Family Court of Australiaminjarez and Minjarez
[2017] FamCAFC 222
•19 October 2017
FAMILY COURT OF AUSTRALIA
| MINJAREZ & MINJAREZ | [2017] FamCAFC 222 |
| FAMILY LAW – APPEAL – Final parenting orders – where the primary judge made an amendment pursuant to the slip rule – where the amendment related to time spent with each parent during the Christmas and Boxing Day period – whether the amendment changed the substance of the result that was reached or recorded – where the amendment put beyond doubt something that the primary judge plainly intended by her orders – where the amendment was open to her Honour under the slip rule – appeal dismissed. |
| Family Law Rules 2004 (Cth) r 17.02 |
| Gludau & Gludau (No 2) (2013) FLC 93-562 Pawley & Pawley (No 2) (2017) FLC 93-787 |
| APPELLANT: | Mr Minjarez |
| RESPONDENT: | Ms Minjarez |
| FILE NUMBER: | SYC | 565 | of | 2012 |
| APPEAL NUMBER: | EA | 44 | of | 2017 |
| DATE DELIVERED: | 19 October 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Thackray, Murphy & Aldridge JJ |
| HEARING DATE: | 19 October 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 April 2017; 24 July 2015 |
| LOWER COURT MNC: | [2017] FamCA 470; [2015] FamCA 603 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Humphreys |
| SOLICITOR FOR THE APPELLANT: | Rebecca Bailey & Associates |
| FOR THE RESPONDENT: | In person |
Orders
The appeal 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 Minjarez & Minjarez 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 44 of 2017
File Number: SYC 65 of 2012
| Mr Minjarez |
Appellant
And
| Ms Minjarez |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Murphy J
The trial of parenting proceedings before Rees J brought to an end a lengthy period of litigation between the parents of two children now aged ten and eight years. The extent of that dispute, and the minutiae to which it descended, is evidenced by the parenting orders made by her Honour on 24 July 2015 which extend over 33 paragraphs, many of which have sub-paragraphs.
On 12 April 2017, her Honour amended those orders in one respect and did so explicitly pursuant to “the slip rule”.[1] In this appeal by the father, he contends that her Honour erred in so doing. He asserts that the amendment is substantive and, thus, could only be made consequent upon a successful appeal or the resolution of an application to vary the existing order.
[1]Family Law Rules 2004 (Cth) r 17.02.
The amendment (and thus this appeal) concerns solely the time that the father spends with the children during the Christmas Eve and Boxing Day period each year.
It is contended on behalf of the father, correctly, that the slip rule cannot be availed so as to “permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded”.[2] Rather, the power exists to “correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order”.[3]
[2]Appellant’s Summary of Argument filed 7 September 2017, paragraph 21 quoting the decision in Gludau & Gludau (No 2) (2013) FLC 93-562 at 87,537 [20] which further quotes the High Court decision of Burrell v The Queen (2008) 238 CLR 218 at 224–225 [21].
[3]Ibid.
Despite the sensible and, with respect, appropriate submissions by counsel for the father, for the reasons I am about to explain, I am of the view that her Honour’s amendment did no more than give greater clarity to an intention that is abundantly plain from her Honour’s reasons and, indeed, from the cases run by both parties upon which those reasons, and her Honour’s orders, are based.
Thus, the reasons which follow are intended to explain why, in my view, no appealable error is demonstrated and why I would dismiss the appeal accordingly.
The Orders
Her Honour’s orders provide that the children live with their mother (Order (4)). Thereafter, numerous orders deal with a miscellany of issues including the buildup of periods of time that the children spend with their father culminating in paragraphs 23 and 24 of the orders, the terms of part of which are relevant to the issue under discussion.
Order (23) of the orders made on 24 July 2015 provides relevantly:
23. That from the commencement of Term 1, 2016 the children spend time with the Father during school holiday periods as agreed between the parents in writing, but failing agreement as follows:
…
(e)From the school holiday period at the conclusion of Term 1, 2017 and thereafter during all school holiday periods:
…
(ii) For one half of each of the Term 4 school holiday periods being the first half in odd numbered years and the second half in even numbered years (except as provided for in Order
2324 in relation to Christmas Eve, Christmas Day and Boxing Day).[[4]](Emphasis added; strikethrough and correction as per original)
[4]The strikethrough and correction of the paragraph number did not occur as a result of the application to amend the orders brought by the mother. It is plainly a typographical error corrected, it seems upon, or shortly after the orders were delivered. It is not relevant to any issues in this appeal.
As can be seen, that order makes it clear that, relevantly, as and from the conclusion of Term 1 holidays in 2017, the children will spend half of the Term 4 holidays with each parent and identifies which half shall pertain to each parent. Without more, the orders would leave the Christmas and Boxing Day period to, as it were, lie where it falls within the shared holiday regime.
