Nagel & Clay
[2021] FamCA 358
•2 June 2021
FAMILY COURT OF AUSTRALIA
Nagel & Clay [2021] FamCA 358
File number(s): SYC 7861 of 2015 Judgment of: HARPER J Date of judgment: 2 June 2021 Catchwords: FAMILY LAW – CHILDREN – Final Parenting Orders by Consent - Where there is an issue of construction in the final orders – Whether there is ambiguity in final orders – Where final consent orders provide for children to spend time with the father in a fortnightly cycle – Where fortnightly cycle suspended during school holidays but taken to continue to apply notionally during the school holiday period – Where parties have different interpretations of which week in the fortnightly cycle applies at the commencement of Term 2, 2021 and thereafter. Legislation: Family Law Rules 2004 (Cth) r 17.02 Cases cited: Apoda & Apoda [2013] FamCA 265
Ellison v Sandini Pty Ltd [2018] FCAFC 44
Farina & Lofts and Ors [2019] FamCA 228
Harvey v Phillips & Anor (1956) 95 CLR 235
Langford & Coleman (1993) FLC 92-346
Mendicino & Mendicino(Contravention) [2015] FamCA 1179
Suiter & Suiter [2016] FamCAFC 72
Timms & Chapman [2018] FamCA 327
Number of paragraphs: 33 Date of last submission/s: 18 May 2021 Date of hearing: 10 May 2021 Place: Sydney Counsel for the Applicant: Ms Lawson of Counsel Solicitor for the Applicant: Pearson Emerson Family Lawyers Counsel for the Respondent: Mr Richardson SC Solicitor for the Respondent: Michael Conley Lawyers ORDERS
SYC 7861 of 2015 BETWEEN: MR NAGEL
Applicant
AND: MS CLAY
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
2 JUNE 2021
THE COURT ORDERS THAT:
1.The proceedings be listed for mention on 24 June 2021 at 10.00 am.
2.By no later than 4.00 pm 48 hours prior to the listing date the parties confer to agree proposed minutes of orders to reflect these reasons, with any further procedural orders necessary to bring the Application in a Case on 4 May 2021 and the Response to the Application in a Case filed on 10 May 2021 to finality.
3.By 4.00 pm on 23 June 2021 the parties submit to Chambers proposed orders by consent, or if unable to agree, competing minutes of proposed orders.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nagel & Clay has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J
INTRODUCTION
In this matter final parenting orders were made by consent on 28 September 2020 and amended by agreement on 15 December 2020 (“Final Orders”).
Unfortunately, a dispute has erupted between the parties concerning the proper interpretation of some of these orders.
The Applicant (Father) (“father”) filed an Application in a Case on 4 May 2021 (“the application”) which sought a number of orders, but relevantly an order for the enforcement of Order 10 of the Final Orders. The father also sought orders for injunctive relief. The Respondent (Mother) (“mother”) filed a Response to the Application in a Case on 10 May 2021 also seeking an order for the enforcement of Order 10, or in the alternative a variation to Order 10.
THE LAW
When the matter came before the Court on 10 May 2021 for hearing of the application, it became clear that the initial question was the proper construction of Order 10. The other orders sought by the parties were predicated upon the Court determining a settled meaning for Order 10. The parties were ordered to file written submissions with a notation that the written submissions were to be “limited to questions of construction, only, of the orders said to be the genesis of the dispute between the parties and that the Court will not have regard to any affidavit evidence for the purpose of determining any issue of construction raised by the parties”.
This approach accords with long established authority, where there has been no hearing on the merits, or delivery of reasons for judgment, but final consent orders have been made which embody the agreement of the parties. In Langford & Coleman (1993) FLC 92-346; [1992] FamCA 68 (“Langford”), Nygh J at 79,671, set out the principles and some of the authorities as follows:
However, in my view, regrettably, there is clear authority for the proposition that at least in matrimonial causes once any financial agreement reached between the parties is embodied in consent orders, it is to these orders alone that the Court must look. The Court cannot take into account whatever agreement might or might not have been reached between the parties which led to the making of the consent orders, and the authority for that proposition is found in the opinion of the Privy Council on appeal from Hong Kong in de Lasala v. de Lasala (1980) AC 546 at 560, where Lord Diplock said:-
“Financial arrangements that are agreed upon between the parties for the purpose of receiving the approval and being made the subject of a consent order by the court, once they have been made the subject of the court order no longer depend upon the agreement of the parties as the source from which their legal effect is derived. Their legal effect is derived from the court order.”
That principle was applied by the English Court of Appeal in the case of Thwaite v. Thwaite, (1981) 3 WLR at 96 and I refer particular to the judgment of Lord Justice Ormrod, as he then was, at page 101, where his Lordship said:-
“The effect of eliminating the contractual basis of these consent orders should simplify the problems. If their legal effect is derived from the court order it must follow, we think, that they must be treated as orders of the court and dealt with, so far as possible, in the same way as non-consensual orders.”
