KLD and SCVG

[2018] FamCA 735

FAMILY COURT OF AUSTRALIA

KLD & SCVG [2018] FamCA 735

PRACTICE AND PROCEDURE – amendment under the slip rule – omission of order.

Family Law Rules 2004 (Cth)

APPLICANT: Ms KLD

RESPONDENT: Mr SCVG

FILE NUMBER: SYC 4380 of 2008

DATE DELIVERED: 17 September 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 30 July 2018 & 10 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Stenhouse

SOLICITOR FOR THE APPLICANT: Macphillamy's

SOLICITOR FOR THE RESPONDENT: Self-representing

Orders

1. That the Applicant within 28 days file and serve a document particularising the claims made against Respondent and the legal and equitable basis on which those claims are made in the form of a Statement of Claim in the Supreme Court of NSW.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym KLD & SCVG has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 4380 of 2008

Ms KLD

Applicant

And

Mr SCVG

Respondent

REASONS FOR JUDGMENT

1. Ms KLD filed an Application in a Case on 11 May 2018 and amended it on 8 June 2018.  Relevantly she sought, under the heading “Particularisation” at 1.2 the following:

   1.        That the Applicant within 28 days file and serve:

   …

   1.2 A document particularising the claims made against Respondent and the legal and equitable basis on which those claims are made in the form of a Statement of Claim in the Supreme Court of NSW.

2. Ms KLD’s Application in a Case was dealt with by judgment and orders of 8 August 2018. Order 1.2 sought by Ms KLD was not made. Ms KLD now seeks that order be made pursuant to r 17.02.

3. The particularisation aspect of Ms KLD’s application was referred to in the reasons of 8 August 2018, where it was noted that the application had been made, that it was not opposed by Mr SCVG, but that Mr SCVG asserted that he was already in compliance with such an order by virtue of his amended application in a case filed 27 July 2018.  It was noted that no determination was made as to whether or not the amended application complied with Order 1.2 as sought.

4. This reflected the exchange that had taken place during the proceedings which culminated at p 77 of the transcript where Mr SCVG said that he was happy for Order 1.2 to be made “because I think my particulars are in sufficient detail.”

5. At the re-listing on 10 September 2018, Mr SCVG indicated that he believed the terms of the reasons meant that the Court was declining to make the order.  He said that he no longer consented to such an order, and that if it was made he reserved his position as to whether he would provide an alternate response.  It may be noted that if the order is made at this stage, he has the option of providing an alternate response.

6. Rule 17.02 provides that the Court may at any time vary or set aside an order, if

   ….

   (h) there is an error arising in the order from an accidental slip or omission.

7. In this case that is what has occurred.  The argument as to whether Order 1.2 should be made was truncated by the agreement of Mr SCVG to the making of the order.  That agreement was recited in the reasons delivered, as explanation for the making of the order. By accidental slip or omission the order was not made.

8. Order 1.2 will now be made.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 17 September 2018.

Associate: 

Date:  17 September 2018