Nagel & Clay

Case [2021] FamCA 358

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

  1. In this matter final parenting orders were made by consent on 28 September 2020 and amended by agreement on 15 December 2020 (“Final Orders”).

  2. Unfortunately, a dispute has erupted between the parties concerning the proper interpretation of…

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Nagel & Clay [2021] FamCA 358
Case
[2021] FamCA 358
Decision Date

CaseChat Overview and Summary

In the matter of *Nagel & Clay*, heard by Harper J, the parties, Mr Nagel (applicant) and Ms Clay (respondent), brought before the court a dispute concerning the interpretation of final parenting orders made by consent. The core of the disagreement lay in the application of a fortnightly cycle for the children's time with the father, which was suspended during school holidays but was understood by the parties to continue to apply notionally. This led to differing views on which week of the fortnightly cycle applied at the commencement of Term 2, 2021, and thereafter.

The legal issues before the court were whether there was an ambiguity or inconsistency in the final consent orders regarding the children's time with the father, and consequently, whether the "slip rule" under rule 17.02 of the *Family Law Rules 2004* (Cth) was applicable to rectify any such issues. The court was required to determine the correct construction of the orders to resolve the parties' divergent interpretations.

Harper J concluded that no relevant ambiguity or inconsistency existed in the final orders that would necessitate the application of the slip rule. The court's preliminary view was that the form of order proposed by the father was appropriate, which would result in the dismissal of the mother's proposed order. However, the court noted that the mother had also sought to vary the final orders, the basis for which was not clear from her pleadings. Therefore, before making final orders, the court directed that the matter be listed for mention, with instructions for the parties to confer and exchange proposed minutes of orders.

Orders

Orders of the court

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).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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