Cuthbert and Cuthbert (No 2)

[2015] FamCA 763

FAMILY COURT OF AUSTRALIA

CUTHBERT & CUTHBERT (NO 2) [2015] FamCA 763

FAMILY LAW – ORDERS – SLIP RULE APPLICATION – Where wife seeks amendment to final orders as to property pursuant to the Slip Rule – Where consideration as to general principles – Where amendment sought by the wife fell into the category of accidental error in part – Where orders amended in part as sought.

Family Law Rules 2004 (Cth) r 17.02

Milham and Stanford [2001] FamCA 294
TWN & PAQ [2005] FamCA 677

APPLICANT: Ms Cuthbert

RESPONDENT: Mr Cuthbert

FILE NUMBER: NCC 3270 of 2009

DATE DELIVERED: 16 September 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 14 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tockar

SOLICITOR FOR THE APPLICANT: Moylan Family Lawyers

SOLICITOR FOR THE RESPONDENT: Jodhi Coady Lawyer

Orders

1. In relation to the orders made on 12 June 2015, pursuant to Rule 17.02 of the Family Law Rules 2004:

   (a)       The sum of $159,470 provided for in Order 1 be deleted wherever appearing and sum of $356,423 be substituted.

   (b)       The words “and the balance then remaining to the husband” be deleted from Order 1(a) and be substituted with the words “with any balance then remaining to the wife to be paid by the husband within 14 days thereafter”.

   (c)       The words “Pay to the husband $125,530” and “and upon such payment” in Order 1(b) be deleted.

   (d)       The words “and the husband shall pay to the wife the further sum of $71,423 within 14 days of such delivery up to the wife of the boat” be inserted as the end of Order 1(b).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cuthbert & Cuthbert (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: NCC 3270 of 2009

Ms Cuthbert

Applicant

And

Mr Cuthbert

Respondent

REASONS FOR JUDGMENT

1. The application for determination is a “slip rule” application by the wife arising out of final orders as to property between the parties made on 12 June 2015 and reasons for judgment delivered that day. The application is opposed by the husband.

2. Also before the Court was an application for costs filed by the husband in relation to the primary proceedings. Having regard to the Appeal and Cross Appeal pending in relation to the final orders, it is appropriate that the costs application be stood over until determination of the appeals.

3. The relevant order the subject of the slip rule application provides:

   That within two months from the date of these orders the husband pay to the wife $159,470 and in default of such payment and within three months from the date of these orders the wife shall at her election and by giving to the husband notice in writing including SMS or email of her election to either:

   a)Be appointed trustee for sale…