G and G
[2001] FMCAfam 101
•21 August 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| G & G | [2001] FMCA fam 101 |
| FAMILY LAW – Property – Slip rule application – Mistake apparent on the face of judgment – Mistake rectified. |
| Applicant: | J A M G |
| Respondent: | L M G |
| File No: | ZP 1855 of 2001 |
| Delivered on: | 21 August 2001 |
| Delivered at: | Parramatta |
| Hearing Date: | 21 August 2001 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Solicitor for the Applicant: | Mr Thompson |
| Solicitors for the Applicant: | Newnhams 7/122 Castlereagh Street, Sydney 2000. DX 665 Sydney NSW |
| Solicitor for the Respondent: | Mr Brown |
| Solicitors for the Respondent: | Michael Brown 6/153 George Street, Liverpool 2170. DX 5038 Liverpool NSW |
ORDERS
Pursuant to the slip rule I order that the bracketed words “excluding the antiques” found in the final sentence of paragraph 65 are excised from the Reasons for Judgment delivered on 25 July 2001.
IT IS FURTHER ORDERED BY CONSENT
I vary order 1 and delete the word “H P & G” and insert the words “G T and M B”.
I amend orders 9(1) and 10(1) and delete the words “calendar month” and insert the words “four week calendar”.
All other applications are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP 1855 of 2001
| J A M G |
Applicant
And
| L M G |
Respondent
REASONS FOR JUDGMENT — EX TEMPORE
The proceedings
This is an application by the husband seeking to amend orders made in this matter on 25 July 2001. The orders were made after a defended hearing. They relevant orders were as follows:
(1)THAT forthwith upon the making of these orders both the husband and the wife do all acts and things necessary and give all directions to H P and G to forthwith disperse the sale proceeds of the property at B as follows:
(a)In the sum of $32,492.65 to the wife; and
(b)The balance to the husband.
(2)Unless otherwise specified in these orders:
(a)Each party be solely entitled to the exclusion of the other, of all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker, whose age or working future provides the conditions of payment out of such entitlements;
(b)Each party is solely liable for and indemnifies the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
(3)In the event that either party fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders and pursuant to s 106, a Registrar or Deputy Registrar of the Federal Magistrates Court of Australia is hereby appointed to execute all deeds, documents or instruments in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to such deeds, documents and instruments.
(4)That the children R G born 5 January, 1986 (“R”) and S G born 16 April, 1998, (“S”) live with the wife, L M G.
(5)Contact is structured on a four week calender commencing on the weekend 28 and 29 July 2001.
(6)During holidays, until 2003, weekend contact is suspended other than during the Christmas school holidays. Although the weekend contact is suspended the weekends continue to run for the purpose of calculating the next period of contact.
(7)Commencing 2003 weekend contact is suspended during school holidays.
(8)School holidays shall:
(a)Commence at 10.00am the first Saturday after the gazetted term is completed;
(b)Finish at 3.00pm on the day before school resumes;
(c)Pupil free days are deemed to be school holidays;
(d)The children are to be returned at 3.00pm at the end of any holiday contact, unless otherwise provided in these orders.
Contact orders relating to R and S G
(9)THAT the father, U M, shall have contact with the children as follows:
(a)From 9.00 am Saturday until 4.00 pm Sunday on the first weekend of each calendar month and during school holidays by arrangement with the mother;
(b)From 9.00 am until 4.00 pm on Father’s Day;
(c)Otherwise at dates and times agreed between the mother and father.
(10)THAT J G have contact to the children as follows:
(a)From 4.00 pm Friday until 4.00 pm Sunday on the third weekend of each month until the commencement of 2003;
(b)For the four days during each school holiday period;
(c)Until 2003 for an additional four-day period during the Christmas school holidays, the dates and times to be agreed between the husband and wife;
(d)Commencing from the Easter 2003 school holidays, for the first half of each of the school holiday (excluding Christmas holidays) periods in years ending in an odd number, and the second half in each school holiday period for years ending in an even number, alternating annually thereafter;
(e)Commencing the 2003/2004 Christmas school holidays for two weeks immediately before or after the wife's contact whichever is appropriate.
(f)In the event that contact occurs on Mother’s Day, that contact is suspended and the children are to be returned to the wife by 6.00 pm on the Saturday evening immediately prior to Mother’s Day.
Contact orders relating to B & M
(11)That Order 3 made at Campbelltown Local Court on 16 November 2001 is discharged.
(12)THAT the wife have contact to the children B and M as follows:
(a)From 4.00 pm Friday until 6.00 pm Sunday on the second and fourth weekend in each four-week cycle;
(b)For the second half of each school holiday period;
(c)On Mother’s Day from 9.00 am till 6.00 pm;
(d)For one half of the Christmas school holidays, commencing at 12 noon on 26 December 2001, 12 noon 24 December 2002 and thereafter alternating with the first half of the Christmas school holidays commencing in the second half of the 2003/2004 school holidays, alternating annually thereafter.
