Minjarez and Minjarez

[2017] FamCA 470

FAMILY COURT OF AUSTRALIA

MINJAREZ & MINJAREZ [2017] FamCA 470

FAMILY LAW – ORDERS – Amendment of previous orders

APPLICANT: Ms Minjarez

RESPONDENT:	Mr Minjarez
FILE NUMBER:	SYC	565	of		2012

DATE DELIVERED: 12 April 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 12 April 2017

REPRESENTATION

THE APPLICANT: Ms M. Minjarez

SOLICITOR FOR THE RESPONDENT: Rebecca Bailey & Associates

Orders

IT IS ORDERED

1. That the orders of 24 July 2015 should amended pursuant to the slip rule by adding a further order 24A in the following terms:

   That notwithstanding any other order, the children spend time with the mother in odd numbered years commencing in 2017, from 11am on Christmas Day until 5pm on Boxing Day.

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).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 565 of 2012

Ms Minjarez

Applicant

And

Mr Minjarez

Respondent

REASONS FOR JUDGMENT

1. Ms Minjarez, to whom I will refer as “the wife”, and Mr Minjarez, to whom I will refer as “the husband”, were parties to a final parenting proceeding determined by judgment and orders on 24 July 2015. The wife brings an application under the slip rule, as it is colloquially known, to amend the orders. The husband opposes that application. 

2. The Independent Children’s  Lawyer (“ICL”), who was responsible for the original drafting of the orders, as will be seen from the reasons for judgment, is of the view that the wife’s application is correct. The difficulty asserted by the wife arises out of the orders which provide for the time the children spend with the mother at Christmas in odd-numbered years in 2017 and following.

3. The parties, at trial, agreed that Christmas should be shared between them on the basis that one parent has the children from 11 am on Christmas Eve until 11 am on Christmas Day and the children would then be with the other parent from 11 am on Christmas Day until 5 pm on Boxing Day. The effect of the orders as presently iterated is that from Christmas holidays in 2017, when the father has the children for the first half of the holidays, there is no provision for them to spend time with the mother from 11 am on Christmas Day until 5 pm on Boxing Day as was clearly the intention of the parties and the intention of the judgment.

4. Rule 17.02 which came into effect on 1 January 2016 provides, relevantly, at (1), subsection (e) that the Court may at any time vary or set aside an order if it does not reflect the intention of the Court. 

5. 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.  

6. It is the clear intention of the Court that the children would spend time at Christmas with each parent.

7. The orders will be amended to achieve that intention.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 12 April 2017.

Associate:

Date:  12/4/2017