However, as the terms of that order make clear, her Honour did not intend that to be the case; an exception is made in respect of those particular days. Moreover, as Order (23)(e)(ii) contemplates by its terms, paragraph 24 of the orders makes specific provision for time on those days in each year.
Sub-paragraphs (24)(c) and (d) of the orders provide:
24. That the children shall spend time with the Father on further special occasions as follows:
…
(c)From 11 am on Christmas Eve to 11 am on Christmas Day in 2017 and each alternate year thereafter;
(d)From 11am on Christmas Day to 5 pm on Boxing Day in 2018 and each alternate year thereafter;
…
The amendment to the orders made by her Honour under the slip rule is the insertion of Order (24)A which provides:
That notwithstanding any other order, the children spend time with the mother in odd numbered years commencing 2017, from 11am on Christmas Day until 5pm on Boxing Day.
(Underlined emphasis as per original)
The Manifestation of the Primary Judge’s Intention
There can be no mystery as to how her Honour’s initial orders came about or why they were made. Both the father and the mother proposed that:
(a) each of them have time with the children over the Christmas Eve and Boxing Day period each year;
(b) the mooted periods on those days would alternate: Christmas Eve and Christmas day one year; Christmas Day and Boxing Day in the next, alternating accordingly; and
(c) such time as each would otherwise be enjoying during the school holidays would be “suspended”[5] so as to allow the proposed time on those special days to occur.
[5]That being the word each party used in their written proposals for the primary judge.
Her Honour’s reasons make it abundantly clear that the only issue necessary for her to decide in respect of those specific days was whether the Boxing Day time with the father that both parties contended should occur was to conclude at 11.00am as the father contended or 5.00pm as the mother contended. Her Honour decided the latter.
Importantly, not only was it no part of either party’s case that the school holiday orders should “trump” the Christmas orders; each party’s case as presented to her Honour specifically asserted that they should not.
Against that background of the cases sought to be agitated by each of the parties, her Honour said:
49.The ICL proposes and the parties both agree that there should be a week about arrangement for the Christmas 2016 holidays.
50.The parties ultimately both agree that Christmas should be shared between them on the basis that one parent has the children from 11 am on Christmas Eve to 11 am on Christmas Day. The children would then be with the other parent from 11 am on Christmas Day until 11 am on Boxing Day (as proposed by the father) or 5 pm on Boxing Day (as proposed by the mother). There is merit in the longer period which is proposed by the mother and orders will be made accordingly.
51.In 2016, the last day of term before the Christmas holidays is 16 December. The orders proposed by the mother would have the effect that the children live with the father from the first day of the holidays until 11 am on Christmas Eve and then from 2 January 2017. Thus the children would not spend the significant days of Christmas with the father.
52.The father’s proposal is that the time with him starts at 11 am on Christmas Day so that the children spend Christmas Eve and Christmas morning with the mother and the remainder of Christmas Day with the father. That proposal is reasonable and involves less changeovers than the proposal of the ICL.
53.Orders will be made in accordance with the father’s proposal.
That same background also illuminates the father’s contention before us as to her Honour’s intention. His case is that her Honour’s intention, as reflected in the orders, would see the mother having no time with the children on Christmas Day or Boxing Day in odd numbered years.
The Appellant Father’s Argument
The central contention made on behalf of the father is that the change to the orders under the slip rule “seeks to make a substantive change to the Orders, providing [the mother] with additional time on a special occasion that is not otherwise dealt with in the Orders or the Judgement [sic]”.[6] It is also contended that “[i]t is not apparently clear, either in the Order or the Judgement [sic] that it was the intention of the court to provide for time as proposed by the Mother in her ‘slip rule’ application”.[7]
[6]Appellant’s Summary of Argument filed 6 September 2017, paragraph 9.
[7]Ibid, paragraph 10.
The argument refers to [49]–[51] of her Honour’s reasons quoted above and contends that her Honour “discusses the parents dividing the holidays equally and the father having the first half of the holidays”[8] and then goes on to contend that we should draw something from what is, or is not, ordered in respect of “Mother’s Day” and “Easter”. Why we should do so rather than look to the orders themselves, her Honour’s reasons and the respective positions of the parties earlier referred to is not evident to me.
[8]Ibid.
While the argument as framed refers to what was said by her Honour about sharing holidays at [51], no mention is made of the fact that at [50] (that is, a paragraph within the paragraphs of the reasons to which counsel refers specifically) her Honour not only deals expressly with the Christmas / Boxing Day issue but also refers expressly to the children being “with the other parent” for the remaining part of the time.
