SCVG and KLD (No.2)
[2010] FMCAfam 1317
•10 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SCVG & KLD (No.2) | [2010] FMCAfam 1317 |
| FAMILY LAW – Slip rule application. |
| Family Law Rules 2004, r.17.02 |
| Applicant: | SCVG |
| Respondent: | KLD |
| File Number: | SYC 4380 of 2008 |
| Judgment of: | Altobelli FM |
| Hearing date: | 10 November 2010 |
| Date of Last Submission: | 10 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 10 November 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Barkus Doolan Kelly |
| Solicitors for the Respondent: | MacPhillamy’s Solicitors |
THE COURT ORDERS PURSUANT TO THE SLIP RULE AND BY CONSENT THAT:
Order 4(a)(ii) of the Orders made 15 September 2010 be deleted and replaced with the following:
“The Mother would otherwise deliver the Children to and collect the Children from the Father’s residence in Sydney, she may elect to deliver the Children to Canberra Airport and collect them from Canberra Airport provided that all flights are to be organised by the Mother at her expense;”
THE COURT ORDERS PURSUANT TO THE SLIP RULE THAT:
Order 2(b)(i) of the Orders made 15 September 2010 be deleted and replaced with the following:
“In the first week of the four week cycle in place prior to the commencement of this part of these Orders, from Friday afternoon, the Mother or her nominee to collect the Children from school no later than 3:30pm and deliver them without delay to the Father’s residence, until Sunday afternoon at 3:00pm, with the Mother or her nominee to collect the Children from the Father’s residence;”
IT IS NOTED that publication of this judgment under the pseudonym SCVG & KLD (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth). This judgment was previously published under the pseudonym Vanderhum & Doriemus.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4380 of 2008
| SCVG |
Applicant
And
| KLD |
Respondent
REASONS FOR JUDGMENT
Ex Tempore
An issue has arisen between the parties in relation to order 2(b)(i) made by myself on 15 September 2010. This order governs the periods of time that the children are to live with their father and, in particular, it covers the period from 14 May 2014. The order, as presently drafted, raises two potential issues according to Mr Macphillamy, the solicitor for the mother.
The first issue is about whether, on a reasonable interpretation of the orders, they require the children to be delivered by the mother to the father at 3.30 pm, or whether in actual fact what the orders were intended to do was to ensure that the children are picked up from after school or certainly no later than 3.30 pm, and then delivered to the father.
The father’s solicitor concedes in his submissions that it is not the father’s interpretation of order 2(b)(i) that the children be required to be taken out of school so that they are delivered to him by 3.30 pm. Nonetheless, it is submitted by Mr Macphillamy that that is a possible result based on a literal interpretation of the said order.
The second issue that arises in relation to order 2(b)(i) is the absence of any reference to a nominee. In the parallel provision dealing with the period of time that the children are to live with their father until 14 May 2014, that is to say paragraph 2(a) of the orders, there is reference to the mother or her nominee collecting the children.
In each case the father contends that the matters raised are not pursuant to the slip rule, and the father’s solicitor, Ms Morozov, has referred me to rule 17.02 in the Family Law Rules and, in particular, to subrule 5 that empowers a judicial officer to rectify a suspected error. There is a note to this rule that says:
An amendment of an order may be made under this rule only if it is an error obvious when reading the order. Any other amendment must be remedied by appeal or consent.
The Family Law Rules, of course, are meant to define the parameters of procedure and not substantive law, and the general or the common law about the slip rule, I think, governs this application.
In any event, even though Ms Morozov submits that the asserted errors are not obvious when reading the order, I must respectfully disagree with her. A proper interpretation of the orders and an ascertainment of what was meant is best appreciated in the context of the other orders made on 15 September 2010 and the general context of this case. Indeed, it is because of those background issues that slip rule applications are, if at all possible, to come back before the judicial officer who heard the case and who is obviously familiar with what transpired, and therefore would have, one would hope, the best appreciation of what was intended to be achieved in the orders.
I think there are two things. Firstly, the absence of reference to nominee must surely be, and is, an inadvertent omission in the drafting. Unless it is rectified to refer to the mother’s nominee, the order would be out of sync with other orders that have been made. The second relevant issue is to have regard to the very high level of conflict that exists between these parents. Even though the father says now that it is not his interpretation of the order in such a way that would require the children to be delivered to him by 3.30, such is the level of conflict between the father and mother in this case that as few opportunities for misinterpretation should be afforded to the parties.
It could not possibly have been intended by me that the children be taken out of school so that they are delivered to their father by 3.30. That is an obvious error which is easily rectified by substituting and inserting a few words. Accordingly, I am firstly satisfied that this is a matter that is covered by the slip rule. Secondly, I am satisfied that the form of wording proposed by Mr Macphillamy in his letter of
14 October will satisfactorily address the concerns raised.
Accordingly, pursuant to the slip rule, I delete order 2(b)(i) made on 15 September 2010 and replace it with the form of wording contained in Mr MacPhillamy’s letter to my associate dated 14 October 2010.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 10 November 2010
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