The Slip Rule: When Court Orders Need a Second Look - A 2024 Case Study That Every Family Lawyer Should Know
Aubert & Cranmore (No 3) [2024] FedCFamC1F 810 (29 November 2024)
This case highlights the practical application of the Slip Rule in family law matters, particularly in clarifying court orders to reflect their intended effect.
Background of the Case
The case involves an application by Ms Aubert seeking amendments to final parenting orders made on 4 September 2024. These orders were issued following a ten-day trial regarding the care arrangements for the child, X, born in 2017, to his two mothers, Ms Aubert and Ms Cranmore.
At trial, Ms Aubert sought equal shared parental time under a week-about arrangement, while Ms Cranmore argued for primary care, with X spending five nights per fortnight with Ms Aubert. The court ultimately ordered a transition to a week-about schedule commencing at the start of the 2024/2025 summer school holidays. Until then, a 5/9 regime was to remain in place, with X spending five nights per fortnight with Ms Aubert and nine nights with Ms Cranmore. The orders specified that changeovers for the week-about schedule would occur on Mondays.
A dispute arose when it became apparent that NN School, where X is enrolled, commences its 2024/25 summer holidays on either Tuesday, 10 December, or Wednesday, 11 December, depending on parental election. Ms Cranmore elected for X to start holidays on 10 December. This created a gap between the official start of the holidays and the first Monday changeover date, 16 December. Ms Aubert applied to the court under the Slip Rule to clarify how X’s time should be allocated between 10 and 16 December.
The Issue
The central issue in this application is whether the court can amend the orders under the Slip Rule to address the unintended gap in the parenting schedule.
The Slip Rule, as provided under Rule 10.13(1)(e) and (h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), allows a court to vary or set aside an order if:
(e) The order does not reflect the intention of the court, or
(h) There is an error arising in the order from an accidental slip or omission.
Ms Aubert argues that the existing orders unintentionally fail to provide for X’s time between 10 and 16 December, resulting in a potential 10- or 11-day period where X remains solely in the care of Ms Cranmore. She contends that the orders should be read holistically, with the intent being that the week-about arrangement begins at the start of the summer holidays, which she interprets as 10 December. Therefore, she proposes that X remain in her care from 12 to 15 December, ensuring the continuation of the 5/9 arrangement until the first Monday changeover on 16 December.
Conversely, Ms Cranmore argues that the orders are clear as written and that the court has no authority to make further amendments, as it is functus officio (meaning the court has already completed its role in the matter). She interprets the orders to mean that the 5/9 arrangement should continue until 16 December, when the week-about schedule officially begins.
Judgment of the Court
The court acknowledged that the orders, as originally drafted, created an unintended gap in the schedule. It noted that the intent of the orders is that X should enjoy a week about relationship between his mothers from the commencement of the summer school holidays 2024/2025. The court found that:
The intention of the orders was to commence the week-about schedule at the beginning of the summer holidays;
The start of X’s summer holidays was determined to be 10 December 2024; and
There was an accidental omission in the orders by not accounting for the period between 10 and 16 December.
Applying the Slip Rule, the court amended the orders to clarify that the 5/9 arrangement would continue until 16 December. This meant that X would spend time with Ms Aubert from 12 to 15 December, preventing an undue break in the regular contact schedule.