The argument also appears to ignore her Honour’s reference to the parents sharing time during that “special occasion” period and the fact that what her Honour there said was referable to proposals by both parties that the time would be shared in the manner in which her Honour ultimately ordered (albeit that her Honour accepted the mother’s proposal that it should extend for a slightly longer time).
In my view, it is beyond doubt that her Honour’s orders embraced an intention, plainly evident in the reasons, that the school holiday time otherwise enjoyed by each of the parties pursuant to Order 23(e)(ii) is subject to the specific time provided for in Order (24). Indeed that order says as much in terms. Equally, it is in my view beyond doubt that her Honour intended the time provided for in paragraphs (24)(c) and (d) of the orders to effect a “suspension” of, or as the terms of paragraph (23) of the orders expressed it, an “exception” to, the school holiday time otherwise provided for.
However, the incorrect contention of the father that the orders reflected a contrary intention raised what her Honour perceived to be a need to make her earlier-expressed intention manifest in an express order. There was no need for a specific order suspending the school holiday time provided for in Order (23)(e); that conclusion was, in my view, obvious from the terms of that order and the terms of the specific orders at (24)(c) and (d).
As I have earlier said, in my view her Honour’s amendment merely puts beyond doubt something that her Honour plainly intended by her orders.
As I apprehend it, that is precisely what the self-represented mother alludes to when she argues, correctly as it seems to me, that “if the Orders were correct, as argued by the Father … and the children are to spend the whole first half of the Term 4 school holidays with him, then Order (24)(c) should not exist”.[9]
[9]Respondent’s Summary of Argument filed 14 September 2017, paragraph 14.
In my view, the amendment was plainly open to her Honour under the “slip rule”.
The Appellant’s Additional Arguments
Counsel for the father’s Summary of Argument refers to a statement by Thackray J in Pawley & Pawley (No 2)[10] that “the authorities make plain that the slip rule can be applied only where the amendment is one upon which no real difference of opinion can exist”. That statement is taken by counsel so as to argue that:[11]
The Father does not consider that an error has been made in the 2015 Orders. The parties have a real difference of opinion in relation to the actual intention of the Order.
[10](2017) FLC 93-787, 77,450; See, Appellant’s Summary of Argument filed 6 September 2017, paragraph 19.
[11]Appellant’s Summary of Argument filed 6 September 2017, paragraphs 19–20.
Thackray J’s statement just referred to is succeeded by the statement that “[h]ence, [the slip rule] cannot apply where there is any question involving the exercise of discretion by the judge”.[12] His Honour cannot, in my respectful view, be taken to mean that the slip rule cannot be properly invoked when there is any difference of opinion. If that were so there could never be an amendment pursuant to the slip rule on the application by one party where that party’s contention as to intention is plainly correct and the other party’s different contention is plainly wrong.
[12]Pawley & Pawley (No 2) (2017) FLC 93-787, 77,450.
His Honour, it should be noted, refers to a “real” difference of opinion which is to be equated to the need for discretionary intervention by the primary judge. The distinction there drawn by his Honour is, in my respectful view, the distinction drawn in the earlier authorities to which his Honour refers, namely where the “real difference in opinion” is a proper pointer to the issue being one of substantive amendment rather than an amendment giving effect to a plain judicial intention.
The appellant father also argues that the primary judge failed to give adequate reasons on 12 April 2017 for making the amendment. Her Honour’s reasons are very brief; they did not need to be anything other than brief given the issue before her.
Her Honour at [4] restates, in effect, what was said at [51] of the 24 July 2015 reasons earlier quoted and then says:
6.In my view, the intention of the parents and of the Court is clear that the children should spend Christmas Day alternately with their parents from Christmas Eve to Christmas Day, and from Christmas Day until Boxing Day.
7.It is the clear intention of the Court that the children would spend time at Christmas with each parent.
If indeed, the intention of the court is plain from what was said in the earlier reasons, her Honour’s reasons in respect of the slip rule application needed to effectively say no more than that. Her Honour’s judgment stands or falls on whether that intention is manifest.
As I have said, in my view, that intention is manifest and her Honour’s reasons reflect that fact. The appellant’s argument should be rejected.
I would order that the appeal be dismissed.
Aldridge J
I agree with the reasons of and the orders proposed by Justice Murphy.
Thackray J
I also agree with Justice Murphy’s reasons and the order that he proposes.
I add only my respectful endorsement of what his Honour said in relation to the propriety of the submissions made by counsel for the appellant today and observe that the summary of argument to which his Honour referred was not drawn by counsel who appeared before us today.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Murphy and Aldridge JJ) delivered on 19 October 2017.
Associate:
Date: 19 October 2017
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