HAINS & HAINS (No.2)
[2005] FMCAfam 280
•23 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HAINS & HAINS (No.2) | [2005] FMCAfam 280 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Slip Rule. |
| Federal Magistrates Court Rules 2001, r.16.05 |
| Milham v Stanford (2001) FLC 93-073 DJL v Central Authority (2000) FLC 93-015 Elyard Corporation Pty Ltd v DDB Needham (Sydney) Pty Ltd (1995) 133 ALR 206 |
| Applicant: | renae ann hains |
| Respondent: | christopher james hains |
| File Number: | PAM 4470 of 2003 |
| Judgment of: | Scarlett FM |
| Hearing date: | 23 May 2005 |
| Date of Last Submission: | 23 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 23 May 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Coleman and Greig |
| Solicitors for the Respondent: | Ian Bullock Partners |
ORDERS
Order (5) (c) made on 21 February 2005 is varied pursuant to rule 16.05(2) (e) of the Federal Magistrates Court Rules 2001 by adding the word “or” after the words “these orders” and before the words “as a result of” so far as to read:
That the father’s liability to pay child support is not to be reduced as a consequence of payments made pursuant to these orders or as a result of the purchase by him of school uniforms, sports uniforms, footwear or other clothing except where the father purchases such items with the prior written consent of the mother.
Costs certificate to issue.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAM 4470 of 2003
| renae ann hains |
Applicant
And
| christopher james hains |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The application before the Court is an application to vary an order made in respect of a departure application under the Child Support (Assessment) Act. The application is sought on the basis of the “slip rule”. The applicant says that order (5) (c) made on 21 February 2005 reflects a slip made by the Court which, by leaving out the word “or”, which would have an unintended consequence as far as the parties are concerned. Mr Bullock for the respondent father opposes the order. The order that was made was made as a result of proceedings dealing with both parenting issues and matters under the Child Support (Assessment) Act. This particular order relates to a departure order under the Child Support (Assessment) Act. The order where it is alleged there is an error is order (5)(c) which says:
The administrative assessment of child support in respect of the said children is departed from as follows:
c) that the father's liability to pay child support is not to be reduced as a consequence of payments made pursuant to these orders as a result of the purchase by him of school uniforms, sports uniforms, footwear or other clothing, except where the father purchases such items with the prior written consent of the mother.
Ms Parkin for the applicant mother says that it appears that the word "or" has been left out so that the order should read that the father's liability to pay child support is not to be reduced as a consequence of payments pursuant to these orders or as a result of the purchase by him of school uniforms, sports uniforms, et cetera.
Mr Bullock for the respondent, as I said, opposes the application and says that this is not a matter to which the slip rule applies. He refers me to the decision of the Full Court of the Family Court in Milham v Stanford (2001) FLC 93-073. The Full Court there referred to a case where it was alleged that the trial Judge had misapprehended the application of and the extent of the slip rule. There were some orders made which the wife said were more than just amended an accidental slip or omission, it instead reflected a substantial amendment of the orders that were inconsistent with the Court's orders of the earlier hearing. In their decision, which was an unanimous decision of the Full Court, their Honours referred at paragraph 23 to the decision of Kirby J in the High Court decision of DJL v Central Authority (2000) FLC 93-015 at 87280; 170 ALR 659 at page 685. His Honour said there:
[93] Some accidental slips or omissions are capable of correction at common law. This facility is now commonly replaced by provisions in the rules of Court. In the Family Court of Australia that is where the slip rule may be found, Family Law Rules, order 31 rule 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. Thus, where a party has been wrongly named or misdescribed or is shown to have died or to be non-existent, 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.
Their Honours also considered the decision of Lockhart J of the Full Court of the Federal Court in Elyard Corporation Pty Ltd v DDB Needham (Sydney) Pty Ltd (1995) 133 ALR 206. At pages 209 and 210 his Honour said:
Traditionally a Court's power to correct errors in orders arising from accidental slips or omissions is conferred by an express rule of Court but it exists where the provision is made by express rule or not. The slip rule is a qualification of the rule that a Court may not vary a duly passed and entered order which brings a proceeding to an end because it is obviously desirable that the litigation should be brought to an end. The rule is very wide in its scope but it is not available as a matter of course. Courts have an inherent or implied jurisdiction to amend judgments which do not correctly state what is actually decided and intended.
