Lewis and Price
[2009] FamCAFC 119
•10 July 2009
FAMILY COURT OF AUSTRALIA
| LEWIS & PRICE | [2009] FamCAFC 119 |
| FAMILY LAW - APPEAL – Incorrect findings of fact with an insufficiency of reasons - leave to appeal – error unable to be cured by application of the slip rule - failure to afford the parties procedural fairness - appealable error – appeal allowed – parties’ cross-applications remitted for rehearing. |
| Brew v Whitlock (No. 3) [1968] VR 504 House v The King (1936) 55 CLR 499 Russell & Russell (1999) FLC 92-877 De Winter and De Winter (1979) FLC 90-605 |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| APPELLANT: | Mr Lewis |
| RESPONDENT: | Ms Price |
| FILE NUMBER: | PAM | 5717 | of | 2005 |
| FIRST APPEAL NUMBER: | EA | 39 | of | 2007 |
| SECOND APPEAL NUMBER: | EA | 137 | of | 2007 |
| ORDERS MADE: | 4 December 2007 |
| REASONS DELIVERED: | 10 July 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Finn & Mushin JJ |
| HEARING DATE: | 4 December 2007 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATES: | 22 February 2007 & 24 October 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 101 & [2007] FMCAfam 883 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Kearney |
| SOLICITOR FOR THE APPELLANT: | Farrar Gesini & Dunn |
| COUNSEL FOR THE RESPONDENT: | Mr Millar |
| SOLICITOR FOR THE RESPONDENT: | Rita Thakur & Associates |
Orders made 4 December 2007
Appeal EA39 of 2007 be allowed.
The orders of Federal Magistrate Housego of 22 February 2007 be set aside.
The parties’ Cross-Applications be remitted for rehearing by a Federal Magistrate other than Federal Magistrate Housego.
Appeal EA 137 of 2007 be allowed.
The orders of Federal Magistrate Housego of 24 October 2007 be set aside.
The Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by the appellant husband in relation to the appeal.
The Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by the respondent wife in relation to the appeal.
The Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.
Amended orders made 10 july 2009 (pursuant to rule 17.02 of the family law rules 2004 (cth))
Appeal EA39 of 2007 be allowed.
The orders of Federal Magistrate Housego of 22 February 2007 be set aside.
The parties’ Cross-Applications be remitted for rehearing by a Federal Magistrate other than Federal Magistrate Housego.
To the extent necessary, there be leave to appeal the orders of Federal Magistrate Housego of 24 October 2007 and the appeal EA 137 of 2007 be allowed.
The orders of Federal Magistrate Housego of 24 October 2007 be set aside.
The Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by the appellant husband in relation to the appeal.
The Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by the respondent wife in relation to the appeal.
The Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.
NOTATION: Pursuant to rule 17.02 of the Family Law Rules 2004 Order 4 of the orders made on 4 December 2007 has been amended to insert the words “To the extent necessary, there be leave to appeal the orders of Federal Magistrate Housego of 24 October 2007 and the” before the words “[a]ppeal EA 137 of 2007 be allowed”.
IT IS NOTED that publication of this judgment under the pseudonym Lewis & Price is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 39 of 2007; EA 137 of 2007
File Number: PAM 5717 of 2005
| Mr Lewis |
Appellant
And
| Ms Price |
Respondent
REASONS FOR JUDGMENT
introduction
On 4 December 2007 this Court made orders allowing appeals against orders made by Housego FM on 22 February and 24 October 2007. We set aside the orders appealed and remitted the parties’ cross-applications for property settlement for re-hearing. When making our orders we said that we would later publish our reasons for the orders. These are our reasons.
The parties commenced living together in 1997 and married in February 1999. They separated in February 2004 and their marriage has been dissolved. There is no child of the marriage. The appellant husband has three adult children by a previous relationship, all of whom spent varying amounts of time living with the parties during their cohabitation.
