Lovine & Connor & Anor (No 2)

[2011] FamCA 535

FAMILY COURT OF AUSTRALIA

LOVINE & CONNOR AND ANOR (NO 2) [2011] FamCA 535

FAMILY LAW - PRACTICE AND PROCEDURE - Amendment under slip-rule – consideration of whether slip-rule or Rule 17.02 applies
FAMILY LAW - PRACTICE AND PROCEDURE – consideration of doctrine of functus officio

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Child Support (Assessment) Act 1989 (Cth)

Brew v Whitlock (No 3) [1968] VR 504 Burrell v The Queen [2008] 238 CLR 218 Noetel v Quealey, (2005) FLC 93-230 Russell & Russell (1999) FLC 92-877 Sangara v Hamwood (2007) FamLR 237
APPLICANT:	Mr Lovine

FIRST RESPONDENT: Ms Connor

SECOND RESPONDENT: X Investments Pty Ltd

FILE NUMBER: MLC 9419 of 2009

DATE DELIVERED: 12 July 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: By written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ackman QC
Ms Johns

SOLICITOR FOR THE APPLICANT:	Taussig Cherrie & Fildes
COUNSEL FOR THE RESPONDENT:	Mr St John SC Mr Dickson

SOLICITOR FOR THE RESPONDENT: Lander & Rogers Lawyers

IT IS ORDERED BY CONSENT THAT

1. Paragraph 12 of the Orders made on 10 June 2011 be amended to read as follows, the amendments thereto being indicated in bold hereunder:         

   No later than 10 September 2011 or any such other time as may be agreed between the parties in writing:

   (i)The Second Respondent pay to the Wife the cash sum of $655,618, this being an amount not more than would have been required to discharge the Second Respondent’s obligation to the Wife, had the Second Respondent and the Wife been dealing with each other at arm’s length; and

   (ii)The Husband pay or cause to be paid to the Wife the sum $2,576,836

   (collectively “the payment”).

IT IS FURTHER ORDERED THAT

1. The applications by way of written submissions filed pursuant to paragraph 20     of the said Orders be otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Lovine & Connor and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9419 of 2009

Mr Lovine

Applicant

And

Ms Connor

Respondent

REASONS FOR JUDGMENT

introduction

1. On 10 June 2011 I delivered reasons for judgment ("the judgment") and made orders ("the orders") determining competing applications between the parties with regard to parenting of their children and alteration of property interests.  The orders provided liberty to the parties to apply on a specified written timetable -

   … for costs or any other order incidental to or arising out of these orders … .

2. Pursuant to the order referred to in the previous paragraph, the wife has made an application for a departure from the administrative assessment of child support pursuant to the Child Support (Assessment) Act 1989 ("the Child Support Act"). It has been submitted on her behalf that I omitted to determine that issue in the judgment.

3. In response, it has been submitted on behalf of the husband that I did determine that issue and that accordingly, I am functus officio in respect of it.  Further, it is submitted on behalf of the husband that the parties have agreed on amendments to the parenting orders contained in the orders.  The wife denies any such agreement.

4. Accordingly, I must first determine whether I have the power to consider one or both of those applications.  If I have that power, I must then make such determination.

Material relied on

1. In my consideration of these applications, I have had regard to the following material:

   ·written submissions on behalf of the wife dated 21 June 2011;

   ·written submissions on behalf of the husband in response filed on 30 June 2011;

   ·written submissions on behalf of the wife in reply filed on 5 July 2011

   ·the judgment;

   ·the orders; and

   ·transcript of proceedings on 29 June 2011.

Relevant facts

1. The orders contained detailed provisions resolving issues of parenting and alteration of property interests between the parties.  Paragraph 20 of the orders provided:

   All extant applications be otherwise dismissed.

   No order was made with respect to child support.

2. The issue of a departure from the administrative assessment of child support between the parties was before me in the substantive proceedings.  The parties had received an administrative assessment of child support from which they had partially agreed to depart.  The essence of the departure was that the husband was to pay what is sometimes referred to as "extras", being private school fees, medical expenses, excursions and other matters.  During final addresses, counsel for the husband tendered exhibit H4 which was an aide memoire providing written submissions in support of their client's case.  The document contains detailed references to the issue of child support.  It specifies a number of expenses which the husband had agreed to pay including private school expenses, various ancillary matters related to schooling, health expenses and extra-curricular activities.  They are referred to in detail at paragraphs 76-77 of that document.

3. The document referred to in the previous paragraph also asserted, and it does not appear to be denied, that there had been an administrative assessment of child support dated 24 March 2010, pursuant to which the husband was required to pay child support for each child in the sum of $123.69 per week being a total of $247.38 per week.  It was also asserted, and not denied, that despite that assessment, since 5 May 2010 the husband had agreed to pay child support in the sum of $225 per child per week being a total of $450 per week.

4. The wife's departure claim in the substantive proceedings was that the husband be required to pay the sum of $750 per child per week being a total of $1500 per week.  Accordingly, the parties were agreed on all aspects of child support other than the weekly payment. 

