Legal Research
Cases
Janzen & Naish (No 2)

Janzen & Naish (No 2)

Case [2024] FedCFamC2F 607 16 May 2024

Jurisdiction

Discovery & Disclosure

Res Judicata

Family Law Act 1975 (Cth)

Family Law

No judgment structure available for this case.

Type to search within this case.

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Janzen & Naish (No 2) [2024] FedCFamC2F 607

File number(s): CAC 119 of 2021

Judgment of: JUDGE W J NEVILLE

Date of judgment: 16 May 2024

Catchwords: FAMILY LAW - PRACTICE & PROCEDURE – supplementary reasons regarding whether to re-open or not to re-open (that is the question) – arithmetical errors in Husband’s balance sheet used by the Court in judgment but which were not brought to Court’s attention until later Directions Hearing post-judgment – judgment not “perfected” – considerations regarding use of “slip-rule” compared to re-opening – evidence re-opened on Court’s own motion to correct inadvertent error and to admit evidence of which the Court was unaware at the time of preparing judgment – parties provided written submissions regarding re-opening – later agreed balance sheets from each party admitted into evidence – no need to re-visit or re-consider findings by the Court on the evidence at trial.

Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Part 10.4; rr.10.13, 10.14

Cases cited:
Autodesk Inc v Dyason (No.2) (1993) 176 CLR 300

Burrell v The Queen (2008) 238 CLR 218

De L v Director-General, NSW Department of Community Services (No.2) (1997) 190 CLR 207

Dickons v Dickons (2014) 50 Fam LR 244

DJL v Central Authority (2000) 201 CLR 226

Ezra Abrahams Pty Ltd v Milburn [2017] VSCA 355

FDY Investments Pty Ltd v Promptair Pty Ltd [2017] FCA 1097

Janzen & Naish [2024] FedCFamC2F 309

Janzen & Naish [2024] FedCFamC1A 75

Racing New South Wales v Racing Victoria Ltd [2024] NSWSC 147

L. Shaddock & Associates Pty Ltd v Council of the City of Parramatta (1983) 151 CLR 590

Smith v NSW Bar Association (1992) 176 CLR 256

Division: Division 2 Family Law

Number of paragraphs: 82

Date of hearing: 23 April 2024
8 May 2024 (last submissions)

Place: Canberra

Solicitors for the Applicant C Law Firm

Solicitors for the Respondent Robinson + McGuinness Family Law

ORDERS

CAC 119 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS JANZEN
Applicant

AND:
MR NAISH
Respondent

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

16 MAY 2024

THE COURT ORDERS THAT:
1.The evidence be reopened for the purpose of
(a)admitting into evidence the November 2023 balance sheets of the parties,
(b)assigning Exhibit numbers respectively, AW1 and RH1, and
(c)annexing those Exhibits to these reasons.

2.Exhibit RH1 be substituted for the balance sheet set out at paragraph [202] of the principal reasons of 14^th March 2024.
3.Pursuant to rule 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the final percentage figure at paragraph [213] of the principal reasons of 14^th March 2024 be amended to 37% to the Wife, and 63% to the Husband.

AND IT IS NOTED THAT these Orders have been amended pursuant to Rule 10.13(1)(g) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Note:…

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.

Continue reading Janzen & Naish (No 2)

Details

AGLC: Janzen & Naish (No 2) [2024] FedCFamC2F 607
Case: [2024] FedCFamC2F 607
Decision Date: 16 May 2024

CaseChat Overview and Summary

This case involved a dispute between Ms Janzen and Mr Naish, with the primary issue being the reconsideration and correction of financial statements used in the initial judgment. The Federal Circuit and Family Court of Australia was tasked with determining whether to reopen the evidence to correct arithmetical errors in the Husband's balance sheet, which were identified post-judgment. The court was also required to decide whether the evidence should be reopened to admit later balance sheets from both parties and whether this required revisiting the findings made during the trial.

The court examined the application to reopen the evidence to correct inadvertent errors and to admit evidence that was previously unknown to the court at the time of preparing the judgment. The court noted the existence of the "slip-rule" and its potential application compared to the decision to reopen the evidence. After considering the submissions from both parties and the newly admitted balance sheets, the court concluded that there was no need to revisit or reconsider the findings made on the evidence at trial. The arithmetical errors were corrected, and the later balance sheets were admitted into evidence.

