FITZGERALD-STEVENS and LESLIGHTER - [2015] FCWA 33

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: FITZGERALD-STEVENS and LESLIGHTER
[2015] FCWA 33

CORAM: WALTERS J

HEARD: WRITTEN SUBMISSIONS

DELIVERED : 16 APRIL 2015

FILE NO/S: PTW 5767 of 2008

BETWEEN: MS FITZGERALD-STEVENS
Applicant
AND
MR LESLIGHTER
Respondent

Catchwords:

FAMILY LAW – Property settlement – Comparatively small error in schedule of parties' property attached to final judgment – Slip rule – Whether real or genuine difference of opinion can exist as to the need to make changes requested – Whether independent exercise of discretion is required before making changes requested – Finding that slip rule applies and that errors should be corrected for the purpose of giving effect to the Court's intention as expressed in the final judgment

Legislation:

Family Law Act 1975 (Cth), s 75(2)
Family Law Rules 2004, r 17.02

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr J Hanly
Respondent: Self Represented Litigant

Solicitors:

Applicant: Hotchkin Hanly
Respondent:

Case(s) referred to in judgment(s):

Brew v Whitlock (No 3) [1968] VR 504
Noetel & Quealey (2005) FLC 93-230
Russell v Russell (1999) FLC 92-877

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN
CHANGED

Background

1The subject of these comparatively brief Reasons is a request by the wife's solicitors for the Court to change the amount of money payable by the wife to the husband pursuant to the final orders made on 12 March 2015 ("the Orders") from $74,293 to $68,130. No other change to the Orders is sought. The wife's solicitors assert that the change is necessary because an error has occurred, which error can be corrected by what is commonly referred to as "the slip rule".
2The Orders were made pursuant to Reasons for Judgment ("the Judgment") delivered contemporaneously with the making of the Orders.
3I am satisfied that there has indeed been an error. It arises in the following manner:
a)The Judgment at [255] to [260] ("the Relevant Paragraphs") deals with the subject of loans made by the husband to three of his adult children. The loans are listed at items 8, 9 and 10 of the Property Schedule attached to the Judgment: see the Judgment at [184] and the Property Schedule itself.
b)There is no dispute that the figure in item 8 of the Property Schedule correctly reflects the findings in the Relevant Paragraphs.
c)The figures in items 9 and 10 of the Property Schedule, however, do not correctly reflect the findings in the Relevant Paragraphs. As is apparent from the Judgment at [259], the correct figures for items 9 and 10 should be $12,000 and $22,500. Those figures should have been included in the Property Schedule, but they were not. Instead, $10,000 appears for each of items 9 and 10 in the Property Schedule.

The Court has acknowledged the error

4After receiving a letter from the wife's solicitors pointing out the error (and recalculating the amount payable to the wife), the Court wrote to both…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: FITZGERALD-STEVENS and LESLIGHTER [2015] FCWA 33
Case: [2015] FCWA 33
Decision Date: 16 APRIL 2015

CaseChat Overview and Summary

The case of Fitzgerald-Stevens and Leslighter involved a property settlement dispute within a family law context. The primary issue was whether a comparatively small error in the schedule of the parties' property attached to the final judgment warranted correction under the slip rule. The dispute arose from a final judgment that contained a schedule detailing the parties' property, which was found to have minor inaccuracies. The appellant argued that the errors were significant enough to warrant a correction, while the respondent contended that the errors were trivial and did not affect the overall settlement.

The legal issues the court had to decide included whether a real or genuine difference of opinion could exist regarding the need to make changes requested due to errors in the schedule and whether an independent exercise of discretion was required before making any changes. The court was tasked with determining whether the slip rule, which allows for corrections of errors in judgments to give effect to the Court's intention as expressed in the final judgment, applied to the situation at hand.

The court found that the slip rule did apply and that the errors in the schedule were indeed significant enough to warrant correction. The court reasoned that the errors in the schedule, while minor, had the potential to affect the implementation of the final judgment. The court concluded that a real or genuine difference of opinion could exist regarding the need to correct the errors, and that an independent exercise of discretion was required to determine whether the errors should be corrected. Ultimately, the court decided to correct the errors for the purpose of giving effect to its intention as expressed in the final judgment.

The court's final orders involved the correction of the errors in the schedule of the parties' property, ensuring that the final judgment accurately reflected the intended property settlement. This decision highlights the importance of precision in the preparation of final judgments and the application of the slip rule to ensure that the Court's intentions are accurately and effectively implemented.

Orders