These details, although they relate respectively to the law of Hong Kong and to the law of England, have been treated as authoritative in this country and were followed and applied most notably by the Full Court of this Court in In the Marriage of Robertson and Wills (1981) 8 Fam LR 131 at 141/2 by Asche J and at 144 by Fogarty J. Although in those cases, admittedly, the courts were concerned with the rights of appeal arising from consent orders and stressed the fact that a consent order can be appealed from, like any other order, in my view the principle is wider than that. It follows that if an order made by consent must be treated like any other non-consensual court order it must be read and interpreted quite independently of what the parties subjectively might have intended thereby. It must be read as standing on its own feet, as it were.
In Ellison v Sandini Pty Ltd [2018] FCAFC 44; 263 FCR 460 at [155] - [156], Jagot J said that there is authority in other jurisdictions to the effect that final court orders made by consent fall to be construed like any other court orders (citing Basten JA in Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170; (2014) 86 NSWLR 674 at [60]), but orders in matrimonial causes “appear to be a special case” referencing the decision of Nygh J in Langford.
The decision in Langford is consistent with authority in other jurisdictions at to the extent that it denies interpretation of court orders by reference to the parties' subjective intentions. It has been followed and applied many times in this Court. For example, in Farina & Lofts and Ors [2019] FamCA 228 at [23] Carew J said: “An order should be considered in its entirety on its plain meaning without regard to the subjective intentions of the parties and having regard to extrinsic material only to the extent of resolving ambiguity”. In Timms &Chapman [2018] FamCA 327 at [17] Cronin J said of consent orders: “I consider I do not need to go behind the judgment and I should read the orders as they are”. In Mendicino & Mendicino(Contravention) [2015] FamCA 1179 (“Mendicino”) at [34], Cronin J said: “it is not what the parties both think an order means that determines what it means. It is the plain words used, construed in the context of all the words, sentences and paragraphs contained within the same primary order that determines the meaning of the order”.
Langford is also authority for the proposition that to the extent the Court may consider extrinsic material, this does not include the terms of the agreement of the parties embodied in the consent orders, unless the agreement itself is impugned. It is well settled that final consent orders which embody an agreement may be set aside on any recognised basis to set aside a contract such as “illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like” but if the agreement stands so does the order: Harvey v Phillips & Anor (1956) 95 CLR 235; [1956] HCA 27 at 243-44.
In Apoda & Apoda [2013] FamCA 265 at [35] - [41] Le Poer Trench J concluded that in construing final consent orders the Court should undertake a three step process, namely, determining whether there is ambiguity, identify surrounding circumstances, other than the subjective intentions of the parties and only so far as those circumstances are such as might be available to assist in the construction of a contract, and reach a conclusion in relation to construction. This approach was referred to without disapproval in Suiter & Suiter [2016] FamCAFC 72 at [28].
Neither party seeks to impugn the agreement embodied in the Final Orders. There were no reasons or judgment to refer to. The father argued the Final Orders were unambiguous while the mother asserted there was inconsistency or ambiguity. As Cronin J made clear in Mendicino the determination of the issue of ambiguity begins with “the plain words used, construed in the context of all the words, sentences and paragraphs contained within the same primary order”.
ORDERS 9 AND 10 OF THE FINAL ORDERS
The relevant Orders are 9 and 10 in the following terms:
School terms
9.From the commencement of school in Term 4 2020, during each school term the children live with the father as follows:
(a)in week 1 and each alternating week thereafter from the conclusion of school (or 3pm if such day is not a school day) on Friday until the commencement of school on Monday (or 8:30am if it is not a school day), being 16 October 2020; and
(b)in week 2 and each alternating week thereafter from the conclusion of school (or 3pm if such day is not a school day) on Wednesday until the commencement of school on Friday (or 8:30am if it is not a school day), being 21 October 2020; and
(c)for the purposes of implementing orders 9 (a) and 9 (b), at the commencement of Term 1 in 2021 the children live with the father in accordance with orders 9 (a) and 9 (b) as if the children had been living with the parties in accordance with orders 9 (a) and 9 (b) during the duration of the school holidays preceding each of these terms.
and otherwise live with the mother.
10.From the commencement of school in Term 2 2021 and thereafter, during each school term the children live with the father as follows:
(a)in week 1 and each alternating week thereafter from the conclusion of school (or 3pm if such day is not a school day) on Friday until the commencement of school on Monday (or 8:30am if it is not a school day)
(b)in week 2 and each alternating week thereafter from the conclusion of school (or 3pm if such day is not a school day) on Tuesday until the commencement of school on Friday (or 8:30am if it is not a school day); and
(c)for the purposes of implementing orders 10 (a) and 10 (b), at the commencement of Term 2 2021 and each following term, the children live with the father in accordance with orders 10 (a) and 10 (b) as if the children had been living with the parties in accordance with orders 10 (a) and 10 (b) during the duration of the school holidays preceding each of these terms.
and otherwise live with the mother.
