Nielsen & Springer (No. 2)
[2021] FedCFamC1F 287
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Nielsen & Springer (No. 2) [2021] FedCFamC1F 287
File number(s): ADC 1483 of 2017 Judgment of: JARRETT J Date of judgment: 24 November 2021 Catchwords: FAMILY LAW – CHILD WELFARE – The Family Law Act 1975 (Cth) and related legislation – where a clerical error is made – where there is application of the slip rule as codified in r.10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Legislation: Family Law Act 1975 (Cth), ss 4AB, 60CC, 61DA, 62G
Cases cited: U v U (2002) 211 CLR 238 Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 22 & 23 November 2021 Place: Brisbane Solicitor for the Applicant Georgina Parker Lawyers The Respondent Litigant in person Solicitor for the Independent Children’s Lawyer Legal Aid New South Wales ORDERS
ADC 1483 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SPRINGER
Applicant
AND: MR NIELSEN
Respondent
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
9 DECEMBER 2021
THE COURT ORDERS THAT:
1.The orders published on 24 November 2021 be amended such that orders 3, 4,6 7, and 8 be deleted and orders 3 and 4 inserted as follows:
3. The children are to spend time with respondent as agreed, and failing agreement, as follows in the short school holiday periods:
(a) At the end of term 1 the children will not spend time with the respondent and will have the holiday period with the applicant.
(b) At the end of term 2 the children will spend time with the respondent from the Saturday following the last day of term until the following Saturday.
(i) This end of term 2 holiday time will take place in Northern NSW or in [BB Region] at the respondent’s election.
(ii) Changeovers for the end of term 2 holiday time will take place with the children being collect by the respondent from the applicant at the [BB airport] at 9am at the start of time and the children will be returned to the applicant by the respondent at 4pm at the conclusion of time.
(c) At the end of term 3 the children will spend time with the respondent from the Saturday following the last day of term until the Sunday 8 days later.
(i) This end of term 3 time will take place in South Australia.
(ii) Changeovers for the end of term 3 holiday time will take place at [Handover location CC] when the children arrive in South Australia. The children will fly to Adelaide airport on the earliest flight that can be booked to allow the children to arrive in Adelaide on the Morning of the 1st Saturday of the holiday period. This flight is to be booked and paid for by the respondent. The respondent will notify the applicant of the flight times no later than 14 day before the time is to commence.
(iii) At the conclusion of time the respondent will return the children to Adelaide airport at a time no earlier than 10am to fly back to New South Wales. The children’s flight to return to New South Wales will be booked and paid for by the applicant. The applicant will notify the respondent of the flight return details no later the 13 days prior to the children spending time.
(d) At the end of term 4 the children will spend time with the respondent from the Saturday following the last day of term until the following Saturday.
(i) This end of term 4 holiday time will take place in Northern NSW or the [BB Region] at the respondent’s election.
(ii) Changeovers for the end of term 4 holiday time will take place with the children being collect by the respondent from the applicant at the [BB airport] at 9am at the start of time and the children will be returned to the applicant by the respondent at 4pm at the conclusion of time.
(e) At the end of term 5 the children will not spend time with the respondent and will have the holiday period with the applicant
4. The children are to spend time with the respondent at the end of year school holiday period for 2 weeks in South Australia as agreed and failing agreements follows:
(a) In years where Christmas Day falls on an odd numbered year being 2021 and each odd numbered year thereafter from the Saturday following the last day of school until the 3rd Saturday of the Holiday period.
(i) For changeover for the end of year holiday period holiday time will take place at [Handover location CC] when the children arrive in South Australia. The children will fly to Adelaide airport on the earliest flight that can be booked to allow the children to arrive in Adelaide on the Morning of the 1st Saturday of the holiday period. This flight is to be booked and paid for by the respondent. The respondent is to notify the applicant of the flight time no later than 14 days before time is to commence.
(ii) At the conclusion of time the respondent will return the children to Adelaide airport at a time no earlier than 10am to fly back to New South Wales. The children’s flight to return to New South Wales will be booked and paid for by the applicant. The applicant will notify the respondent of the flight return details no later the 13 days prior to the children spending time.
