Baker and Starskey (No. 2)

[2009] FamCA 275

FAMILY COURT OF AUSTRALIA

BAKER & STARSKEY (NO. 2) [2009] FamCA 275

FAMILY LAW – Slip Rule

Family Law Rules 2004 (Cth) Rule 17.02

APPLICANT: Ms Baker

RESPONDENT: Mr Starskey

FILE NUMBER: NCC 692 Of 2008

DATE DELIVERED: 13 March 2009

PLACE DELIVERED: Sydney

PLACE HEARD: In Chambers

JUDGMENT OF: Judicial Registrar Loughnan

HEARING DATE: 13 March 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Kinnear & Company

SOLICITOR FOR THE RESPONDENT Attwaters Solicitors

Orders

1. By consent and pursuant to the slip rule the order of 20 February 2009 is rectified by replacing the figure $89,377.50 with the figure $83,241 in Order 1.

IT IS NOTED that publication of this judgment under the pseudonym Baker & Starskey is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCC 692 of 2008

MS BAKER

Applicant

And

MR STARKEY

Respondent

REASONS FOR JUDGMENT

1. Orders were made by me in property proceedings on 20 February 2009.

2. By a letter dated 12 March 2009 the solicitor for the wife, with the written consent of the solicitor for the husband, advised that there was an error in the calculations going to the final property settlement orders.

3. The parties agree that two assets were omitted from the table of assets found by me, being an ING savings account of the wife of $4,727 and the husband’s Subaru motor vehicle worth $17,000. The parties agree that the impact of adding those two assets is that the payment required by the wife to the husband should be $83,241 and not $89,377.50 which is the figure contained in the reasons for judgment and the orders made on 20 February 2009.

4. The slip rule allows the rectification of errors in the making of orders, whether errors of a party or the judicial officer. The slip rule has expression in relation to Family Court proceedings in Rule 17.02 of the Family Law Rules 2004 which provides –

   RULE 17.02

   Errors in orders

   (1)If a party claims that there is an error in an order issued by the court, the party must give written notice of the error to the Registry Manager and all parties.

   (2)        A Registrar may rectify an error that appears obvious on reading the order.

   Example

   A kind of amendment that a Registrar may make under subrule (2) is the correction of a typographical error .

         (3)         If the Registrar:

         (a)         is in doubt about whether there is an error in an order; or

        (b)       believes that an error in an order has, or may have, arisen from an accidental slip or omission;

   the Registrar may take action under subrule (4).

         (4)         If subrule (1) or (3) applies, the party or Registrar may, after giving reasonable notice to each party, refer the order to the judicial officer who made it.

   Note    If the judicial officer who made the order is unavailable, it may be referred to another judicial officer (see rule 1.13).

        (5)      A judicial officer may, after giving each party a reasonable opportunity to be heard, rectify a suspected error referred to the judicial officer.

   Note    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.

5. Here the parties agree about the error and the amendment that will correct it. The inclusion of those missing assets brings the net assets to $1,690,668 ($1,986,276 - $295,608). An equal division would leave each of the parties with $845,334 made up of $571,820 in non-superannuation assets and $273,514 in the form of superannuation. With the former matrimonial home, the wife has $655,061 and in order to bring her to $521,820 she must pay the husband $83,241.

6. By consent and pursuant to the slip rule the order of 20 February 2009 will be rectified by replacing the figure $89,377.50 with the figure $83,241 in order 1.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Ian Loughnan.

Associate: 

Date: 13 March 2009