DISCUSSION
It can be seen that, as regards to time spent with the father, the only difference between Order 9 and Order 10 is that, pursuant to Order 10, from the commencement of Term 2, 2021 the children spend one additional night with the father, being overnight on the Tuesday in Week 2. This is an increase from five to six nights with the father each fortnight. In that way, Order 10 simply continues the fortnightly regime set forth in Order 9 with the addition of one Tuesday night.
It can also be seen that the evident purpose of both Orders 9(c) and 10(c) is to provide a method of calculating which week in the fortnightly cycle, whether Week 1 or 2, is to be applicable immediately after the conclusion of each school holiday period. This is achieved by calculating the precise dates from the commencement dates, being 16 October 2020 in 9(a) and 21 October 2020 in 9(b).
There is no dispute that the children have lived with each of the parties without complications since the Final Orders were made until the commencement of Term 2, 2021. There was no dispute that the dates for the March/April 2021 holiday period were 1 to 20 April 2021, according to Order 11.
The essence of the dispute is that the father construed Order 10 to mean that the question of which week in the two cycle is applicable at the commencement of Term 2, 2021 is determined by reference to the alternating weeks which would have been notionally applicable as if Order 10(a) and (b) had been operating during the 2021 March/April school holidays, and, for the purposes of calculating the relevant dates, as a continuation of the fortnightly cycle initiated by Order 9 on the specified dates in October 2020.
As the father submitted, the important difference between Orders 9 and 10 is that Orders 9(a) and (b) give a specific commencement date, being 16 and 21 October 2020 respectively, for each week in the fortnightly cycle, while Orders 10(a) and (b) do not provide for a start date specifically but rely on Order 9 to provide the specifically identified starting dates for the continuous fortnightly cycle which continues through Term 4, 2020, Term 1, 2021 and then into Term 2, 2021 and thereafter.
Thus, at the end of Term 1, 2021 in accordance with Week 1 of the fortnightly cycle prescribed in Order 9, at the commencement of Term 2, the applicable week, whether Week 1 or Week 2 in the fortnightly cycle, is determined by assuming the fortnightly cycle continued through the preceding school holiday period from the end of Term 1, but in accordance with 10(a) or (b), rather than 9(a) and (b), which, as already pointed out, would be exactly the same as 9(a) and (b) except with the addition of an extra Tuesday night.
According to this construction, if the children were spending time with the father in Week 1 of the fortnightly cycle at the end of Term 1, and if 10(a) and (b) were notionally applied through the preceding school holiday period, the children would have been with the father from 2 to 4 April 2021, then 6 to 9 April 2021, followed by 16 to 19 April 2021 and 20 to 23 April 2021. In other words at the commencement of Term 2, Order 10(b) or Week 2 of the fortnightly cycle was applicable.
To the contrary, the mother argues Order 10, when properly construed, means that Order 10(a) or Week 1 coincides with the commencement of Term 2.
The mother contended that the opening words of Order 10(c) should be rectified through a process of construction to read “(c) for the purposes of implementing orders 10 (a) and 10 (b), at the commencement of Term 3 2021…”. She argues that by the simple change from “Term 2” to “Term 3” internal inconsistencies in Order 10 are removed and Orders 9 and 10 are harmonised.
The internal inconsistency in Order 10 is said to arise because the preamble to the subparagraphs 10(a), (b) and (c) states “From the commencement of school in Term 2 2021…” and 10(c) contains the same temporal reference point “…at the commencement of Term 2 2021…”. This, according to the mother, creates an immediate internal conflict or ambiguity because it means 10(b) also would be the first to occur at the commencement of school in Term 2, and 10(c) which is expressed to be a provision subsidiary to 10(a) and (b) would, on the father’s construction, take primacy over them.
The mother’s argument construes the opening words of Order 10: “From the commencement of school in Term 2 2021…” as imposing a commencement date for Week 1 of the regime of one additional night in the two cycle in Order 10(a) and (b). Her argument presupposes that Order 10(b) could not have been intended to be applicable at the commencement of Term 2, 2021, and seemed to assume that the fortnightly cycle which commenced in October 2020 in accordance with Order 9, was to be "reset" by Order 10 so as to commence in the first week of Term 2, 2021 as Week 1 in the fortnightly cycle. I do not accept this construction.