The court ordered the evidence to be reopened to admit the November 2023 balance sheets of the parties, assign exhibit numbers to these sheets, and annex them to the reasons. The balance sheet set out in the principal reasons was substituted with the updated balance sheet. Additionally, the final percentage figure was amended to reflect the corrected calculations, with 37% attributed to the Wife and 63% to the Husband.

These orders were made to correct the errors in the initial judgment and to ensure that the financial outcomes were accurately reflected. The court's decision underscores the importance of precision in financial assessments within family law proceedings and the court's willingness to correct inadvertent errors to achieve just outcomes.

Orders

Orders of the court

CAC 119 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS JANZEN

Applicant

AND:

MR NAISH

Respondent

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

16 MAY 2024

THE COURT ORDERS THAT:

1. The evidence be reopened for the purpose of

(a) admitting into evidence the November 2023 balance sheets of the parties,

(b) assigning Exhibit numbers respectively, AW1 and RH1, and

2. Exhibit RH1 be substituted for the balance sheet set out at paragraph [202] of the principal reasons of 14th March 2024.

3. Pursuant to rule 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the final percentage figure at paragraph [213] of the principal reasons of 14th March 2024 be amended to 37% to the Wife, and 63% to the Husband.

AND IT IS NOTED THAT these Orders have been amended pursuant to Rule 10.13(1)(g) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Janzen & Naish (No 2) [2024] FedCFamC2F 607

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 26 of 26 shown

Janzen & Naish
[2024] FedCFamC1A 75 Para 4

…the Wife’s costs, certainly at trial, and perhaps likely on appeal, were being paid for by her employer. [2] See Janzen & Naish [2024] FedCFamC1A 75.…
Racing New South Wales v Racing Victoria Ltd
[2024] NSWSC 147 Para 3

…cing Victoria Ltd , at [5] – [10], Rees J set out relevant principle in this regard as follows:[9] [9] Racing New South Wales v Racing Victoria Ltd [2024] NSWSC 147. [5] The first task is to construe the discovery orders made by Ball J. Court orders are interpreted according to the ordinary rules of construction, w…
Janzen & Naish
[2024] FedCFamC2F 309

…a Abrahams Pty Ltd v Milburn [2017] VSCA 355 FDY Investments Pty Ltd v Promptair Pty Ltd [2017] FCA 1097 Janzen & Naish [2024] FedCFamC2F 309 Janzen & Naish [2024] FedCFamC1A 75 Racing New South Wales v Racing Victoria Ltd [2024] NSWSC 147 L. Shaddock & Associates Pty Ltd v Council of the City of Parramatta (1983) 151 C…
Laundy Hotels (Quarry) Pty Ltd v Dyco Hotels Pty Ltd
[2023] HCA 6 Para 3

…inary rules of construction, in the context of commercial contracts, were recently restated in Laundy Hotels (Quarry) Pty Ltd v Dyco Hotels Pty Ltd (2023) 407 ALR 613 at [27]: “It is well established that the terms of a commercial contract are to be understood objectively, by what a reasonable businessperson would ha…
Lim v Comcare
[2019] FCAFC 104 Para 3

…, especially for the party bound, dictate that the orders should so far as reasonably practicable, be self-standing...” [10] In Lim v Comcare (2019) 165 ALD 217, the Full Federal Court considered that regard may be had to the reasons for the court order “whether the orders are ambiguous or not”: at [40] (per McKerrache…
Ezra Abrahams Pty Ltd v Milburn
[2017] VSCA 355 Para 4

…c grounds set out in Promptair were almost identical to those set out by the Victorian Supreme Court of Appeal in Ezra Abrahams Pty Ltd v Milburn [2017] VSCA 355 at [45] – [47]. The Court of Appeal’s detailed discussion, which follows its outline of principle, refers to multiple other authorities as well. In the r…
Cherry v Steele-Park
[2017] NSWCA 295 Para 3

…extrinsic material may be considered in the contractual context, Leeming JA (Gleeson and White JJA agreeing) explained in Cherry v Steele-Park (2017) 96 NSWLR 548 that the ambiguity of a contract may only be revealed once the surrounding circumstances are considered: at [68]-[86]. That is, ambiguity is a “conclusion,…
FYD Investments Pty Ltd v Promptair Pty Ltd
[2017] FCA 1097 Para 4

…cts; and (e)mistaken apprehension of the law. [19] The summary here is taken from White J’s decision in FDY Investments Pty Ltd v Promptair Pty Ltd [2017] FCA 1097 at [30] – [33]. The same basic grounds set out in Promptair were almost identical to those set out by the Victorian Supreme Court of Appeal in Ezra Abr…
Wende v Horwath (NSW) Pty Ltd
[2014] NSWCA 170 Para 3

