Hadlow & Davis (No 3)
[2023] FedCFamC1F 312
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hadlow & Davis (No 3) [2023] FedCFamC1F 312
File number(s): ADC 3076 of 2017 Judgment of: BERMAN J Date of judgment: 26 April 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Consideration of varying or setting aside orders – Where the father seeks a variation of the final parenting orders pursuant to the slip rule – Where the mother opposes the father’s application and asserts that it will substantially change the orders – Where the Court finds that the order does not reflect the Court’s intention as explained in the reasons – Orders. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 10.13(1)(e), 10.13(1)(g), 10.13(1)(h) Division: Division 1 First Instance Number of paragraphs: 24 Date of hearing: 17 April 2023 Place: Heard in Parramatta via MS Teams – delivered in Sydney Counsel for the Applicant: Ms Cocks Solicitor for the Applicant: SE Lawyers Counsel for the Respondent: Mr Childs Solicitor for the Respondent: VP Lawyers ORDERS
ADC 3076 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HADLOW
Applicant
AND: MS DAVIS
Respondent
order made by:
BERMAN J
DATE OF ORDER:
26 April 2023
THE COURT ORDERS THAT:
1.Paragraph 4 of the Orders dated 16 November 2022 be varied such that paragraph 3(c) and 3(d) of the Orders made 19 March 2022 be discharged and in lieu thereof the following shall apply:
For week about time during the Christmas school holiday period such that the child shall spend six (6) nights with the father in each fortnight to commence at 9.00 am on the Saturday preceding what would have been the Saturday of the alternate weekend time in 3(b)(i) to 5.00 pm on the following Friday.
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
BERMAN J
INTRODUCTON
Mr Hadlow (“the father”) and Ms Davis (“the mother”) are the parents of Z, born 2016 (“the child”).
The father seeks orders as set out in his Initiating Application filed 12 December 2022 however, he now concedes that the only order that he seeks is set out as follows:
(1)That pursuant to r 10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, paragraph 4 of the Orders made 16 November 2022 be varied such that paragraph 3(c) and 3(d) of the Orders made 19 March 2020, be discharged and in lieu thereof the following order shall apply:
(a)For week about time during the Christmas school holiday period such that the child shall spend six (6) nights with the father in each fortnight to commence at 9.00 am on the Saturday preceding what would have been the Saturday of the alternate weekend time in 3(b)(i) to 5.00 pm on the following Friday.
The order sought by the father is opposed by the mother. It is the mother’s contention that the proposed change is substantive and cannot be remedied by the application of r 10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) namely, that the order does not reflect the intention of the Court, or r 10.13(1)(g) that there is a clerical mistake in the order or r 10.13(1)(h) that there is an error arising in the order from an accidental slip or omission.
BACKGROUND
The parties have been in high conflict since the commencement of the proceedings in 2017. Following lengthy and protracted proceedings, final orders were made on 19 March 2020. Those orders provided for the children to spend time with the father during the Christmas school holiday period.
The father filed an Initiating Application on 12 December 2022 seeking the discharge of paragraphs 3(c) and 3(d) of the final orders on the basis that when he agreed to the educational arrangements for the child as proposed by the mother, he did not understand the extent and length of private school holidays.
It was uncontroversial that the final orders, which provided for the child to spend time with the father for six nights during the first and third weeks of the holiday period in odd years and second and fourth week in even numbered years, would result in a significant period when the child would not spend time with the father.
The mother’s position was relatively straight forward and she did not necessarily oppose a change to the order to reflect a week about arrangement but she opposed any extension of time from six nights to seven nights as sought by the father.
For the purposes of these proceedings, the only relevant Order made 16 November 2022, was as follows:
4.That paragraph 3(c) and 3(d) of orders made 19 March 2020 be discharged and in lieu thereof the following order shall apply:
For week about time during the Christmas school holiday period such that the child shall spend six (6) nights with the father in each fortnight to commence at 9.00 am on what would have been the Saturday of the alternate weekend time in 3(b)(i), to 5.00 pm on the following Friday.
Whilst the Orders made on 16 November 2022, upon first consideration, appear to be the same as the order now sought by the father, the significant difference is the absence of the words “the Saturday preceding”.
The father argues that the omission is significant in terms of the effect of the order in that it is an omission in the form of an accidental slip or omission or that the absence of the relevant words now renders the order such that it does not reflect the intention of the Court.
The importance to the father is set out in the following paragraphs of my judgment delivered 16 November 2022:-
50.Of importance to the father, is that the time that the child spends with him over the Christmas period coincides with the arrangements that he has to spend time with two children from a former relationship. The father makes the point that if the arrangements in respect of the subject child and his other children are not synchronised, then he would be prevented from his employment for a period of up to eight weeks.
51.The mother is not opposed to the father’s proposition but rather is concerned that at this stage, the child is not ready to have her time extended to seven nights from the current arrangement which equates to six nights.
And then at [56], the following appears:
… It is reasonable that the father’s time be notionally linked to the rotation of his alternate weekend time but that in any event, the father’s time will conclude at 5.00 pm on the last Friday of the school holidays should the child be in the father’s care.
Counsel for the father referred to various extracts from the transcript of proceedings to highlight not only that the father was clear in seeking orders that would ensure he would spend time with the child to coincide with the arrangements for the care of his two other children but also that the mother was not opposed to the tenor of the orders sought by the father but rather was more concerned that the block time would not be extended to seven days but remain as six days.
The order that the father seeks is based upon a straightforward proposition that in changing the Orders made on 19 March 2020 to reflect an extension of the father’s time with the children during the school holiday period, any variation was to give effect to the parenting arrangements that the father had with his two children of a former relationship so that the three children would spend as much time together as was possible.
Whilst it is correct that in his evidence, the father was challenged as to the extent that any arrangement made with the mother of his other children may well change if circumstances dictated that it was necessary to do so, nonetheless I accept that at present and probably for the foreseeable future, the order sought by the father would enable the father’s parenting arrangements with the mothers of his children to be synchronised.
It is likely that it would be to the advantage of the children in that they would spend time together to enhance the half-sibling relationship but also on a more practicable level, it would enable the father to attend to his employment across a period of about eight weeks comprising the Christmas school holidays.
The mother opposes the father’s application and contends that reliance upon the application of the slip rule does not permit reconsideration or alteration of the result released.
The broad contention is that the amendment to the orders sought by the father is substantive and not the subject of ready alteration given that the issue is not under consideration by appeal or by an application to vary the existing orders sought.
To a limited degree, I accept that the father’s Initiating Application should be considered as an Application in a Proceeding. If it was the father’s position to seek a substantive change to the orders, then there would be merit in the mother’s opposition.
Without a more rigorous consideration as to the application of the slip rule as provided for in r 10.13(1)(h) of the Rules, I consider that the more ready determination is by reference to r 10.13(1)(e) namely, that the current order does not reflect the intention of the Court.
By necessary implication, I consider that r 10.13(1)(e) of the Rules enables a more comprehensive consideration than might be allowed by the application of the slip rule. Having said that, I consider that it is axiomatic that in crafting paragraph 4 of the Orders made 16 November 2022, it was not a deliberate intention to exclude the words, “on the Saturday preceding” given my finding that the order as currently made, does not allow for the father’s three children to spend the maximum time together during the Christmas school holidays.
Given that the mother is in broad agreement that the father’s intention in that regard was clear and that in any event she was successful in achieving her desired outcome, I am able to find that the current order does not reflect the intention of the Court as to a significant issue under consideration.
I propose to make the order as sought by the father.
I make the order as appears at the commencement of these reasons.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 26 April 2023
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