On 22 February 2007 Federal Magistrate Housego made orders ("the first orders") and delivered reasons for judgment ("the first judgment") finalising the parties' competing applications for alteration of property interests pursuant to section 79 of the Family Law Act 1975 (Cth). The orders made by her Honour were apparently intended by her to divide a “net pool of assets (excluding the wife’s state super entitlements)” found to be “$1,570,906” in accordance with the contributions assessment which she had made, being “70 per cent to the wife and 30 per cent to the husband, excluding the wife’s [S] Superannuation policy”.The husband appealed against those orders ("the first appeal").
On 24 October 2007 her Honour made further orders ("the second orders") and delivered reasons for judgment ("the second judgment"). These orders were made following an application by the wife which sought that as a machinery provision, the Court make orders replicating interim orders that required certain payments to be maintained by the husband in relation to loans secured over the former matrimonial home in country New South Wales (“the home”). Her Honour made orders for payments by the husband to continue and he appealed those orders (“the second appeal”) asserting that the learned Federal Magistrate was:
· functus officio, and if not,
· that procedural fairness was denied the parties in the making of the orders.
Both appeals were heard together. It became common ground before us that in the event that we allowed the first appeal, it would be necessary to remit the property settlement proceedings which gave rise to the appeal for rehearing. It was accepted that the second appeal, being against orders which can be described as consequential orders, would have to be allowed, but with no need to remit for rehearing the application which gave rise to the consequential orders.
BACKGROUND FACTS
The husband was born in 1948 and the wife in 1954.
At the commencement of their cohabitation in mid 1997 each party owned individual assets, most of which were contributed to their combined assets. Her Honour found that the wife had term deposit savings of $144,000, other savings of $6,000, a motor vehicle and superannuation entitlements of $104,000.
Her Honour found that the husband had a prospective settlement of property arising from his earlier relationship. He received that settlement in June 1998 in the sum of $12,757 together with a motor vehicle, monies owed to him in the sum of $5,000 and a business (“the business”).
The value of the business was an issue of significant contention between the parties during the trial. In the first judgment her Honour held that it was valued in the sum of $96,000, having preferred the evidence of the wife’s expert to that of the husband’s expert.
Shortly after the parties commenced cohabitation they purchased a second property in country New South Wales (“the business property”). The wife contributed a little more than $36,000 from her pre-cohabitation savings towards the total purchase price of $110,000. The balance was borrowed from the Commonwealth Bank. The business was then conducted from that property.
Approximately 2 months later the parties purchased the home for $200,000. The wife contributed a little more than $55,000 towards that purchase from her pre-cohabitation assets.
The parties conducted the business until their separation (in early 2004), following which it was retained and operated solely by the husband. While the issue of the degree to which each of the parties was involved in the business was relevant to the question of its value at the trial and was part of the argument on the first appeal, it was not relevant for the purpose of our determination of the first appeal for reasons which will become apparent.
In January 2005 the husband had a heart attack. That curtailed his ability to work in the business for some months but again that is not relevant for present purposes.
On 28 November 2005 the parties consented to orders pursuant to which each of them was required to maintain certain interest payments up to specified sums. Issues of continuing liability for those payments were the subject of the proceedings before her Honour on 24 October 2007, resulting in the making of the second orders which in turn were the subject of the second appeal.
THE FIRST JUDGMENT
After setting out a short history of the parties' relationship and relevant financial matters, her Honour detailed the law to be applied. She then turned to an identification of the relevant assets and liabilities together with their values.
Her Honour listed those assets and liabilities in a schedule derived from the respective submissions of the parties. The wife asserted that the gross asset pool was valued in the sum of $1,582,399 with listed liabilities of $531,000 giving a total net asset pool of $1,051,399. The husband asserted a gross asset pool in the sum of $1,636,742 with listed liabilities of $550,511 giving a total net asset pool of $1,086,231. Later in her reasons her Honour found (without explanation) a net pool of $1,570,906.
