Lake and Lake (No. 2)
[2018] FamCA 761
•24 September 2018
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 | of | 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 the event that the Wife notifies the Husband of the suspension of the children’s time with him that would ordinarily occur during school terms, then the Wife shall provide make up time for those days. In the event that the Wife notifies the Husband of the suspension of the children’s time with him that would ordinarily occur during school holiday periods, then make up time is not required but such suspension shall not exceed more than 14 days in any calendar year.
The father, Mr Lake, opposes both the amending order being made, and the making of the order pursuant to the Slip Rule.
Background
In this matter, I delivered final orders and reasons on 14 June 2018. The application before the Court was an Application for Final Orders brought by the father seeking parenting orders in relation to the parties’ two children (B, now aged 12, and C, now aged 10).
In my reasons for judgment, I set out the following paragraphs relevant to the mother’s current application:
155. The mother set out detail of her overseas and interstate holidays with the children. She commenced that part of her affidavit about the holidays with the following:
The day to day management of the children is gruelling and relentless for myself and my parents. I live under enormous financial and personal strain. Periods of relaxation are rare and generally fleeting. As such, family holidays have become very special for all of us to look forward to and enjoy a break, away from our ‘normal’ lives … I have to accept that, without some respite from our normal routine, it threatens to overwhelm us all.
156. I accept that in the future the mother will need respite from the task of parenting and that it is appropriate for her to be able to holiday both within and outside Australia should her financial circumstances allow.
[…]
477. There is a need for the orders to make provision for the mother to be able to take the children on a holiday with her. The evidence causes me to conclude that the mother will need some respite time with the children in a holiday type environment to enable her to persist with the level of parenting she has been able to provide for these children during the development stages these children have experienced. The mother seeks that provision and I propose to make an order enabling that to occur as I consider it very important for the children's welfare.
It is clear from the reasons that I intended to make an order which permitted the mother to be able to have the children with her for the whole of a school holiday period at the conclusion of either the first, second or third school terms or alternatively for a four week block in the end of year school holidays such that it would enable the mother to take the children on a holiday, including an overseas holiday.
The orders I made were numerous (54 including notations with some orders having sub-paragraphs), intricate and exhaustive. In making the orders I accept I did overlook making the order I had clearly said I would make in the body of the judgment.
The orders I did make in relation to school holidays provided for a progression of time the children could spend with the father, subject to his compliance with pre-conditions.
In relation to school holiday time the parties were to spend with the children, the following was set out:
(5)From the date of these Orders until the first school term of the 2019 school year and subject to the other orders set out herein, the children spend time with the father as follows:-
(a) During school terms:-
(i)Every fortnight on an alternating weekend regime commencing on the first weekend of each school term:
1.On Sunday from 10.00 a.m. to 3.00 p.m. (and every four weeks thereafter);
2.A fortnight later, from 9.00 a.m. Saturday to 6.30 p.m. that day and from 10.00 a.m. until 3.00 p.m. the next day, Sunday (and every four weeks thereafter).
3.The fortnightly regime to continue until the conclusion of the fourth school term in 2018.
(b) During school holiday time, and subject to any other orders herein:
(i)On each school holiday period, every Monday and Tuesday from 8.00 a.m. to 6.30 p.m.
(6)From the first school term in the 2019 school year, until the commencement of the third school term in the 2019 school year and subject to the other orders set out herein, the children spend the following time with the father:
(a)During school terms, commencing on the first weekend of each school term:
(i)Each alternate weekend on Saturday from 9.00 a.m. to 6.30 p.m. AND on Sunday from 10.00 a.m. until 3.00 p.m.
(b) During school holiday time:
(i)From 9.00 a.m. to 6.30 p.m. on the first and last Saturday of the school holiday period;
(ii)From 9.00 a.m. to 6.30 p.m. on the first and last Sunday of the school holiday period; and
(iii)From 9.00 a.m. to 6.30 p.m. each Wednesday during the school holiday period.
(7)From the third school term in the 2019 school year and until the commencement of the fourth school term in 2019, and subject to the other orders set out herein, the children spend the following time with the father:
(a)During school terms, each alternate weekend commencing on the first weekend of that term and continuing thereafter, from 9.00 a.m. Saturday until 3.00 p.m. Sunday.
(b) During school holiday time:-
(i)During the school holiday period at the end of term three of the 2019 school year:
A.For two periods of three nights (not to run consecutively and not to have less than four nights between each period). Such period of time to commence at 12 noon on the first day and conclude at 12 noon on the fourth day.