It is clear in my view that the opening words of Order 10 “From the commencement of school in Term 2 2021…” mean only that there will be inserted into the existing fortnightly cycle from the commencement of Term 2, 2021, the additional Tuesday night with the father. They do not mean the fortnightly cycle is reset to commence with Week 1 to coincide with the commencement of Term 2, 2021.
The presence of the wording “…at the commencement of Term 2 2021…” in Order 10(c) are not inconsistent with this construction. They make clear that at the start of Term 2, 2021 the fortnightly cycle is notionally taken to have continued during the preceding school holidays. In other words 10(a) and (b) are intended to apply notionally as if the different arrangements with each parent during the school holiday period between Terms 1 and 2, 2021 had not taken place.
Therefore, in my view Order 9 operated to continue the fortnightly cycle notionally through the holidays between Term 4, 2020 and Term 1, 2021. Order 10 then operated to continue the fortnightly cycle notionally through the holidays between Term 1, 2021 and Term 2, 2021 and thereafter. Thus Order 10 can be interpreted according to the plain meaning of its wording without inherent tension.
Moreover, a change of the wording suggested by the mother from “Term 2” to “Term 3” creates a lacuna rather than removing inconsistency. The mother contended that the suggested change would cause Order 10 to be consistent with Order 9 in the sense that Order 9 prescribes the notional continuance of the two week cycle during school holidays between Term 4, 2020 and Term 1, 2021.
The words at the end of 10(c) “during the duration of the school holidays preceding each of these terms” are to be read with the earlier wording “at the commencement of Term 2 2021 and each following term” and clearly refer to the school holiday period preceding Term 2 and Term 3, 2021, and school terms thereafter.
The mother’s proposed change in Order 10 from “Term 2” to “Term 3” would mean no order made provision for the holiday period preceding Term 2, 2021. Order 9 does not cover this period. Order 9(c) refers only to holiday periods “preceding each of these terms”. There may be some ambiguity in the use of the plural expression “each of these terms” here in Order 9. But this is irrelevant for present purposes. Order 9 is not the subject of dispute, it covers a period which has now passed, and on any view Order 9 does not refer to the school holiday period between Terms 1 and 2, 2021. No one suggested that it did. The mother submitted that Order 9 “has no application following the conclusions of Term 1, 2021 (in March 2021)”.
Even if Order 9 was taken to apply notionally during the holiday period preceding Term 2, 2021, this would not change the fact that the fortnightly cycle, which commenced in October 2020 in accordance with Order 9, was simply continued during that period. As already pointed out, Order 10 continues the cycle, with the addition of the extra Tuesday night, to be inserted from the commencement of Term 2, 2021. The mother argued that there was no continuation, because prior to the commencement of Term 2, 2021 the children had not been living with the parents in accordance with 10(a) and (b). In my view this is irrelevant. The application of 10(a) and (b) to the holidays preceding Term 2, 2021 was of course only notional and did not change the actual time spent with each parent during the holidays. The extra Tuesday night was not actually spent with the father while the children spent block time of the second half of the school holidays with him. But this does not break the continuity between Order 9 and 10. Rather the point of Order 10(c) is, as already stated, notionally applied 10(a) and (b) so as to continue from Order 9 the basis for calculating the dates upon which each week of the fortnightly cycle should fall in Term 2, 2021.
The mother also argued that the parties could not have intended that Order 10 would operate so that in the week commencing Term 2, 2021 the children would have spent the second half of the immediately preceding school holidays with the father, then return for only one night with the mother before returning again to the father's care in accordance with Order 10(a). But in my view that is clearly a possibility contemplated by the orders. Even on the mother’s construction, such an outcome would be possible. Such an outcome would be entirely contingent on the dates on which the school holidays fell. These change from year to year. The stability in the regime created by Orders 9 and 10 was clearly intended to continue irrespective of actual school holiday dates.
I do not accept there is any relevant ambiguity. I prefer the father’s construction of Order 10. The absence of ambiguity makes it unnecessary to refer to any extrinsic material or surrounding circumstances.
The mother also made submissions for the application of r 17.02 of the Family Law Rules 2004 (Cth). This rule is known as the “slip rule”. The mother referred to authorities which hold that the slip rule may be used to remove inconsistency or ambiguity in an order. For the reasons given above, I do not accept any relevant ambiguity or inconsistency exists, so as to occasion consideration of the application of the slip rule.
CONCLUSION
My preliminary view is that it is appropriate for the form of order proposed by the father in paragraph 1 of his Application in a Case be made. The corollary would be that the mother’s proposed Order 1 in her Response should be dismissed. However, that leaves for consideration the mother’s application to vary the Final Orders contained in paragraph 2 of her Response. The basis for this order does not appear on the face of her pleading. This judgment has dealt only with the questions of construction. Before making any orders I will list the matter for mention, with directions for the parties to exchange proposed minutes of orders prior to the mention.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 2 June 2021
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