The schedule of assets and liabilities appearing in her Honour’s reasons was as follows:
ASSETS AND LIABILITIES | ||
| Wife says | Husband says | |
| ASSETS | ||
| [The home]… | $ 950,000.00 | $ 950,000.00 |
| [The business property]… | $ 195,000.00 | $ 165,000.00 |
| Business … | $ 96,000.00 | $ 51,094.00 |
| Wife's shares | $ 41,891.00 | $ 41,361.00 |
| Wife's shares | $ 2,529.00 | $ 2,965.00 |
| Ford motor vehicle | $ 3,000.00 | Incl. in business |
| Porsche motor vehicle | $ 52,000.00 | $ 52,000.00 |
| Corolla motor vehicle | $ 3,000.00 | $ 3,000.00 |
| Husband's bank funds | $ 2,120.00 | $ 660.00 |
| Wife's bank funds | $ 479.00 | $ 479.00 |
| Wife's ING account | $ 68,000.00 | $ 68,000.00 |
| Husband's contents | $ 3,000.00 | $ 3,000.00 |
| Wife's contents | $ 4,000.00 | $ 4,000.00 |
| Husband's paid costs | $ 33,716.00 | $ 27,973.00 |
| Add back funds obtained by husband | $ 100,000.00 | $ 5,494.00 |
| SUPERANNUATION | ||
| [A Superannuation]… | $ 24,279.00 | $ 24,279.00 |
| [C] Superannuation | $ 2,986.00 | $ 2,986.00 |
| [F] Superannuation | $ 399.00 | $ 399.00 |
| [S] superannuation | $ 234,052.00 | |
| TOTAL ASSETS | $ 1,582,399.00 | $ 1,636,742.00 |
| LIABILITIES | ||
| St George Bank | $ 350,000.00 | $ 350,000.00 |
| St George Bank | $ 125,000.00 | $ 125,000.00 |
| … lease (Ford) | $ 6,000.00 | Incl. in business |
| Macquarie lease (Porsche) | $ 50,000.00 | $ 61,511.00 |
| CBA Master Card | $ 14,000.00 | |
| TOTAL LIABILITIES | $ 531,000.00 | $ 550,511.00 |
| TOTAL NET ASSET POOL | $ 1,051,399.00 | $ 1,086,231.00 |
Having set out that Schedule, her Honour then noted the pre-cohabitation assets of each of the parties set out above. Her Honour went on to note the pre-cohabitation financial contributions of the wife as they referred to the purchases of property also referred to above and other investments such as shares.
Her Honour made findings with respect to a number of contributions made by each of the parties during their cohabitation, none of which is immediately relevant here.
Her Honour next considered issues of valuation relating to the business property and the home. While both of those issues were at the forefront of the dispute between the parties and the subject of submissions on the first appeal, we have not found it necessary to consider them because of the way in which we determined this appeal.
Her Honour then returned to a discussion of the contributions made by the parties. She noted the "extensive evidence" with regard to non-financial contributions made to the conduct of the business and found that it was -
clear that during the course of the parties' cohabitation each of them made significant contributions to both the operation of the business and to the construction of the parties' property.
Her Honour found that both parties had "made contributions in the capacities of homemaker and parent although to varying degrees…"
In considering all issues of contribution, her Honour noted the following concession by counsel:
51.… [B]oth counsel made a concession as to contributions which having regard to all of the evidence before me I regard as quite appropriate and [sic] accurate assessment of the parties' respective contributions, that is, that I would not prefer the contributions of one of the parties over the other save for the question of the introduced property at the start of cohabitation…
Her Honour’s overall conclusion was then expressed in the following way:
54.Accordingly I find that the net pool of assets (excluding the wife’s state super entitlements) to be $1,570,906.
55.I accept the submissions of the wife’s counsel as to the correct approach to be adopted to the super entitlements of the parties. It is clear that the husband has made no contribution to the wife’s super entitlements with [S] Superannuation and for this reason I have excluded this figure from the total pool of assets in the preceding paragraphs. Her entire superannuation entitlement will, however, be relevant to the assessment of s.75(2) factors.
56.The wife’s asserts that a proper determination of contributions was 70/30 in her favour, the 20 per cent adjustment to her deriving from the initial contributions made by her. This result was put to me as an application of the principles in In the Marriage of Pierce (1998) 24 Fam LR 347.
