than the Christmas school holidays – Where the court is satisfied that the orders do not properly reflect the reasons – Where the intention was that the mother should be able to take the children overseas in winter or summer – Amendment to Order 11 and 12 of the orders pronounced 20 August 2019.

Family Law Rules 2004 (Cth) r 17.02

Burnett & Charmers [2019] FamCA 568

APPLICANT: Ms Charmers

RESPONDENT: Mr Burnett

INDEPENDENT CHILDREN’S LAWYER: Ms Falcomer

FILE NUMBER: TVC 728 of 2017

DATE DELIVERED: 5 December 2019

PLACE DELIVERED: Townsville

PLACE HEARD: Cairns via video link to Townsville

JUDGMENT OF: Tree J

HEARING DATE: 27 November 2019

REPRESENTATION

SOLICITORS FOR THE APPLICANT: Lee Turnbull & Co

THE RESPONDENT: In person

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER” Spina Kyle Waldon

Orders

1. That order 11 of the orders pronounced 20 August 2019 be amended so that it reads:

   11.That upon the Mother giving the Father two (2) months’ notice in writing of her intention to travel with the children to Country B, the Mother be permitted to take the Children to Country B for a holiday during the whole of the Christmas school holidays in 2019, or a period of no more than four weeks to include the whole of the June/July school holidays in 2019 and each odd numbered year thereafter.

2. That order 12 of the orders pronounced 20 August 2019 be amended to read:

   12.In the event the Mother does not give the father two (2) months’ notice of her intention to travel overseas with the children in accordance with paragraph 11 of these Orders then during the Christmas/New Year school or June/July holiday period the children will live with each parent as agreed and failing agreement in accordance with paragraph 10(a).

3. That otherwise the Application in a Case filed 8 November 2019 and the Response filed 25 November 2019 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS VIA VIDEO LINK TO TOWNSVILLE

FILE NUMBER: TVC 728 of 2017

MS CHARMERS

Applicant

And

MR BURNETT

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. On 20 August 2019, for reasons then delivered,[1] I pronounced final orders in parenting proceedings between Mr Burnett (“the father”) and Ms Charmers (“the mother”). As the reasons attest, many of those orders were able to be made by consent, however there were three issues which required my determination. One of those included a question of whether the mother should have an option of taking the parties’ two children, now aged 5 and 4, to Country B in periods other than the Christmas school holidays. The mother wished to be able to do so, whereas the father opposed that. Whilst at Reasons [62] I indicated an intention to order in accordance with the mother’s proposal, in fact the only order expressly giving her school holiday time in Country B referred only to the Christmas school holidays in 2019 and each odd numbered year thereafter.

   [1]Burnett & Charmers [2019] FamCA 568 (“Reasons”).

2. By Application in a Case filed 8 November 2019,[2] the mother sought, pursuant to r 17.02(1) of the Family Law Rules 2004 (Cth) that the orders be corrected so as to reflect my true intention, if indeed I was satisfied they did not do so. By his Response filed 25 November 2019, the father opposed that application. The matter proceeded to hearing before me on 27 November 2019, on which occasion the Independent Children's Lawyer, even though discharged by virtue of the 20 August 2019 orders, appeared and supported the mother’s position.

   [2] No issue was taken by any party as to the efficacy of ventilating the issue by such a means.

3. On 27 November 2019 I reserved my decision.  This is that decision and the reasons for it.

THE ORDERS

1. The relevant orders from the orders made 20 August 2019 regarding  this issue are as follows:

   10.That the children live with each parent as agreed but filing agreement for half of all school holidays in each year, and subject to order 11 as follows:-

   (a)In odd numbered years, that the children spend the first half of the school holidays with the father, and the second half of the school holidays with the mother;

   (b)In even numbered years, that the children spend the first half of the school holidays with the mother and the second half of the school holidays with the father.

   11.That upon the Mother giving the Father two (2) months’ notice in writing of her intention to travel with the children to Country B, the Mother be permitted to take the Children to Country B for a holiday during the whole of the Christmas school holidays in 2019 and each odd numbered year thereafter.