B.The two start days are to be nominated by the father to the mother in writing 14 days before the last day of the third school term.
(8)From the fourth school term in 2019 and following, subject to the other orders set out herein, the children spend the following time with the father:
(a)During school terms, each alternate weekend commencing on the first weekend of that term and continuing thereafter, from 5.00 p.m. on Friday (or the conclusion of time if the mother so directs) until 4.00 p.m. on Sunday.
(b)The mother may extend the time stipulated in Order 9(a) to Monday morning if she considers it is in the children’s best interests at that time.
(c)During the school holiday period commencing at the conclusion of the fourth school term in 2019:
(i)For three separate periods of one week (seven consecutive days) commencing at 12 noon on the first day and concluding at 12 noon on the seventh day.
(ii)The mother is to select the start days for the three periods and notify the father in writing no later than the end of the third week of the fourth school term for the 2019 school year.
(d)Thereafter for one half of all school holiday periods as agreed and failing agreement, as selected by the mother.
Submissions
The parties made submissions to me in court.
The mother submitted that the circumstances of this case fall squarely within the authorities which enable the court to repair omissions from orders where the reasons published clearly show what the trial judge intended.
The mother referred the court to decided cases and to the Family Law Rules, in particular Rule 17.02(1)(h). That rule states as follows:
Varying or setting aside orders
(1) The court may at any time vary or set aside an order, if:
(a) it was made in the absence of a party; or
(b) it was obtained by fraud; or
(c) it is interlocutory; or
(d) it is an injunction or for the appointment of a receiver; or
(e) it does not reflect the intention of the court; or
(f) the party in whose favour it was made consents; or
(g) there is a clerical mistake in the order; or
(h) there is an error arising in the order from an accidental slip or omission.
(2) Sub rule (1) does not affect the power of the court to vary or terminate the operation of an order by a further order.
The mother submitted the reasons published with the court orders of 14 June 2018 make clear the intention to make the type of order which the mother now seeks.
The Independent Children's Lawyer submitted that there was clear authority to make the order if the court determines it was omitted in error.
The father submitted that the order should not be allowed under the slip rule as it was not a clerical error.
The Law
Mullane J, in his first instance judgment of In the marriage of Bailey (1990) 99 FLR 419 (at 78,008-78,009)
The error or omission can arise by reason of an accidental slip or omission by the legal representatives as a result of which the court did not make the order which it should have made: see Craigmyle v Inchcape [1942] 1 Ch 394 ; In the Marriage of Steinmetz (No 2)(1980) 6 Fam LR 554 at 557 ; [1981] FLC 91-079 at 76,562 .
However, the error could not be said to arise from any accidental slip or omission by the court or the parties. It was the belief of the parties that the orders were adequate because they expected the wife to receive more than $11,000 from the redemption. The provision that the husband would pay her only $4000 was therefore appropriate. There was no consideration of the proposition that he pay her any more than that. It was unnecessary and did not arise. There was no intention of the parties that the husband pay the wife more than $4000 as they had not anticipated the shortfall on the redemption. There was no accidental slip or omission.
The error was not an obvious error, such as an error of calculation or a misdescription. Apart from the provisions of O 31 r 6, there is inherent power in superior courts to amend orders under the slip rule. It should be emphasised though that generally orders made 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 Ex-Servicemen and Women (1949) 49 SR(NSW) 300 ; Coppins v Helmers and Brambles Constructions Pty Ltd [1969] 2 NSWR 279 .
The exception to that general rule, known as the slip rule, does not, for example, provide power for the court to later add to its orders a costs order, or an award of interest where such questions were not raised or considered at the hearing: Brew v Whitlock (No 3)[1968] VR 504 ; Lauer v Briggs (No 2) (1928) 28 SR(NSW) 389 ; Tauro v Tauro (1897) 14 WN(NSW) 113 A E Terry's Motors Ltd v Rinder (No 2) [1948] SASR 303 .
The slip rule has been applied in situations such as deleting an order which was not made at the hearing: Tauro v Tauro, supra , clarifying a costs order to indicate it included costs of a special case: Commissioner of Taxes v British Australian Wool Realisation Association Ltd [1932] 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 been available: Re J W Challand Pty Ltd (1945) 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 462 .