57.For his part, counsel for the husband contended that overall, absent the superannuation interests of the wife, the parties’ respective contributions were equivalent.
58.I accept that both parties made contributions of an equivalent nature during the course of their cohabitation, but I find that the wife’s initial superior financial contributions have had a significant effect on the parties’ financial position. In particular, her monies enabled them to acquire the real estate which they still retain and otherwise assisted in the operation of the … business. Accordingly I find that it is appropriate to assess the parties’ contributions overall as 70 per cent to the wife and 30 per cent to the husband.
THE FIRST APPEAL
There were eleven grounds of appeal (all of which had a number of sub-paragraphs) contained in the husband’s Amended Notice of Appeal, filed on 9 May 2007, against the first orders of her Honour made on 22 February 2007. The gravamen of the grounds can be summarised by saying that it was asserted that her Honour had erred in:
·determining the value of several specific assets which were the subject of the applications;
·determining that the sum of $100,000 should be added back into the asset pool as an asset of the husband;
·giving insufficient reasons for certain of her findings;
·determining the quantum of the net assets available for distribution as being approximately $1.5 million;
·finding that the husband had consented to a determination of equal contributions; and
·determining that the parties' net assets should be divided as to 70 per cent to the wife and 30 per cent to the husband, in addition to which the wife was to retain certain superannuation entitlements, the primary one being in the agreed sum of approximately $234,052 at the time of the trial.
DISCUSSION
Ground 1 – Determination of the Net Pool
We now turn to a consideration of the husband’s grounds of appeal. Ground 1 asserted that her Honour erred in the mathematical calculation of the net pool of assets to be distributed. Further, it was asserted that there was an inadequacy of reasons and findings within her Honour’s judgment with respect to that determination and in particular, various disputed assets and liabilities therein.
The wife’s assertion that the net assets of the parties totalled $1,051,399 excluded her primary superannuation entitlement in the amount of approximately $234,052, that latter figure being agreed between the parties. The husband asserted a total pool of $852,179 which also excludes the agreed amount ($234,052.00) of the wife’s primary superannuation entitlement.
At paragraph 54 of her reasons for judgment her Honour found “the net pool of assets (excluding the wife’s state super entitlements) to be $1,570,906.” Her Honour did not include a calculation which would enable us to understand how she arrived at that figure.
It was submitted on behalf of the husband, and effectively conceded on behalf of the wife, that the inclusion of the figure referred to in the previous paragraph was an error. The wife conceded that the correct total of her net assets at trial, (as shown in the table at paragraph 24 of the first judgment, which we earlier set out), was $1,051,399. Accordingly, if we accepted only the concession made on behalf of the wife, then her Honour erred in her finding regarding the net value of the assets by approximately 50 per cent.
The submissions on behalf of the husband included assertions of other errors in the list of assets and liabilities referred to above. One of those asserted errors relates to the question of add backs against the husband. A second related to the pre-payment of legal costs of the proceedings by the husband. While we formed the view that there is substance in those submissions, they involve amounts totalling approximately $30,000 which, in the context of the error referred to in the previous paragraph, may be regarded as being of little moment. Likewise, we do not find it necessary to determine a submission on behalf of the wife that there should be an add back against the husband in the sum of $100,000.
While conceding the essence of the errors referred to above, counsel for the wife submitted that they could be cured by application of the slip rule. Counsel did not refer to any authority in support of that submission.
The Family Law Rules 2004 embody the concept of the slip rule (rule 17.02), in the first instance by empowering a Registrar to “rectify an error that appears obvious on reading the order”. Alternatively, a Registrar may refer a claim to correct an error to a "judicial officer". However, only certain types of errors are susceptible to correction in this way. In particular, in the event that a correction of error would include a separate exercise of discretion, either by way of the amendment itself or as a consequence of such amendment, the slip rule is an inappropriate remedy. (See for example Brew v Whitlock (No. 3) [1968] V.R. 504-7; House v The King (1936) 55 CLR 499); Russell & Russell (1999) FLC 92-877.)