5. At paragraph 183 of the judgment, in my consideration of the future factors pursuant to subsection 75(2) of the Family Law Act 1975, I held as follows:

   183. The parties have consented to a departure from the administrative assessment of child support.  The husband will continue to pay all the tuition fees at [G private school] or any other school which the parties agree that the children should attend.  In addition, he will continue to pay for school books and uniforms as agreed together with private health insurance, other reasonable medical, dental and like expenses and extracurricular activities.

   It is clear from all the material that I was in error in finding that the parties had "consented" to a departure as indicated therein.  While they had agreed to the husband making the various payments referred to above, they had not agreed on the quantum of the ongoing sum to be paid by him on a weekly or monthly basis.  The dispute was as between the administrative assessment as asserted by the husband and the sum of $750 per child per week as asserted by the wife.

6. At paragraph 191 of the judgment, I held as follows:

   191. The wife will move to live with the children in [R Suburb property] when its renovation is completed.  That will also constitute high standard accommodation.  She will need to provide all the necessary and desirable requirements of herself and the children over and above their education, medical and like needs and also secure her own future.  The lump sum payment which the husband will be required to (sic) enable her to achieve that.

   Again, I was in error in holding that the wife was "to provide all the necessary and desirable requirements …" over and above the items being paid by the husband excluding the weekly payment.  I did not take into account the dispute over the weekly payment.

7. Accordingly, it is clear that I was mistaken in my treatment of the issue of child support in the substantive proceedings.  I have omitted to determine an issue on which the parties sought my determination in the substantive proceedings. I must therefore consider whether I am now able to determine the dispute between the parties with regard to the proposed weekly payments of child support by way of departure by the husband.

The present applications

1. It is submitted on behalf of the wife in the present application that I should proceed to determine that issue and that I have jurisdiction and power to do so. She seeks an order pursuant to the Child Support Act that there be a departure from the administrative assessment of child support providing for the husband to pay the sum of $750 per child per week, a total of $1500 per week.

2. It is submitted on behalf of the husband that while I have jurisdiction to hear the application, I do not have power.  The foundation of that submission is that it cannot be heard pursuant to the slip rule as it involves the exercise of an independent discretion which is beyond the reach of that rule.  It is submitted that essentially, I am functus officio in respect of all issues which were before me in the substantive proceedings.

3. In reply, it is submitted on behalf of the wife that to the extent that there may have been any barrier to my consideration of the substantive issue, a submission made by senior counsel for the husband at a hearing to which I will refer below has conceded the point and accordingly has acknowledged that I have power to hear the matter. Alternatively, it is submitted that I have the power to hear it within the confines of Rule 17.02 of the Family Law Rules 2004 ("the Rules").

4. I note that both parties seek other orders outside the area of child support.  I will consider those after my determination of the child support issue as the findings on that issue will impact on those other orders.

The rules

1. Rule 17.02 of the rules is in the following terms:

   17.02Errors in orders

   (1)      If a party claims that there is an error in an order issued by the court, the party must give written notice of the error to the Registry Manager and all parties.

   (2)A Registrar may rectify an error that appears obvious on reading the order.

   (3)If the Registrar:

   (a)is in doubt about whether there is an error in an order; or

   (b)believes that an error in an order has, or may have, arisen from an accidental slip or omission;

   the Registrar may take action under subrule (4).

   (4)      If subrule (1) or (3) applies, the party or Registrar may, after giving reasonable notice to each party, refer the order to the judicial officer who made it.

   (5)      A judicial officer may, after giving each party a reasonable opportunity to be heard, rectify a suspected error referred to the judicial officer.

   As I will develop shortly, in my view that Rule does not assist the wife in achieving what she seeks.  The problem is the same as that relating to the slip rule which I now consider.

The slip rule

1. Ultimately, the dispute between the parties concerns the question of whether the slip rule provides the remedy which the wife seeks.  It is submitted on behalf of the wife that the husband, through his senior counsel, has conceded that I have the power to consider the wife's application pursuant to the slip rule.  Initially, I consider that submission.

2. On 29 June 2011 I referred this matter into Court to seek submissions arising out of a remark made to me in a private conversation by senior counsel for the husband with regard to my decision in the substantive proceedings.  I had already delivered the judgment and had received, but not read, the first of the written submissions on behalf of the wife referred to above.  The issue which I raised with counsel for both parties was whether the statement to me by senior counsel for the husband amounted to an allegation of actual bias in the substantive proceedings as a result of which I should be required to disqualify myself from hearing any matter including the present applications.  The outcome of that issue was that I decided, with the approval of counsel on behalf of their respective clients who were present in court, to consider and determine these applications.

3. During an exchange between myself and senior counsel for the husband, I said:

   … the parties do not suggest that I am functus officio in respect of the child support matter, and I am [seized] of it.