…CJ and Jenkinson J agreeing). Extrinsic materials may be consulted where ambiguity exists on the face of the orders: Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674 at [60] (Basten JA). Less settled is whether extrinsic materials may be taken into account absent ambiguity: Perry Herzfeld and Thomas Prince, Interpre…
Burrell v The Queen
[2008] HCA 34 Para 23

…), depends on the nature of the error. Put another way, the error to be corrected determines the Order required.[14] [13] Burrell v The Queen (2008) 238 CLR 218 at [19] – [21]. [14] See generally, Smith v NSW Bar Association (1992) 176 CLR 256 at 265 – 267 (Brennan, Dawson, Toohey Gaudron JJ). Issue 4: to re-open or…
Hamersley Iron Pty Ltd v National Competition Council
[2008] FCA 598 Para 3

…not”: at [40] (per McKerracher, Markovic and Snaden JJ). See likewise Hamersley Iron Pty Ltd v National Competition Council (2008) 247 ALR 385; John Tarrant, “Construing Undertakings and Court Orders” (2008) 82 ALJ 82 at 84-85.…
Athens v Randwick City Council
[2005] NSWCA 317 Para 3

…Court for making the order because they form part of a context in which the order was made.” [9] In Athens v Randwick City Council (2005) 64 NSWLR 58, Santow JA explained at [129], [130] and [137] (emphasis in original): “The purpose of a court order is, ordinarily, to give effect to a judgment. The judgment is not…
DJL v Central Authority
[2000] HCA 17 Para 22

…s, L. Shaddock & Associates Pty Ltd v Council of the City of Parramatta (1983) 151 CLR 590 especially at 597; DJL v Central Authority (2000) 201 CLR 226.…
Yates Property Corporation Pty Ltd v Boland
[1998] FCA 1605 Para 3

…context of construing orders, Drummond J (Sundberg and Finkelstein JJ agreeing) observed in Yates Property Corporation Pty Ltd v Boland (1998) 89 FCR 78 at 78: “It is impermissible, in my view, as well as being quite unrealistic to attempt to read, that is, to understand, an order in isolation from the context of t…
De L v Director-General, NSW Department of Community Services (No 2)
[1997] HCA 14 Para 25

…aution, and the Court's decision turned on the important and unusual facts of that case; b. The case of De L v Director-General (1997) 190 CLR 207 was a consideration by the High Court, being "a final court of appeal" at [20] and, whilst the orders had been pronounced, they had not been entered in the record [24] and…
Repatriation Commission v Nation, L
[1995] FCA 355 Para 3

…f the judge who made the order: Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 503 (Windeyer J); Repatriation Commission v Nation (1995) 57 FCR 25 at 33 (per Beaumont J, Black CJ and Jenkinson J agreeing). Extrinsic materials may be consulted where ambiguity exists on the face of the orders: Wende…
Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd
[1993] FCA 471 Para 25

…versy before the Court: see, for example, Caboolture Park Shopping Centre Pty Ltd (In Liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 at 235 and Darling Downs Investments Pty Ltd v Ellwood (1988) 18 FCR 510 at 521 and 525-526. It is submitted that, in this case, there is no longer any controversy bef…
Autodesk Inc v Dyason (No 2)
[1993] HCA 6 Para 25

…al Property Orders. 7.In relation to the cases referenced in His Honour’s Associate’s email: a. In Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, the High Court held that a Court has jurisdiction to recall a final judgment but that jurisdiction is to be used with great caution, and the Court's decision turned on th…
Smith v New South Wales Bar Association
[1992] HCA 36 Para 23

…ermines the Order required.[14] [13] Burrell v The Queen (2008) 238 CLR 218 at [19] – [21]. [14] See generally, Smith v NSW Bar Association (1992) 176 CLR 256 at 265 – 267 (Brennan, Dawson, Toohey Gaudron JJ). Issue 4: to re-open or not to admit the November balance sheets?…
Pantorno v The Queen
[1989] HCA 18 Para 2

…The decision of the High Court in Smith , which was not cited by either party in the brief submissions filed, was relied upon in the subsequent decision in Autodesk v Dyason (No.2) (“Autodesk (No.2)”) where Brennan and Gaudron JJ, each writing separately but as part of the majority that included Daw…
Metwally v University of Wollongong
[1985] HCA 28 Para 2

