Harrell and Nesland (No.3)

This matter concerned an application to vary an order made by Judge Egan on 19 April 2018, which had been amended on 20 April 2018. The respondent husband sought the variation pursuant to rule 16.05(2) of the Federal Circuit Court Rules 2001, arguing that the original order either did not reflect the Court's intention or contained an accidental omission regarding the assessment of costs. The applicant wife had also filed a response seeking various orders, including the dismissal of orders sought by the respondent.

The primary legal issue before the Court was whether the previous order, which had been entered, should be varied to include a reference to taxation of costs under Chapter 19 of the Family Law Rules. This required the Court to consider the grounds for varying an entered judgment or order under rule 16.05(2) of the Federal Circuit Court Rules, specifically whether the original order failed to reflect the Court's intention or contained a clerical mistake or accidental omission.

The Court found that it was not the intention of the Court to deny the respondent husband the benefit of an order for the assessment of costs. The omission of a specific reference to taxation was considered an accidental slip or omission, falling within rule 16.05(2)(h). Consequently, the Court varied the previous order to reflect the intention that costs be referred to taxation. The Court also dismissed the orders sought by the applicant in her response filed on 10 May 2019.

The Court ordered that paragraphs 1 and 2 of the order of 19 April 2018 (as amended) be varied to provide for costs to be referred to taxation under Chapter 19 of the Family Law Rules. Paragraphs 1 to 6 of the orders sought by the applicant in her response filed on 10 May 2019 were dismissed, and there was no order as to costs.