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Lake and Lake (No. 2)

Lake and Lake (No. 2)

Case [2018] FamCA 761 24 September 2018

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FAMILY COURT OF AUSTRALIA

LAKE & LAKE (NO. 2)

[2018] FamCA 761

FAMILY LAW – SLIP RULE – Whether an order should be made under the Slip Rule – Where there was indications in the final Judgment about an order that would be made – Whether such an order was made.

In the marriage of Bailey (1990) 99 FLR 419
Vance & Vance (2011) FLC ¶93-461

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT:

Ms Lake

RESPONDENT:

Mr Lake

FILE NUMBER:

SYC

4478

2012

DATE DELIVERED:

24 September 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

17 September 2018

REPRESENTATION

ADVOCATE FOR THE APPLICANT:

Ms Ede

SOLICITOR FOR THE APPLICANT:

Ede Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Cohen

SOLICITOR FOR THE RESPONDENT:

Broun Abrahams Burreket

Orders

Pursuant to Rule 17.02(1)(husband) of the Family Law Rules, I make the following additional order to form part of the orders made by the court on 14 June 2018:
The children's time with the father pursuant to the orders of 14 June 2018 will be suspended during one period of school holiday time in each calendar year upon the mother giving the father not less than 28 days’ notice prior to that school holiday time that she proposes to take the children on holiday away from her residence. The mother is to provide make up time to the father for the time he has lost with the children because of the suspension of the order, in configurations agreed to between the parties and failing agreement at such time as the mother determines.

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 Lake & Lake 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 SYDNEY

FILE NUMBER: SYC 4778 of 2012

Ms Lake

Applicant

And

Mr Lake

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

Introduction

Before the court is an application of the mother Ms Lake, seeking for the inclusion of an order pursuant to the Slip Rule.
The mother seeks that the following order be made:
Pursuant to the slip rule (being Rule 17.02(1)(h) of the Family Law Rules 2004, and in addition to Orders made 14 June 2018 the following order be made:-
The children’s time with the Husband pursuant to the Orders (being Orders 5, 6, 7 and 8 made 14 June 2018) shall be suspended upon the Wife giving the Husband fourteen days’ notice of her intention to holiday with the children. In…

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 Lake and Lake (No. 2)

Details

AGLC: Lake and Lake (No. 2) [2018] FamCA 761
Case: [2018] FamCA 761
Decision Date: 24 September 2018

CaseChat Overview and Summary

In the matter of *Lake and Lake (No. 2)*, Le Poer Trench J considered an application to vary existing parenting orders made on 14 June 2018. The dispute concerned the children's time with the father, and the mother sought to introduce a provision allowing her to suspend the father's time during school holidays under specific circumstances.

The primary legal issue before the court was whether to grant the mother's application to vary the existing parenting orders to include a provision for the suspension of the father's time with the children during one period of school holiday in each calendar year. This variation was sought to facilitate the mother's ability to take the children on holiday away from her residence.

Le Poer Trench J reasoned that the proposed variation, made pursuant to Rule 17.02(1) of the Family Law Rules, would allow the mother to suspend the father's time with the children by providing at least 28 days' notice prior to the relevant school holiday period. Crucially, the court stipulated that the mother would be required to provide make-up time to the father for any lost time, with the configuration of this make-up time to be agreed between the parties or, failing agreement, determined by the mother. The court made an additional order to this effect, to form part of the original orders of 14 June 2018.

Orders

Orders of the court

Pursuant to Rule 17.02(1)(husband) of the Family Law Rules, I make the following additional order to form part of the orders made by the court on 14 June 2018:

The children's time with the father pursuant to the orders of 14 June 2018 will be suspended during one period of school holiday time in each calendar year upon the mother giving the father not less than 28 days’ notice prior to that school holiday time that she proposes to take the children on holiday away from her residence. The mother is to provide make up time to the father for the time he has lost with the children because of the suspension of the order, in configurations agreed to between the parties and failing agreement at such time as the mother determines.

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

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

Lake and Lake (No. 2) [2018] FamCA 761

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 13 of 13 shown

Short v Short
[2021] NZHC 3404 Para 1

…62 WN(NSW) 166 ; Re Bickford Joinery Pty Ltd (1974) 7 SASR 438 ; inserting an order made by the judge but omitted from the written orders: Re Short; Short v Short (1902) 8 ALR (CN) 30 ; and correcting a wrong date in orders where the judge had specified “the second Wednesday in February”: Tye v Lansell (1900) 25 VLR 4…
Burrell v The Queen
[2008] HCA 34 Para 3

…deed, as the High Court said more recently in Burrell v The Queen (2008) 238 CLR 218, at 224 – 225 per Gummow A-CJ; Hayne, Heydon, Crennan and Kiefel JJ: 20.Identifying the formal recording of the order of a superior court of record as the point at which that court’s power to reconsider the matter is at an end provid…
J Aron Corporation v Newmont Yandal Operations Pty Ltd
[2005] NSWSC 1159 Para 2