There is a clear distinction between an error which is susceptible to the slip rule as against an error of fact which attracts appellate intervention in accordance with the principles enunciated in House v The King (supra). In our view, an error which results in a finding of the net assets being valued at approximately 50 per cent in excess of their actual value constituted an error in the latter category and cannot be amended pursuant to the slip rule. The correction of such an error would call for a renewed consideration of the various discretionary elements required to determine an application for alteration of property interests pursuant to section 79 of the Act. Questions of contribution, the various factors pursuant to section 75(2) and a consideration of the overarching principle of justice and equity are all relevant.
Accordingly, we were of the view that the mistake with regard to the quantum of the net assets was such as to require us to allow the appeal (House v The King (1936) 55 CLR 499; De Winter and De Winter (1979) FLC 90-605).
Grounds 5, 6 and 7 – Contributions
It is also appropriate for us to briefly consider grounds which asserted error in her Honour’s assessment of contributions.
The essence of the submission on behalf of the husband was that her Honour misapprehended the submissions of both counsel with regard to a proposed division of the parties' net assets as to 70 per cent to the wife and 30 per cent of the husband. Her Honour understood the submissions of counsel at trial as being that the apportionment of 70 per cent to the wife excluded her entitlement to superannuation whereas counsel, it was submitted, had intended that the wife's superannuation entitlement be included within that apportionment. During the hearing of this appeal, the following exchange took place between the bench and counsel for the wife which makes this evident:
[COUNSEL FOR THE WIFE]: …I have to accept that there is an error in that her Honour has misunderstood the position that I put it [sic] conclusion of the hearing with regard to the 70/30 division where I was speaking about all assets and superannuation together and her Honour has apparently misinterpreted that and excluded the superannuation. That being so I don’t think I could really address any further submission to the question of contributions.
I don’t, from the summary of argument, accept all the propositions put by the appellant, but that one in my submission is a problem with her Honour’s reasons and it’s misunderstanding, apparently, of what I put.
FINN J: What then do you say because – I put this to [counsel for the husband], that that’s game, set and match on contribution, isn’t it?
[COUNSEL FOR THE WIFE]: Yes, as far as error is concerned, yes, your Honour. That’s why the other errors don’t really matter.
…
MUSHIN J: And that results in a substantial error, doesn’t it?
[COUNSEL FOR THE WIFE]: Yes.
To his credit, counsel for the wife made the appropriate concession with respect to the error made by her Honour. In particular, his concession that it was "a substantial error", in our view, resulted in the appeal also being allowed on these grounds directed to the assessment of contributions.
CONCLUSION IN RELATION TO THE FIRST APPEAL
In his orders sought on the appeal, the husband asserted that effectively, the Full Court could substitute its discretion for that of the Federal Magistrate. However, during submissions before us, it was conceded that such a course was not open to the Court and that the matter would have to be remitted for retrial. We ordered accordingly.
THE SECOND JUDGMENT
On 29 November 2005 the parties had appeared before Loughnan JR and interim consent orders were made (“the 2005 orders”). Inter alia, the orders provided that the wife meet approximately 18.5 per cent of the parties’ joint liability to St George Bank and that the husband be responsible for the balance. The parties were also restrained from further drawing down on their line of credit.
Orders were not sought by either party at trial in relation to the continued servicing of the St George Bank facility and or payment of other outgoings of the former matrimonial home until it was sold pursuant to the orders of 22 February 2007.
On 19 July 2007 the wife filed a Form 2 Application in a Case seeking that the 2005 orders continue until such time as the first appeal was finalised, and further that the husband pay the arrears accrued on the facility since March 2007.
The husband argued that Housego FM was functus officio and the matter was listed on 15 October 2007 by consent, in relation to the jurisdictional issue. The wife submitted that the orders sought were machinery and/or consequential orders relating to the final orders and thus within the power of Housego FM.
On 24 October 2007 her Honour handed down her reasons for judgment and made the following orders:
(1)The husband be restrained from further increasing the debt with the St George Bank Business Maximiser Line of Credit account number …79.