The slip rule also has been used to insert a date for compliance with an order where it had been omitted from the order: Walsh v DCT (NSW)(No 2) (1983) 14 ATR 59 ; and insertion of reference to costs of remission to a judge for assessment of damages in a cost 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 neither of them contemplated and about which there was no agreement. They did not agree what would happen if the redemption realised less than $8000 and there were not sufficient funds to provide $12,000 for spouse maintenance because they clearly did not consider that possibility. It was not an error of the type that can be corrected by the slip rule.
Superior courts do have inherent power to amend orders to give effect to the meaning of the judgment and intention of the court: for example see Ex parte Herman ; Re Mathieson (1960) 78 WN(NSW) 6 ; Christie v Newson (1894) 20 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 argued, considered or decided at the hearing: for example, Campbell v Brisbane City Council (No 2) (1967) 14 LGRA 305 ; Lauer v Briggs (No 2) [1928] SR(NSW) 389, ; supra ; Dangola v Rio Pioneer Gravel Co Pty Ltd[1977] 2 NSWLR 227 .Boland J, sitting as a single judge on the Full Court in Vance & Vance (2011) FLC ¶93-461 set out further:
[14] In Burrell v R the High Court (Gummow A-CJ, Hayne, Heydon, Crennan and Kiefel JJ) examined the question of finality of orders, and the limited circumstances in which the orders of a superior court of record can be amended. Having discussed the "rule" about finality of litigation, at para 21, their Honours said:
The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order provides no substantial qualification to that rule. The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded. [footnote omitted]
[15] Further, at para 28 their Honours said:
The parties to an appeal are given procedural fairness by allowing each a proper opportunity to make submissions before the court makes its decision. Once the court announces the decision it has made, any further hearing is exceptional. To hold that parties must be given a sufficient opportunity to consider whether to ask for a further hearing would convert the exception into the rule. That step should not be taken.
[16] The authorities dealing with the limited circumstances in which a superior court can amend its orders under the 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, while a superior court of record, as a court created by statute does not have an inherent jurisdiction derived from the common law, but has such powers as are expressly 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 accidental slip or an accidental omission.
[18] The learned author of Amending Final Judgments and Orders, John Tarrant, (The Federation Press, 2010) explains at p 52 of his text "If a deliberate decision made by a judge results in an error in a judgment or order, that error cannot be corrected under the slip rule. That is because an error arising from a deliberate decision cannot be described as arising from an accidental slip or an accidental omission".
In Gludau & Gludau (no 2) (2013) FamCAFC 181, per Murphy J (with whom May and Hogan JJ agree), the Full Court stated as follows:
1.The High Court in McCormack following the earlier decision of that court in L Shaddock held (at 277) that:
…there is jurisdiction to make an appropriate order under [the slip rule] to remedy the situation which has arisen as a result of oversight 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 slip rule, which provides that a clerical mistake or any error from an accidental slip or omission in an order or judgment may be corrected by the Court. It has been held that counsel’s 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 appellant would be entitled to orders for repayment…
5.…There seems little doubt that the Full Court, had it been apprised of the payment of moneys, would have ordered repayment of them. The defendant also seeks an order for interest from the date they were paid to the plaintiff which is to be taken as 11 July 1994 to today’s date. In McCormack the Court considered that the slip rule was the appropriate rule to apply to such circumstances and it appears clear from that decision that the Court considered that the question of the quantum of the repayment ought to be approached on restitutionary principles….
3.Within the context of finding that this court had no power to reopen an appeal to correct an error of law once orders in the appeal had been perfected, the majority in DJL v The Central Authority (2000) 201 CLR 226 held, at [28]:
Order 31 of the Family Law Rules is headed “decrees”. The term “decree” is defined in s 4(1) of the Family Law Act as meaning “decree, judgment or order” and as including “a decree nisi and an order dismissing an application or refusing to make a decree or order”. Order 31, r 5 states:
“Except where the court or a Registrar otherwise directs, all decrees, warrants and recognizances made under the [Family Law] Act, the [Family Law] Regulations or these Rules shall be drawn up and signed by the Registrar of the filing registry.”
Rule 6 provides for the rectification by the registrar of any error “that appears on the face of a decree” and for the rectification of the formal record of a decree where it contains an error appearing to arise “from an accidental slip or omission” (O 31, r 6(3)). This “slip rule” includes a power to “make or give such consequential orders or directions as may be necessary to ensure that justice is done between the parties” (O 31, r 6(4)(b)). However, it is not suggested that O 31 confers a power of the nature necessary to set aside a decree after entry for error of law in the reasons for judgment founding the decree. Nor was this court referred to any other provision of the legislation directly and expressly conferring such a power.