…e slip rule are extensively discussed by Spigelman CJ in Newmont Yandale Operations Pty Ltd v The J Aron Corporation and the Goldman Sachs Group Inc (2007) 70 NSWLR 411 . In that case Spigelman CJ also discussed authorities which deal with the inherent power of a superior court to amend its orders. The Family court, w…
DJL v Central Authority
[2000] HCA 17 Para 2

…essly contained in the Act or other statute conferring jurisdiction and such powers as may be implied by those statutes (see DJL v Central Authority (2000) 201 CLR 226). [17] Two essential criteria have been identified where the slip rule may be invoked: · where there is a clerical mistake; and · where there is an ac…
Commonwealth v McCormack
[1984] HCA 57 Para 3

…ssociates Pty Ltd v Parramatta City Council No. 2 (1982) 151 CLR 590 which decision was followed in the Commonwealth of Australia v McCormack (1984) 155 CLR 273 where the Court pointed out (276), that ordinarily a successful appellant would be entitled to orders for repayment… 5.…There seems little doubt that the Ful…
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2)
[1982] HCA 59 Para 3

…inadvertence falls within the equivalent rule in the High Court rules: see L Shaddock and Associates Pty Ltd v Parramatta City Council No. 2 (1982) 151 CLR 590 which decision was followed in the Commonwealth of Australia v McCormack (1984) 155 CLR 273 where the Court pointed out (276), that ordinarily a successful a…
Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd
[1981] HCA 3 Para 1

…st order where those costs had been mistakenly overlooked when the order was made: Barrell Insurances Pty Ltd v Pennant Hills Restaurants Pty Ltd (1983) 49 ALR 384 ; 58 ALJR 51 . What is sought by the applicant is an amendment to supplement the orders agreed upon by the parties to address a situation which obviously…
Grierson v The King
[1938] HCA 45 Para 1

…by the court are final and the court has no authority to review its own orders: see the decisions of the Full Court of the High Court in Grierson v R (1938) 60 CLR 431 ; Crown Solicitor (NSW) v Stubbs (1929) 42 CLR 312 ; also see Roxburgh v Tully (1883) 1 QLJ 144 ; Graziers Association of NSW v Australian Legion of…
Crown Solicitor (NSW) v Stubbs
[1929] HCA 17 Para 1

…ty to review its own orders: see the decisions of the Full Court of the High Court in Grierson v R (1938) 60 CLR 431 ; Crown Solicitor (NSW) v Stubbs (1929) 42 CLR 312 ; also see Roxburgh v Tully (1883) 1 QLJ 144 ; Graziers Association of NSW v Australian Legion of Ex-Servicemen and Women (1949) 49 SR(NSW) 300 ; Cop…
Ivanhoe Gold Corporation Ltd v Symonds
[1906] HCA 71 Para 1

…2] VLR 109 ; amending an order which purported to be in respect of two claims in the action when only one had been tried: Ivanhoe Gold Corp v Symonds (1906) 4 CLR 642 ; amending a wrong figure or date in the orders where the parties and the judge both used the same wrong figure or date but the correct figure had be…
SMK Pty Ltd v Milan Kramer
[1995] FCA 1616 Para 3

…versight by a party’s legal representative notwithstanding the fact that the formal orders have been taken out… 2.In SMK Pty Ltd v Milan Kramer [1995] FCA 1616 the Full Court of the Federal Court held that: 4.The defendant, the successful appellant in the Full Court, seeks an order pursuant to O.35, r.7(3), the sl…
[1893] AC 638
[1893] AC 638 Para 1

…VLR 28 Re Dionisio & Co (1888) 14 VLR 326 ; Re Hogarth's Estate; Crips v Hogarth [1962] TSR 17 the Ivanhoe Gold Corp case infra ; Milson v Carter [1893] AC 638 ; Gikas v Papanayiotou [1977] 2 NSW 944 But that power does not extend to supplementing the orders made by a further order on a point which was not argue…
Commonwealth of Australia v McCormack
1 WLR 78 Para 3

…High Court rules: see L Shaddock and Associates Pty Ltd v Parramatta City Council No. 2 (1982) 151 CLR 590 which decision was followed in the Commonwealth of Australia v McCormack (1984) 155 CLR 273 where the Court pointed out (276), that ordinarily a successful appellant would be entitled to orders for repayment… 5.…There seems little doubt…

Legislation cited in this decision · 3

Family Law Act 1975 (Cth)
1 mention
Family Law Rules 1984 (Cth)
1 mention (from Para 3)
Family Law Rules 2004 (Cth)
1 mention (from Para 2)