…conceded step in determining the validity of a conclusion for which one of the parties contends ((23) University of Wollongong v. Metwally (No.2) (1985) 59 ALJR 481, at p 483; 60 ALR 68, at p 71). Of course, the precise ground which a court or judge assigns for a decision will frequently be formulated in terms differ…
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2)
[1982] HCA 59 Para 22

…on of this Rule and its antecedents. See, among other decisions, L. Shaddock & Associates Pty Ltd v Council of the City of Parramatta (1983) 151 CLR 590 especially at 597; DJL v Central Authority (2000) 201 CLR 226.…
State Rail Authority of New South Wales v Codelfa Construction Pty Ltd
[1982] HCA 51 Para 2

…n opportunity to be heard as to why that judgment should not be pronounced ((20) State Rail Authority of N.S.W. v. Codelfa Construction Pty. Ltd. (1982) 150 CLR 29; Wentworth v. Woollahra Municipal Council (1982) 149 CLR672, at p 684). The jurisdiction is exercised sparingly for it is important to bring litigation t…
Wentworth v Woollahra Municipal Council
[1982] HCA 41 Para 2

…The decision of the High Court in Smith , which was not cited by either party in the brief submissions filed, was relied upon in the subsequent decision in Autodesk v Dyason (No.2) (“Autodesk (No.2)”) where Brennan and Gaudron JJ, each writing separately but as part of the majority that included Daw…
Australian Consolidated Press Ltd v Morgan
[1965] HCA 21 Para 3

…ry rules of construction, without delving into the subjective intention of the judge who made the order: Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 503 (Windeyer J); Repatriation Commission v Nation (1995) 57 FCR 25 at 33 (per Beaumont J, Black CJ and Jenkinson J agreeing). Extrinsic materials m…
Smith v NSW Bar Association
353 US 252 Para 23

…he error to be corrected determines the Order required.[14] [13] Burrell v The Queen (2008) 238 CLR 218 at [19] – [21]. [14] See generally, Smith v NSW Bar Association (1992) 176 CLR 256 at 265 – 267 (Brennan, Dawson, Toohey Gaudron JJ). Issue 4: to re-open or not to admit the November balance sheets?…

Legislation cited in this decision · 1

Family Law Act 1975 (Cth)
1 mention

File number(s):	CAC 119 of 2021
Judgment of:	JUDGE W J NEVILLE
Date of judgment:	16 May 2024
Catchwords:	FAMILY LAW - PRACTICE & PROCEDURE – supplementary reasons regarding whether to re-open or not to re-open (that is the question) – arithmetical errors in Husband’s balance sheet used by the Court in judgment but which were not brought to Court’s attention until later Directions Hearing post-judgment – judgment not “perfected” – considerations regarding use of “slip-rule” compared to re-opening – evidence re-opened on Court’s own motion to correct inadvertent error and to admit evidence of which the Court was unaware at the time of preparing judgment – parties provided written submissions regarding re-opening – later agreed balance sheets from each party admitted into evidence – no need to re-visit or re-consider findings by the Court on the evidence at trial.
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Part 10.4; rr.10.13, 10.14
Cases cited:	Autodesk Inc v Dyason (No.2) (1993) 176 CLR 300 Burrell v The Queen (2008) 238 CLR 218 De L v Director-General, NSW Department of Community Services (No.2) (1997) 190 CLR 207 Dickons v Dickons (2014) 50 Fam LR 244 DJL v Central Authority (2000) 201 CLR 226 Ezra Abrahams Pty Ltd v Milburn [2017] VSCA 355 FDY Investments Pty Ltd v Promptair Pty Ltd [2017] FCA 1097 Janzen & Naish [2024] FedCFamC2F 309 Janzen & Naish [2024] FedCFamC1A 75 Racing New South Wales v Racing Victoria Ltd [2024] NSWSC 147 L. Shaddock & Associates Pty Ltd v Council of the City of Parramatta (1983) 151 CLR 590 Smith v NSW Bar Association (1992) 176 CLR 256
Division:	Division 2 Family Law
Number of paragraphs:	82
Date of hearing:	23 April 2024 8 May 2024 (last submissions)
Place:	Canberra
Solicitors for the Applicant	C Law Firm
Solicitors for the Respondent	Robinson + McGuinness Family Law

CAC 119 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS JANZEN Applicant
AND:	MR NAISH Respondent

ORDER MADE BY:	JUDGE W J NEVILLE
DATE OF ORDER:	16 MAY 2024