   It is submitted on behalf of the wife that senior counsel for the husband did not challenge that proposition.  Counsel wrote:

   The submissions now made relating to the "slip rule", given events at the hearing on 29 June 2011, are extraordinary.  Justice Mushin confirmed his oversight during the 29 June hearing.  During that hearing [senior counsel for the husband] properly conceded that the Court was not functus officio.  The substantive debate took place related to the concerns of Justice Mushin whether he, or another judicial officer, should continue to determine the part-heard child support issue.  Such debate was otiose if it was being asserted by [senior counsel] that the court is functus officio.

   The transcript of the proceedings on 29 June 2011 does not disclose a concession by senior counsel for the husband that I am not functus officio in these applications.  The submission to that effect relies on the fact that senior counsel did not dispute my formulation of that proposition.  I find that that does not amount to a concession.  That finding is fortified by the fact that the written submission on behalf of the husband filed on the following day fundamentally relies on the doctrine of functus officio.

4. The essence of the slip rule is that it is available for the correction of accidental errors or omissions but is specifically not available to consider a substantive matter arising out of the proceedings, particularly one which requires the exercise of an independent discretion. Russell & Russell (1999) FLC 92-877, Brew v Whitlock (No 3) [1968] VR 504. The rule's most recent enunciation was by the High Court of Australia in Burrell v The Queen [2008] 238 CLR 218 per Gummow A-CJ, , Hayne, Heydon, Crennan and Kiefel JJ:

   [21] 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.

   …

   [28] 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. (references omitted)

5. It is submitted on behalf of the wife that the decision of Boland J in Sangara v Hamwood (2007) FamLR 237 supports the availability of the slip rule in these circumstances. A Federal Magistrate had delivered a final judgment in proceedings. Her Honour had omitted to consider the question of costs. By use of the slip rule, the costs issue between the parties was heard and determined. On appeal, Boland J held that the decision at first instance to determine the costs application was correct and dismissed the appeal. Boland J held:

   24.  It is clear from the transcript that it was not the court's intention to dismiss either party's application for costs.  As already noted, the mother brought to the court's attention her applications for costs during the course of the hearing.  Unfortunately, she did not raise it again and her application was not heard.  I am satisfied the order dismissing all outstanding applications should not have been made given neither party's application for costs had been heard.

   In reference to the scope of the slip rule, her Honour held:

   58.  The slip rule has been considered and applied in many cases (see Noetel v Quealey... . The rule permits the correction of an accidental slip or error which does not involve the exercise of discretion.  It has been applied by judicial officers in various situations.

6. In Noetel v Quealey, (2005) FLC 93-230, the Full Court held:

   62.  The slip rule is a well-settled common-law convention which allows for an error arising from an accidental slip or omission or an ambiguity or infelicity of expression not of substantive significance to be corrected at any time by a judge by further order.

   The Court then adopted the formulation of the slip rule referred to at paragraphs 67-73 of Russell's case, referred to above.

7. In this matter, I have mistakenly found that the parties had agreed on all aspects of child support and did not have regard to the dispute between them with regard to the wife's application for departure from administrative assessment as it related to the weekly amount to be paid by the husband.  Regrettably, that was not an accidental error or omission.  It can only be categorised as an incorrect finding.

8. Accordingly, a determination of the outstanding issue of a departure from the administrative assessment of child support would constitute a further substantive hearing which would require the independent exercise of discretion in accordance with the relevant provisions of the Child Support Act. Such a process takes the wife's application outside the ambit of the slip rule and must therefore be dismissed.

Parenting orders

1. The orders contained detailed provisions for the parties to spend time and communicate with the children at various times including the children's birthdays and the parties' birthdays.  The husband seeks an order varying those orders and asserts that such a variation is by consent.  It is clear from the submissions on behalf of the wife that she does not consent to that variation.  Accordingly, as it involves a substantive consideration requiring the exercise of an independent discretion and there is no consent to my hearing it, the husband's application must be dismissed.

Amendment by consent

1. The parties are agreed on the amendment of paragraph 12 of the orders with regard to the details of payment of the moneys due by the husband to the wife in accordance with the orders.  I will make that amendment by consent.

Conclusion

1. I will amend paragraph 12 of the orders as indicated above on the basis that such amendment is by consent.  I will dismiss the husband's application for a variation of the parenting orders as detailed above.

2. The wife's application for a determination of the issue of a departure from the administrative assessment of child support will be dismissed as being outside the scope of the slip rule.

3. While I have determined that the submissions on behalf of the husband with regard to the unavailability of the slip rule to determine the application referred to in the previous paragraph are to be accepted, on the basis of my extensive and detailed involvement in this matter it is appropriate that I make one further comment.

4. The attitude taken by the husband, while correct at law, produces a regrettable result to the extent that the substantive application of the departure from the administrative assessment of child support has not been heard on its merits.  It is possible that the wife has other remedies which may be more time-consuming, stressful and expensive than the one which she proposed.  Only time will determine the wisdom of taking that approach, particularly in light of my comments during the hearing of the substantive proceedings that the best interests of the parties' children would be served by an end to the litigation between their parents.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin delivered on 12 July 2011

Associate: 

Date:  12 July 2011