Lansdale & Masters (No 2)

[2012] FamCA 1062

FAMILY COURT OF AUSTRALIA

LANSDALE & MASTERS (NO 2) [2012] FamCA 1062

FAMLY LAW – PRACTICE AND PROCEDURE – where the mother alleges an error in parenting orders – application of r 17.02, Family Law Rules 2004 – whether the alleged error is an “error obvious when reading the order” – consideration of the other Orders and the Reasons for Judgment delivered contemporaneously with same – where the error is of the sought envisaged by r 17.02 and ought to be amended pursuant to r 17.02(5).

Family Law Rules 2004

APPLICANT: Ms Masters

RESPONDENT: Mr Lansdale

INDEPENDENT CHILDREN’S LAWYER: Susi O’Reilly

FILE NUMBER: BRC 7222 of 2010

DATE DELIVERED: 17 December 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: In Chambers

JUDGMENT OF: Murphy J

DATE HEARD: 17 December 2012

REPRESENTATION

APPLICANT: In person

RESPONDENT: In person

Orders

1. The Orders made by Justice Murphy on 22 August 2012 be amended pursuant to r 17.02(5) of the Family Law Rules 2004 such that paragraph 21(d) thereof reads:

   From 5:00pm Christmas Eve until 12:00pm Christmas Day in every even year, commencing in 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lansdale & Masters 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 BRISBANE

FILE NUMBER: BRC7222 of 2010

Ms Masters

Applicant

And

Mr Lansdale

Respondent

REASONS FOR JUDGMENT

1. On 23 November 2012, the self-represented applicant mother sent a letter via facsimile to the Court addressed to my associate. The mother was subsequently advised that communications with Chambers must be copied to all other parties and, consequently, the mother sent the letter via email to the generic associate email address back copied to the self-represented father and the Independent Children’s Lawyer that same day. In the letter, the mother requests that an Order made by me on 22 August 2012 in respect of time between the father and the parties’ child, R, on Christmas Day in even numbered years be amended.

2. Whilst that request was not made by specific reference to r 17.02 of the Family Law Rules 2004, the mother refers in her letter to seeking a “…correct[ion] [of] the Orders under the slip rule.” Plainly, the amendment sought is pursuant to r 17.02.

3. Rule 17.02(1) provides that if a party “claims that there is an error in an order issued by the court, the party must give notice of the error to the Registry Manager and all parties.” The mother back copied the email to the father and the Independent Children’s Lawyer. She did not, it seems, notify the Registry Manager. 

4. Pursuant to r 17.02(5) a “judicial officer may, after giving each party a reasonable opportunity to be heard, rectify a suspected error referred to the judicial officer.”

5. In response to the mother’s email, an email was sent by my associate to each of the parties and the Independent Children’s Lawyer. That email advised the parties that the error alleged by the mother appeared to be correct when reference was had to specific paragraphs of the Orders and Reasons made and delivered respectively on 22 August 2012 and that it appeared that an amendment ought be made pursuant to r 17.02.

6. The parties were, however, given 14 days to file an Application should they so wish contending that the error was not, in fact, an error and that the amendment ought not be made. The email went on to state that if no such Application was filed, the Orders would be amended and issue in 14 days’ time. The parties were also advised that in the event that an Application was filed, the parties should file any and all material required for the Court to determine the issue of the costs (including indemnity costs) of that Application at the hearing of it.

7. The father subsequently sent correspondence to a Registrar of this Court on

   
   

   27 November 2012 setting out what he described as a “number of concerns and queries surrounding the making of the [mother’s] application for an amendment of the existing Orders of the Court via r.17.02, as well as the information set out in [my associate’s] correspondence.”

8. As a result of that correspondence from the father, the matter was referred to Registrar Spink who notified the parties via letter dated 7 December 2012 that:

   I have formed the belief that an error, as referred to in Rule 17.02(3)(b), has occurred in the writing of Order 21(d)…[I]t is my intention to refer this matter to the Honourable Justice Murphy on 17 December 2012…[The father] should provide me with any submission he wishes to make in relation to the alleged error by no later than 9am on 17 December 2012. Thereafter I will refer the matter to the Honourable Justice Murphy.

   (Emphasis in original).

9. As a result of the Registrar’s letter, the amendment foreshadowed in the email from my associate to the parties on 23 November 2012 was not made.

10. As foreshadowed in the Registrar’s letter, the matter has been referred to me together with correspondence received from both the father and the mother.

The proposed amendment

1. The mother alleges that the reference in paragraph 21(d) of the Orders made by me on 22 August 2012 to “2012” is wrong and should be amended to read “2014”.

2. Given the nature of the mother’s application and the father’s ostensible objection to it, it is important to set out the relevant passages of the Reasons for Judgment and Orders. As is plain from the Reasons, it was clearly intended that the parties’ child, the child, would not spend overnight time with his father until he turns four years of age in April 2013:

   90.I consider that a powerfully important factor is the nature of the relationship that [the child] has with his father.  Whatever might have been the reason/s for its past attenuation, it is in my view in a fledgling state.  That suggests orders which provide for a graduation of time and for an increase in time hastening slowly.  I think there is considerable merit in the submissions of counsel for the ICL that by the time the child is four, there will have been the opportunity for the relationship to have developed. 

   91.I cannot see that any risk to [the child] (whether through eating difficulties or role-modelling) is made worse by an increase in eight months time to two days and a night on two out of three weekends.