Their Honours also pointed out that Lockhart J went on to say at pages 210 to 211:
The slip rule applies where the proposed amendment is one upon which no real difference of opinion can exist. It does not apply where the amendment is a matter of controversy, nor does it extend to mistakes that are the consequences of a deliberate decision.
Those, to my mind, in that very helpful judgment with respect, are the principles that I should consider today. I am mindful of the fact, as Mr Bullock has pointed out to me, that the decision in Milham v Stanford was decided on an earlier version of the Family Law Rules which vary slightly from the Family Law Rules as they apply today. Against this of course, Ms Parkin has drawn my attention to the fact that that part of the Family Law Rules does not apply to the exercise of jurisdiction by the Federal Magistrates Court.
The rule which is appropriate, is rule 16.05, sub-rule (2). That sub-rule says:
The Court may vary or set aside its judgment or order after it has been entered if: (a) the order is made in the absence of a party; or (b) the order is obtained by fraud; or (c) the order is interlocutory; or (d) the order is an injunction or for the appointment of a receiver; or (e) the order does not reflect the intention of the Court; or (f) the party in whose favour the order is made consents.
It appears to me, with respect, that rule 16.05(2) (e) is the appropriate rule for consideration and that I must therefore look at whether the order made does or does not reflect the intention of the Court.
Ms Parkin has asked me to re-read the judgment which I handed down on 21 February 2005, whose citation is (2005) FMCAfam 61. The decision that was made reflected a variety of matters. There were parenting issues and there were matters under the Child Support (Assessment) Act. The child support departure application was covered in paragraphs 54 to 61 inclusive. In paragraph 54 I referred to the orders sought by the applicant mother which were summarised by her counsel of the time, Ms Falloon. At page 12 of the judgment I referred to the particular order that was sought in these terms:
That the father's liability to pay child support shall not be reduced as a consequence of payments made pursuant to these orders as a result of the purchase by him of school uniforms, sports uniforms, footwear or other clothing for the children except where such items are purchased with the prior written consent of the mother.
At paragraph 55 I went on to refer to earlier consent orders made by the Family Court of Australia at Sydney on 11 Decision 2001. I noted that order 14 provided that the children were to attend a Catholic school and that paragraph 22 of the terms of settlement included two notations which I will quote:
a) It is agreed between the parties that the child support payment to the mother is not to be reduced on accountant of the children's school fees and expenses paid by the father.
b) The father to pay 70 per cent of school fees and the mother to pay 30 per cent. Both parties to equally share the expenses and additional costs associated with the children's educational expenses, including excursions above $50, clothing and school books.
In the judgment, I then went on to refer to matters which were relevant at the trial but are not relevant at this stage, in paragraphs 56 through to 60. I then went on to say at paragraph 61:
Taking all these circumstances into account, I am satisfied that it would be just and equitable as regards the children, the mother and the father to make the orders sought in the departure application. I am satisfied that it would be otherwise proper to do so.
I should make clear that the intention in order 61 was not to bind the Court as to the particular orders to be made but to set out the fact that all of the considerations in section 117 of the Child Support (Assessment) Act had been taken into account, which was why I was making a departure application.
That then gets back to whether it was the intention of the Court that the order should or should not include the word "or" as submitted by Ms Parkin. The danger that she sees is that it could lead to an application to reduce child support payments as a result of other matters, including school fees. I have read through the judgment carefully and I have read through the orders that are made.
I am also mindful of the provisions of the appropriate rule. In my view, the applicant's contention is correct. It is clear to me that the order as it appears in order (5) (c) does not reflect the intention of the Court. The intention was never to bring about a consequent reduction of child support payments for other matters, and the reference in the judgment at paragraph 55 was to take into account what appeared to be a given situation that child support payments to the mother were not to be reduced on account of the children's school fees and expenses paid by the father. I am satisfied that the error is an obvious error, it is a typographical error. As so often happens in judgments which are reserved, the preparation of these matters has been done by myself rather than by my staff and it is an error therefore for which I take full responsibility and for which I can only apologise to the parties. None of us is perfect, as I have shown in this matter today.
Therefore, I am obliged to grant the application and after the words "these orders" in order (5) (c) the word "or" will be added.
It does seem to me that this is a purely a slip that I made and it is most unfortunate that the parties have been put to this expense. But to my mind, I think it is appropriate for a costs certificate to be issued in the circumstances and I will otherwise remove the application from the list of cases awaiting finalisation.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 7 June 2005
0