(13)THAT the father is responsible for collecting and returning the children for the purposes of his contact.
(14)THAT the husband is responsible for collecting and returning the children for the purposes of his contact with R and S and the mother’s contact with M and B.
(15)That the Court declares pursuant to s 69VA of the Family Law Act 1975 that U M is the father of R G born 5 January 1996 and S G born 16 April 1998.
(16)That the mother L G, and the father U M, sign all documents and do all things necessary to cause the Registry of Births, Deaths & Marriages to record that father on the birth certificates of R G born 5 January 1996 and S G born 16 April 1998.
(17)THAT all outstanding applications are dismissed.
(18)THAT all exhibits be returned at the expiration of one calendar month unless an appeal is lodged.
(19)THAT the solicitors who caused any subpoena to issue uplift the documents produced in answer to the subpoena and return them to their owner within seven (7) days of the date of these orders.
The application
The application is made pursuant to the slip rule. The primary order sought is an order that order 1(a) be amended and that the amount of $32,492.65 is excised and replaced by $27,360.46. There are two other orders sought pursuant to the slip rule. Those latter orders relate to parenting orders. They are to be amended by consent. The wife opposes the application made in relation to the property order. She too submits that there is error to be addressed that comes within the meaning of "slip rule" discussed in the decided cases. The mistake she submits is contained in the reasons for judgment in the final sentence of paragraph 65 of the reasons. The wife submits that the slip is constituted by the inclusion of the bracketed words “excluding the antiques”.
Helpfully, both parties provided written submissions prior to the hearing. Exhibit A contains the applicant husband’s submissions in relation to the slip:
1.In paragraph 50 on page 15 the net pool of assets is found to be$87,317 with the antique furniture being found to be valued at $14,000 which is included in the net pool of $87,317.
2.In paragraphs 65 and 66 on page 22 a finding is made that the net assets (excluding the antiques) should be divided as to 62 per cent to the husband and 38 per cent to the wife. The net assets excluding the antiques total $73,317.
3.Applying the percentage of 38 per cent, the amount for the wife to receive is $27,860.46 and not the amount referred to in paragraph 67 on page 23. Accordingly, taking into account the $500 of assets the wife has, the payment should be the sum of $27,360.46.
4.The amount of $32,992.65 referred to in paragraph 67 by way of mathematics represents 45 per cent of the net assets excluding the antiques.
These were supplemented this morning by oral submissions. The gravamen of the argument was reinforced by reference to the findings contained in paragraph 55 of the reasons being the words “neither party has enjoyed the antique furniture and this asset should be treated differently to the other identified assets”.
Exhibit B contains the wife’s written submissions:
1.The husband’s application is based upon the premise that Her Honour did not intend the result because the amount of $32,492.65 payable to the wife is apparently inconsistent with the statement in paragraph 55 of the judgment “I find that it is appropriate that the parties nett assets (excluding the antiques) should be divided as to 62 per cent to the husband and 38 per cent to the wife.
2.It is not possible and indeed presumptuous for one to know Her Honour’s intentions. The best one can do is to infer what construction of the Judgment is most internally consistent and reasonable.
3.The construction the husband’s attorney advances is that Her Honour having made certain findings as to contribution at 75(2) factors found that the result did not reflect a fair and equitable distribution of assets and reduced the wife’s share on that basis in paragraph 65.
It is submitted that this is improbable given that:
a.Nothing in paragraph 65 indicated that Her Honour was in fact doing that:
b.In the first two sentences of paragraph 66 Her Honour says that the distribution (there is no mention of exclusion of the antiques) of 62 per cent to the husband and 38 per cent to the wife “is just and equitable within the meaning of 79(2)”.
c.The husband’s submission confuses the method of calculation as set out in paragraph 50ss with the assessment of whether the overall result is just and equitable in paragraph 65 and 66.
d.It is submitted that to the extent that there is any ambiguity in the judgment, it is most simply solved by the removal of the words “excluding the antiques” from paragraph 65. To the reader, who does not have the benefit of knowing Her Honour’s thoughts on the matter, this would seem more logical than embarking on what amounts to a substantial re-write of the Judgment.
Mr Brown also made supplementary oral submissions. He forcefully submitted that the section 79(2) exercise is clear in that the outcome of the section 79(4) and section 75(2) exercise is not further adjusted pursuant to section 79(2). He submits that what paragraphs 65 and 66 highlight is that the outcome of section 79(4) and section 75(2) is a just and equitable one and it is not then further adjusted in the reasons.
Relevant law
The relevant law in these matters has been recently summarised by the Full Court of the Family Court in the matter of Milham v Stanford[1]. The Full Court gives a very helpful review of the decided cases and included in the reasons is a statement of the operation of the rule by His Honour, McHugh J, in Storey and Keers Pty Limited v Johnson [2] where His Honour said:
"The rationale of the slip rule also requires that an omission or mistake should not be treated as accidental if the proposed amendment requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist: cf Brew v Whitlock (No 3) (at 506) In general the test of whether a mistake or omission is accidental is that applied by Lord Hershall in Hatton v Harris (at 558.) If the matter had been drawn to the court’s attention would the correction at once have been made.”