   …

   93.I consider it in [the child’s] best interests if, when he turns five, he is able to spend a period of a week with his father on two occasions per year.  I propose to make orders the effect of which is that up until the child turns four years of age, the father shall spend time with the child on one day per week and, as and from the age of four, the child spend time with his father overnight on two weekends out of three. In addition, I will order that from the age of five the child should be entitled to spend block holiday time with his father, in the form of two one-week periods per year.

   (Emphasis added)

3. In terms of the Orders, the following paragraphs plainly demonstrate that it was intended that the child would commence spending overnight time with his father from the age of four:

   7. The child shall spend time with the father at all times as may be agreed between the parties, and failing agreement as follows:

   a)Until the child reaches the age of four (4) years, from 9:00am to 5:00pm each Saturday;

   …

   21.The child shall spend time with his father as agreed between the parties or, failing agreement:

   a)From the date of these Orders, for eight (8) consecutive visits each Saturday from 9:00am until 3:00pm;

   b)After those eight visits, in accordance with paragraph 7(a) above;

   c)As and from the time the child turns four (4), every two out of three weekends, from 9:00am Saturday until 5:00pm Sunday;

   …

4. Paragraph 21(d) of the Orders has the effect that the child will spend time with the father “[f]rom 5:00pm Christmas Eve until 12:00pm Christmas Day in every even year, commencing in 2012”. However, on Christmas Day in 2012, the child will be aged 3 years and 8 months.

5. When paragraph 21(d) is read in light of the excerpts from the Reasons extracted above and paragraphs 7(a) and 21(c) from the Orders, it is abundantly plain that the reference to “2012” in paragraph 21(d) is an error and should instead read “2014” which is the first even year when the child will be at least four years of age.

6. This is further confirmed when one has regard to paragraph 21(e) which states that in “every odd numbered year” the father is to spend overnight time on Christmas Day with the child. Unlike paragraph 21(d), there is no commencement year specified in paragraph 21(e). This is because by Christmas Day in 2013 – being the next odd year – the child will be four years of age and spending overnight time with his father in accordance with paragraph 21(c) whereas on Christmas Day 2012, the child will not yet be spending overnight time with his father.

7. The reference to “2012” in paragraph 21(d) is “an obvious error when reading the order” particularly in the context of the paragraph immediately preceding it and paragraph 7(a).

“Reasonable opportunity to be heard”

1. The father has sent three letters to two different Registrars since the email from my associate was sent to the parties on 23 November 2012.

2. Both parties have had since 23 November 2012 to file an Application and/or correspondence, as both parties have, with the Registry.

3. The first two letters sent by the father are, in essence, identical; the father raises the same issues in each. However, in the second letter which is addressed to Registrar Spink, the father prefaces what he describes as his “concerns” with the heading “Applicants’s (sic) Submissions”.

4. In neither the first letter to the Registry nor in his “submissions” does the father address the central issue, namely whether or not the error alleged by the mother is an “error obvious when reading the order” (per the note to r 17.02).  

5. The father claims, at pages 2 – 3 of his “submissions” that:

   [I]n respect of Christmas Day for 2012, it is my recollection that His Honour specifically addressed this issue during hearing and that he saw there being no impediment to the child spending Christmas with me in the manner prescribed by the Orders as they currently exist. If I am not correct in my recollections His Honour will no doubt be able to clarify his thoughts in this regard…

6. There is no necessity to “clarify my thoughts” beyond the Reasons. The Orders and Reasons are clear; the father was to spend no overnight time with the child until he was four years of age. As at 25 December 2012 the child will be three years of age. Plainly, pursuant to paragraph 21(c), overnight time between the father and the child on Christmas Eve in “every even numbered year” per paragraph 21(d) was not to commence until the child was at least four. The first even numbered year that the child could spend time with his father on Christmas Eve in accordance with paragraph 21(c) of the Orders would, then, be 2014.

7. Neither party has appealed either the Orders or Reasons. Consequently, paragraph 21(c) – that is, the order specifying that overnight time is to commence once the child turns four – remains in effect.

8. It should also be noted that the father contends that the amendment proposed by the mother would have the effect that he would not spend overnight time at Christmas with the child until 2014. That is, with respect, incorrect. As I said earlier in these Reasons, there is no commencement year specified in paragraph 21(e) – being the paragraph dealing with time at Christmas in odd numbered years. Consequently, the child will commence spending time with his father pursuant to paragraph 21(e) in 2013; the amendment to paragraph 21(d) proposed by the mother has no impact on time pursuant to paragraph 21(e) at all.

9. The mother has also sent correspondence to the Registry. The most recent being two emails sent to Registrar Spink on 17 December 2012. In each of those emails the mother responds to several contentions made by the father in his “submissions” and in a subsequent email to Registrar Spink on

   
   

   17 December 2012.

10. With the greatest respect to each of the parties, nothing in the correspondence sent to the Court by either since the email from my associate on 23 November 2012 is relevant to the primary issue for determination, namely, whether or not the error alleged is, indeed, an error that can be rectified pursuant to r 17.02(5).

11. In my view, each of the parties has had ample opportunity to be heard, and has indeed been heard, in respect of the mother’s request for an amendment to paragraph 21(d).

12. For the reasons set out above, I consider that the reference to “2012” in paragraph 21(d) is an error of the sought envisaged by r 17.02 and ought to be amended pursuant to r 17.02(5) to read “2014”.

13. I order accordingly.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 17 December 2012.

Associate:

Date:  17 December 2012.