Edmunds and Edmunds (No.2)

[2018] FCCA 541

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDMUNDS & EDMUNDS (No.2) [2018] FCCA 541

Catchwords:
FAMILY LAW – Application to amend orders pursuant to the Slip Rule.

Legislation:

Family Law Act 1975, ss.44, 79

Federal Circuit Court Rules 2001, r.16.05

Cases cited:

Pawley & Pawley (No.2) [2017] FamCAFC 136

Applicant: MS EDMUNDS

Respondent: MR EDMUNDS

File Number: PAC 4882 of 2016

Judgment of: Judge Obradovic

Hearing date: 9 February 2018

Date of Last Submission: 9 February 2018

Delivered at: Parramatta

Delivered on: 7 March 2018

REPRESENTATION

Appearing for the Applicant: Mr McCarthy

Solicitors for the Applicant: Michael Vassili Barristers & Solicitors

Appearing for the Respondent: Mr Johnson

Solicitors for the Respondent: Newhams Solicitors

ORDERS

1. The orders made 19 October 2017 be amended to read:

   “That paragraphs 1 to 5 inclusive of the Further Amended Initiating Application filed 21 March 2017 are dismissed”.

IT IS NOTED that publication of this judgment under the pseudonym Edmunds & Edmunds (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4882 of 2016

MS EDMUNDS

Applicant

And

MR EDMUNDS

Respondent

REASONS FOR JUDGMENT

1. On 15 February 2018, pursuant to a direction made on 9 February 2018, that she do so by 4pm on 14 February 2018, the Applicant filed an Application in a Case seeking certain relief, inter alia, pursuant to the slip rule in respect of the Court’s orders made on 19 October 2017.

2. The Court’s Reasons for Judgement and orders of 19 October 2017 dealt with the Applicant’s application for leave to commence property adjustment proceedings out of time, that is, it was an application for leave pursuant to s44(3) of the Family Law Act 1975 (Cth).

3. That application had been commenced by way of Initiating Application filed 17 October 2016, albeit the relief sought in that application was pursuant to s44(6) of the Act. An Amended Initiating Application was filed on 19 December 2016.

4. The proceedings had initially been commenced in the Family Court of Australia. The parties were before a Registrar of that Court on 17 January 2017, when the matter was transferred to the Federal Circuit Court of Australia, to be listed on 13 February 2017.

5. On the first listing date before this Court, the matter was set down for hearing in respect of the question of leave, being referred to as the “threshold issue”.

6. On 21 March 2017, the Applicant filed a Further Amended Initiating Application.

7. The Case Outline Document relied upon by the Applicant at hearing of the application for leave, referred to an “Amended Application for Final Orders filed 21 March 2016”. The transcript of the hearing on 7 April 2017 also reveals that the Court was aware of this document being filed and relied upon in respect of the leave application.

8. Both parties’ submissions in respect of the present slip rule application concede that the Court made a clerical error in the reference to the Initiating Application rather than the Amended Initiating Application when it referred to the application before it with respect to the leave to commence proceedings out of time.

9. As noted with approval by Justice Thackray in Pawley & Pawley(No.2)

   All courts have implied jurisdiction to amend orders which do not accurately state what was actually decided or what the court intended to decide: Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385, 389–399; DJL v The Central Authority (2000) 201 CLR 226.[2]

   [2] At [31]

10. His Honour then went further to say that “the authorities make plain that the slip rule can be applied only where the amendment is one upon which no real difference of opinion can exist”.[3]

    [3] At [55]

11. Furthermore, and pursuant to Rule 16.05 Federal Circuit Court Rules 2001 (Cth) the Court may vary its judgment or order after it has been entered if it does not reflect the intention of the Court or the party in whose favour the order is made consents.[4]

    [4] Rule 16.05 (2)(e) and(f)

12. It is clear that in delivering its Judgment on 19 October 2017, the Court was dealing with the Applicant’s application to commence proceedings out of time, and only that application.

13. By the time of the hearing, the application for leave was contained in the Further Amended Initiating Application by way of paragraph1 of the final orders sought. The relief sought in paragraphs 2 through to 5 (under the heading “Property”) was relief pursuant to s79 and associated orders, which could only be entertained if the leave to commence proceedings out of time was granted.

14. For all of those reasons, it is appropriate that the orders made on 19 October 2017 be amended to read as follows:

    That paragraphs 1 to 5 inclusive of the Further Amended Initiating Application filed 21 March 2017 are dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date:  7 March 2018

[1] Pawley & Pawley(No.2) [2017] FamCAFC 136