(b) In years where Christmas Day falls on an even numbered year for two weeks being the Saturday following week 3 of the holiday period until the Saturday before week 6 of the Holiday period. This will see the children having time with the respondent week 4 and 5 of the holiday period when it is possible that the children can attend [Activity DD] in South Australia with the respondent.
(i) For changeover for the end of year holiday period holiday time will take place at [Handover location CC] when the children arrive in South Australia. The children will fly to Adelaide airport on the earliest flight that can be booked to allow the children to arrive in Adelaide on the Morning of the 3rd Saturday of the holiday period. This flight is to be booked and paid for by the respondent. The respondent is to notify the applicant of the flight time no later than 14 days before time is to commence.
(ii) At the conclusion of time the respondent will return the children to Adelaide airport at a time no earlier than 10am to fly back to New South Wales. The children’s flight to return to New South Wales will be booked and paid for by the applicant. The applicant will notify the respondent of the flight return details no later the 13 days prior to the children spending time.
2.The orders made on 17 September, 2019 be amended as follows:
(a)in order 10(c) thereof, the numerals “2019” be replaced with the numerals “2020”; and
(b)in order 10(d) thereof, the numerals “2020” be replaced with the numerals “2021”.
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
JARRETT J:
On 24 November, 2021 I delivered ex tempore reasons for judgment in the above proceedings. The orders made consequent upon those reasons were formalised by a written order that was published on 24 November, 2021.
A request was made to the court’s transcript provider for a transcript of my oral reasons for settling on 24 November, 2021. A transcript of the reasons for settling by me was received on 8 December, 2021.
The application has been relisted before me at the request of the Independent Children’s Lawyer because disputes have developed between the parties about the published orders and the way in which they are intended to operate. It was said that the orders do not reflect the reasons that I am gave, ex tempore, at the conclusion of the trial.
The parties appeared before me on 7 December, 2021 and made submissions about the issues arising from the formal record of the orders issued in the proceedings.
It is clear to me from the orders and from my reasons for judgment that the orders that have been issued have been prepared using an earlier version of the orders that were proposed by the Independent Children’s Lawyer in the case. As my reasons for decision make clear, it was my intention to make orders that coincided with a number of the most recently made proposals of the Independent Children’s Lawyer, those proposals having been sent to my associate shortly before submissions commenced in the case.
The use of the wrong version of the Independent Children’s Lawyer’s proposed orders in the publication of an order prepared on that erroneous basis was plainly an error arising from an accidental slip or omission. It was plainly a clerical mistake. In my view, the provisions of rule 10.13(g) and 10.13(h) are clearly engaged in this case.
The orders the subject of the formal record issued on 24 November 2021 should be amended to properly reflect my intention as revealed in my reasons for judgment. The orders have been so amended.
In the course of argument about the form of orders, I reiterated that it was the intention of my orders and reasons that the children would spend the Christmas (in accordance with the orders) with their father. There were some earlier orders made by Berman J following a trial most of which, I left intact. It became apparent during the course of considering the parties’ submissions at their most recent appearance that there may be an inconsistency between order 10(c) of Berman J’s orders and my orders which would provide for the children to spend Christmas with their father on each odd numbered year. I proposed a solution to that by amending in order 10(c) and 10(d) of Berman J’s orders the children’s entitlements to travel overseas with each of their parents such that they would be able to travel overseas with the mother in even-numbered years (rather than odd-numbered years as is presently provided) and they might do the same in odd-numbered years with their father rather than even-numbered years (as presently is the case).
The mother consented to such a change and the Independent Children’s Lawyer supported it. The father did not, although his reasons for doing so were not clear.
It is appropriate, I think, to make the change to orders 10(c) and 10(d) of Berman J’s orders so as to alleviate the possibility that there would be any dispute between these parties concerning overseas travel arrangements and the clashes that might occur with the entitlement of the children to otherwise spend Christmas with one or other of their parents according to the orders that I have pronounced. For those reasons, I have made a further order dealing with paragraphs 10(c) and 10(d) of Berman J’s orders made on 17 September, 2019.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 9 December 2021
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