[1] 18 May 2001 (unreported)
[2] 1987 9 NSWLR 446 at 453
The rule is clearly one that is very wide in its scope.
In paragraph 23 of the Full Court’s decision their Honours quote His Honour Kirby J, summary of the operation of the rule for Family Court purposes in DJL v Central Authority.[3] Kirby J held:
"Some accidental slips or omissions are capable of correction at common law. [Ainsworth v Wilding [1896] 1 Ch 673 at 677 per Romer J; R v Cripps; Ex parte Muldoon [1984] QB 686 at 695] This facility is now commonly replaced by provisions in rules of court. In the Family Court of Australia, that is where the ‘slip rule’ may be found. [Family Law Rules O 31, r 6] Ordinarily, it is limited to correction of the formal record for accidental mistakes or omissions of no substantive significance. Similarly, when it can be shown that a court order does not correctly reflect the court’s decisions as contained in its reasons, rectification of the order is viewed as nothing more than a mechanical task. [Rajunder Narain Rae v Bijai Govind Sing (1839) II Moo Ind App 181 at 216, 222-3; 18 ER 269 at 282, 285 per Lord Brougham; Ainsworth v Wilding [1896] 1 Ch 673 at 677; Thynne v Thynne [1955] P 272 at 313] Thus where a party has been wrongly named or misdescribed [Thynne v Thynne [1955] P 272 at 314] or is shown to have died or to be non-existent [MacCarthy v Agard [1933] 2 KB 417 at 427] corrections may be made. Where, without alteration, it is possible to repair an oversight and prevent injustice by making a supplementary order, the existence of a previously perfected order will be no barrier. [Preston Banking Co v William Allsup & Sons [1895] 1 Ch 141 at 144; Bailey v Marinoff (1971) 125 CLR 529 at 540].”
[3] 170ALR 659 at 685
Conclusion
Is there then an error and does it arise from an apparent mistake or omission? Both parties’ agree that there is. They agree that the amendment required is one that is within the proper application of the slip rule. I agree with them. That they disagree on the nature of the error does not undermine the rule’s applicability in my view. Both agree that this is so.
The relevant findings in this matter are primarily those contained in paragraph 65 and 66 of the reasons. Those findings build on the written and oral findings identified in Mr Thompson’s submissions. In addition, it is necessary to also have regard to the findings made in paragraph 50 of the reasons. This paragraph contains the findings as to the identity and value of the assets and liabilities. Moving sequentially through the judgment the next finding that is relevant is that contained in paragraph 55 to which I have already made reference. Next, that contained in paragraph 62 where the court finds the contributions excluding the antiques is as 70 per cent by the husband and 30 per cent by the wife.
Then the reasons identify the outcome of the section 75(2) exercise. In paragraph 64 the reasons identify that the appropriate adjustment is a 15 per cent adjustment to the wife. The next part of the reasons contain the evaluation pursuant to section 79(2). Is the outcome a just and equitable outcome within the meaning of the Act? It is that part of the reasons that is the focus of the applications today.
In the first sentence of paragraph 65, the reasons restate the findings made in paragraphs 60 and 62. In the penultimate sentence of paragraph 65 the judgment restates, by incorporation, the findings made as a consequence of the section 75(2) exercise. That is the finding found in paragraph 64.
The next two sentences are those sentences that deal with the outcome consequential on those earlier findings. The final sentence of paragraph 65 includes the words “excluding the antiques” and it then clearly adjusts the form of the findings in percentage terms. It moves from the 45/55 per cent of the lesser pool, that being the asset pool excluding the antiques, and then applies that same formula to the entire asset pool found in paragraph 50 of the reasons. Nowhere in the judgment, as Mr Brown submitted this morning, is there any finding that would support the submission that having concluded a 45/55 percent distribution of the net assets the court then purported to depart from that finding and make a further adjustment pursuant to section 79(2). The judgment does not support the submission made on the husband’s behalf.
What is apparent from the first sentence of paragraph 66 of the reasons is that contained therein is the key and ultimate finding that the court made in relation to the outcome of the property proceedings. It flows from this that the inclusion of the words “excluding the antiques” in the final sentence of paragraph 65 have been included in error. This mistake must be rectified pursuant to the slip rule.
There is a deceptive attraction in the submission contained in paragraph four of the husband’s submission. He points out that the figure included in the reasons at paragraph 67 is 45 per cent of the net assets excluding the antiques. That does not in the absence of a specific finding mean that there was the adjustment under section 79(2). For the submission to succeed that would have been necessary. Otherwise there is no explanation at all for an apparent reduction from 45/55 per cent of the lesser asset pool to the final percentage ordered.
I am satisfied that I should amend the judgment as submitted by the respondent wife and will order accordingly.
For these reasons I make the orders identified at the commencement of this judgment.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date:
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