(2)The wife keep up to date all outgoings in respect of the account referred to in paragraph 1 above as determined by the St George Bank form time to time depending on the interest rates up to the principal amount of $64,500.
(3)The husband keep up to date the balance of all outgoings in respect of the account referred to in paragraph 1 above as determined by the St George Bank from time to time depending on the interest rates.
(4)The husband bring up to date the arrears of accrued interest and principal in respect of the account referred to in paragraph 1 above since March 2007.
(5)The husband be solely responsible for keeping up to date all outgoings in respect of the Commercial Loan with St George Bank account number …67.
(6)The husband file written submissions in response to the wife’s costs application within 14 days from today’s date.
Her Honour found that she had the necessary power to make the orders requested by the wife and in her reasons for judgment her Honour relied on the judgment in In the Marriage of Ravasini (1982) 8 Fam LR 902 and In the Marriage of J H Molier and H van Wyk (1981-82) 7 Fam LR 18. In particular her Honour referred to J H Molier and H van Wyk (supra) at p 22:
It has been decided that while this court has no power to vary an order for property settlement, it has power to enforce the order and to modify the machinery provisions of the order to effect enforcement provided that this does not affect the substantive property rights of the parties: McDonald and McDonald (1976) 1 Fam LR 11,391; [1976] FLC 90-047; Kaljo and Kaljo (1978) 4 Fam LR 190; [1978] FLC 90-445. This power exists whether or not liberty to apply is reserved in respect of the order (as in order vi)).
THE SECOND APPEAL
In the circumstances, the second appeal may be dealt with in short compass. It challenges interim orders made by her Honour after the first orders and in anticipation of the first appeal. It was common ground before us that the application was listed before her Honour on the question of jurisdiction as to whether, as a result of making final orders, she was functus officio with respect to making any further order. It is also common ground that her consideration of this issue was immediately followed by a determination of the substantive issue contained in the interim application, essentially without notice to the parties.
There was an initial question on hearing of the second appeal as to whether the husband could bring it as of right or whether he needed leave. In the circumstances, and particularly given the concession referred to below, that appeared to become a moot point. However, this is a matter to which it will be necessary to return at the conclusion of these reasons.
The primary submission on behalf of the husband in support of the second appeal was that in deciding the substantive issue in the circumstances described above, her Honour failed to afford the parties procedural fairness which resulted in an appealable error. During submissions on the second appeal, counsel for the wife stated:
…no summary of argument’s [sic] been filed on our behalf because it seemed to me reading the material that the point taken is right about procedural fairness, and, indeed, contrary to the expectation of both sides it seems that her Honour went on to deal with the whole matter and, therefore, the other issues can’t arise and the consequences of that then would be that, no doubt, the court would then set aside the orders that her Honour made.
…
If the court concludes that the substantive appeal should be allowed, and while re-exercising the discretion here, of course, would always be preferable, I agree with my friend it seems to be too difficult if the court accepts even some of the grounds of appeal that a re-hearing seems virtually inevitable.
Again, to his credit, in making the above statement, counsel made an appropriate concession. It is clear that the second appeal had to be allowed and we ordered accordingly.
need for slip rule amendment to the orders made on 4 december 2007
Earlier in paragraph 46 of these reasons we referred to the question of whether or not leave to appeal was needed in relation to the second appeal.
Subsequent to the making of our orders on 4 December 2007, it was drawn to our attention that when the Appeal Registrar made procedural directions in relation to the two appeals on 22 November 2007, those directions proceeded on the basis that leave to appeal was needed in relation to the second appeal.
In these circumstances it is necessary for administrative purposes that we amend (pursuant to rule 17.02 of the Family Law Rules 2004) Order 4 of our orders made on 4 December 2007 to provide that, to the extent necessary, leave to appeal be granted to appeal the orders made on 24 October 2007.
Accordingly, we have included at the commencement of these reasons an amended set of orders which we will make when these reasons are delivered. An engrossment of those amended orders will then be issued by the Appeal Registrar.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 10 July 2009
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