   12.In the event the Mother does not give the father two (2) months’ notice of her intention to travel overseas with the children in accordance with paragraph 11 of these Orders then during the Christmas / New Year school holiday period the children will live with each parent as agreed and failing agreement in accordance with paragraph 10 (a).

   …

   40.That each parent is permitted to travel with the children outside the Commonwealth of Australia for the purposes of an overseas holiday.

   41.Unless otherwise agreed between the parents in writing, any such international travel with the children will occur only during the children’s time with that parent pursuant to these Orders.

   42.Unless otherwise agreed between the parents in writing, and if the parents have agreed for the duration of the children’s overseas holiday to exceed their usual time with that parent, the children will, upon their return, spend such additional time with the non-travelling parent as may be necessary to make up for the extra time the children were away.

   …

   47.In the event the Mother elects to travel to Country B in any year, if in the preceding financial year his taxable income exceeded $40,000.00 then, the Father shall pay a fixed fee of $3,000 to the Mother towards the Children’s reasonable travel expenses as follows:

   (a)By 31 May if the Mother travels during the June/July holiday period; or

   (b)By 31 October if the Mother travels during the Christmas period;

   or alternatively, if he so chooses, to pay the costs of the children’s return leg of their flight from Country B to Australia.

RELEVANT PASSAGES OF MY REASONS

1. Relevant passages of my Reasons are as follows:

   THE ISSUES

   …

   11.The second matter in dispute related to the children’s living arrangements during school holidays, and particularly the length of time which the mother should be able, during the Christmas holidays, to take the children to Country B, and whether she should have an option of taking them to Country B in periods other than the Christmas school holidays.  There was also an issue in relation to the father’s contribution to any costs of travel of the children to Country B.

   …CHILDREN’S LIVING ARRANGEMENTS DURING SCHOOL HOLIDAYS

   Overview

   56.The parties were, to use a colloquialism, all over the show in relation to their positions for holiday time.  The mother wanted to be able to spend all of the Christmas holidays each alternate year in Country B with the children.  The Independent Children's Lawyer was, in principle, happy with that, save that she wanted the mother to be required to bring the children home seven days before the start of school to accommodate any concerns about jet lag.  The father said that the mother should be able to travel to Country B every year, but that her time there be limited to four weeks.

   57.The mother also wanted to be able to take the children to Country B in other term holidays, for a period of no more than four weeks, accepting that would therefore see them out of school for some period of time.  The Independent Children's Lawyer’s proposal did not accommodate that.  The father opposed it.

   Christmas holidays

   62.I am further satisfied that the children’s experience of Country B and their Country B heritage will likely only be enhanced by having an opportunity to experience other seasons there as well.  However I am troubled about the potentiality for them to be missing up to two weeks of school on any such trip.  Nonetheless upon balance I am satisfied that the mother’s proposal is more in the children’s best interests, and will so order.

   …

CONSIDERATION OF THE ORDERS AND REASONS

1. It is plain from paragraph [62] of the Reasons that I intended to make orders substantially consistent with the mother’s proposal, which in paragraph [57] was identified as being not only the opportunity to take the children to Country B at Christmas, but also for periods of no more than four weeks in other term holidays.

2. Further, it is plain by order 47, that I contemplated the mother being able to travel during the June/July holiday period which, absent the father’s agreement, could only be for a week (pursuant to order 10) unless the father agreed.

3. I am satisfied that the orders do not properly reflect the Reasons, or indeed my intention.  Rule 17.02(1) therefore gives me the opportunity to correct them to enable them to properly reflect my intention.  That intention was that the mother should be able to take the children overseas either in the winter or the summer, and hence the way in which order 47 was cast.

4. Therefore the following alterations to my orders need to be made to give effect to the reasons:

   ·Order 11 needs to be amended so, in addition to the whole of the Christmas school holidays, there is also reference to “a period of no more than four weeks to include the whole of the June/July school holidays”;

   ·Order 12 needs to be adjusted to refer to the prospect of the June/July school holiday period.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this judgment. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 5 December 2019.

Associate:

Date:  5 December 2019