4.As the Court there refers to, the “slip rule” as it then appeared in the Family Law Rules 1984 (Cth) was contained within Order 31 and provided for correction of error by a Registrar and, “…in a case of doubt or where it appears that the error arises from an accidental slip or omission…”, reference to, relevantly, a Judge upon notice. The then rule went on to provide, as the High Court refers to:
(4) Where a decree is referred under sub-rule (3), the Judge…to whom it is referred-
(a) may rectify the decree, without an appeal; and
(b) may make or give such consequential orders or directions as may be necessary to ensure that justice is done between the parties.
5.The “slip rule” in its current form (r 17.02) provides, like its predecessor, for reference to a Registrar but only so as to “…rectify an error that appears obvious on reading the order.” Like its predecessor the Rule provides for referral to a “judicial officer” upon notice but, when that occurs, the Rule goes on to provide the power that the judicial officer may exercise:
(5) A judicial officer may, after giving each party a reasonable opportunity to be heard, rectify a suspected error referred to the judicial officer.
Note: An amendment of an order may be made under this rule only if it is an error obvious when reading the order. Any other amendment must be remedied by appeal or consent.
6.The rule in its current form, particularly when regard is given to its accompanying note, is arguably significantly more restrictive of the “slip rule” powers exercisable by a judge of this court than those to which the High Court referred in DJL. Indeed, 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 provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court.
21.The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order [L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1982) 151 CLR 590 at 594-595] provides no substantial qualification to that rule. The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded.
(Bold emphasis added).
7.The current rule might, then, be argued to be reflective of the concern that the Rules must embody the fact that this court is a creature of statute within a constitutional framework and its powers on appeal derive from statute. In particular, while the “slip rule” might be used to correct obvious errors (perhaps what Kirby J referred to in DJL as “accidental mistakes or omissions of no substantive significance” or an “accidental slip or omission” as the plurality in Burrell referred to), care must be taken when the nature of the asserted error is substantive, as that may in fact involve the exercise of a power to reopen proceedings that are completed by a perfected order and that is a power which this court does not have (see,
Clearly the above authorities enable the court to repair the type of omission which the mother in this case has clearly identified.
Determination
I conclude that an error has arisen from an accidental slip or omission. I clearly intended to make an order which provided the mother with the ability to be able to take the boys on an extended holiday overseas. By “extended” I had in mind “for the duration of one whole period of the shorter term school holidays or for up to 4 weeks in the end of year school holidays.” Absent the consent of the father I did not intend that the children would be removed from school for lengthy periods of time to permit such a holiday to occur.
The order sought by the wife is very wide in that it is not confined to allowing her to suspend the father’s time with the children for the whole of one of the shorter school holiday periods or which might enable her to have a four week holiday away from Australia or within Australia during the end of year school holiday period. I will frame and make an order of the type which I intended to make in the orders of 14 June 2018.
The submission of the father needs some attention. The court was informed that the father has failed to comply with the orders made on 14 June 2018. There is no evidence of any formal request being made on behalf of the father to the mother to agree to a variation of the orders to enable the father to decline to comply with the orders until a later date. The only information given to the court was from the mother and not refuted by the father’s legal representative.
There is clearly a thought at large, not confined to the father in this case, that the parent who has the right to exercise time with the children pursuant to the orders of the court, is at liberty to exercise that right as and when he so desires. That is not a view that I can see could be correct at law. In my view failure to comply with an order of the court which says “subject to other orders set out herein, the children spend time with the father” imposes a legal obligation upon the father to enable that order to be facilitated.
If it be the case that the father has failed to take up any of the time with the children (without reasonable cause), as the orders of 14 June 2018 require, then I wonder what status he would have to be heard in opposing the application of the mother in this case. Notwithstanding that thought, no objection was taken to the father appearing in the hearing and being heard in the hearing. As such I did not challenge that circumstance.
I consider the only basis for the father to have opposed the order sought by the mother was the breadth of the order proposed by her and such detail should have been negotiated between the parties lawyers rather than requiring an appearance before the court.
I make the order set out above.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 24 September 2018.
Associate:
Date: 24 September 2018
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