MANUEL & PINNER
[2018] FCCA 735
•27 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MANUEL & PINNER | [2018] FCCA 735 |
| Catchwords: FAMILY LAW – Amendment to Orders pursuant to the Slip Rule – considerations in relation to the role of Courts “to quell controversies” on a final basis – consideration given to use of the limited public resources of Courts – proper use of the Slip Rule where the error in the Court’s Orders properly rested with the Court – general observations regarding “costs” in such circumstances. |
| Legislation: Family Law Act 1975 Federal Circuit Court of Australia Rules (Cth), pt.16, r.16.05 |
| Cases cited: AON Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175 Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 331 ALR 1 D’Orta-Ekenaike v Victoria Legal Aid & Anor (2005) 223 CLR 1 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303 J. Tarrant, Amending Final Judgments and Orders (Sydney: The Federation Press, 2010) |
| Applicant: | MR MANUEL |
| Respondent: | MS PINNER |
| File Number: | CAC 1658 of 2013 |
| Judgment of: | Judge Neville |
| Hearing date: | Decided on written submissions |
| Date of Last Submission: | 8 November 2017 |
| Delivered at: | Canberra |
| Orders pronounced: | 2 March 2018 |
| Date delivered: | 27 March 2018 |
REPRESENTATION
| Counsel for the Applicant: |
| Solicitors for the Applicant: | Evans Family Lawyers |
| Counsel for the Respondent: |
| Solicitors for the Respondent: | Farrar Gesini Dunn |
ON A FINAL BASIS, THE COURT ORDERS THAT:
Pursuant to Rule 16.05 of the Federal Circuit Court Rules 2001 (Cth), the Orders of the Court made on 24 March 2017 and 12 July 2017 be amended and be made on a final basis.
THE COURT FURTHER ORDERS THAT:
Pursuant to Orders of the Court made on 11 October 2017, the Father’s Contravention Application be listed for a half day Contravention Hearing on 2 October 2018 at 2:00pm in CANBERRA.
The parties are to file and serve an outline of submissions of no more than 2 pages, by close of business on 28 September 2018, in relation to the contraventions alleged by the Father.
IT IS NOTED that publication of this judgment under the pseudonym Manuel & Pinner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1658 of 2013
| MR MANUEL |
Applicant
And
| MS PINNER |
Respondent
REASONS FOR JUDGMENT
Introduction
On 2nd March 2018, the Court delivered oral reasons in relation to the status of Orders, previously made on 12th July 2017, concerning four discrete issues. The reasons that follow have been revised from the transcript.
The present contest, as just indicated, relates to the status of earlier-made Orders of the Court. Formally, it is an Application by the Father to have the July 2017 Orders amended under the “Slip Rule.” But there is actually more to it than this relatively straight-forward, procedural matter for determination, and not only because of the quite intense contest over the Application to amend the earlier Orders. Both subliminally and otherwise issues going to “the administration of justice”, the role and responsibility of a court “to quell controversies”, and the use of the public resources of the Court, were all (and remain) relevant considerations. In this regard, some basal points of principle need to be set out.
First, in D’Orta-Ekenaike v Victoria Legal Aid & Anor (“D’Orta”), the High Court stated, at [32]:[1]
Judicial power is exercised as an element of the government of society and its aims are wider than, and more important than, the concerns of the particular parties to the controversy in question … No doubt the immediate parties to a controversy are very interested in the way in which it is resolved. But the community at large has a vital interest in the final quelling of that controversy. And that is why reference to the “judicial branch of government” is more than a mere collocation of words designed to instil respect for the judiciary. It reflects a fundamental observation about the way in which this society is governed.
[1] D’Orta-Ekenaike v Victoria Legal Aid & Anor (2005) 223 CLR 1 at [32].
Secondly, there was further discussion of the responsibility of courts “to quell controversies” by the High Court in Attwells v Jackson Lalic Lawyers Pty Ltd[2] in which the Court further discussed the importance of the quelling of controversies for the purposes of “the administration of justice.”[3]
[2] Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 331 ALR 1 at [31] – [34] (French CJ, Kiefel, Bell, Gageler and Keane JJ).
[3] Ibid.
The “quelling of controversies” obviously relates to matters from high constitutional principle to the more prosaic, bordering (perhaps) on the almost trivial, accepting that all parties take their own matters with dread earnestness, and most do not have the benefit of knowing (or caring) about the impact that certain kinds of matters have on the speedy resolution of disputes involving the hundreds of other litigants before the Court. But whatever the characterisation and nature of the dispute, the Court is bound to determine the “controversy” that engulfs the parties.
Thirdly, of very particular note is the requirement that the Court have due regard to the proper and efficient use of the always scarce public resources of the Court.[4] Thus the determination and quelling of controversies does not come, in effect, with a carte blanche liberty for there to be no limits on litigants (and their legal advisors) in the conduct of litigation.
[4] See AON Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175; Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303.
It is against these principles that the following, almost plaintive if not exasperated, comments are made. I fear, however, to little practical effect. I hope, nonetheless, that my pessimism proves to be ill-founded.
At one level, to be blunt, this matter should not be [again] before the Court. On that level, it is another example of why family law has such a poor reputation for being either bedazzled or bedevilled or benighted by prodigiously profligate disputes that range from the serious and troubling, or such as here, discrete and almost a disgrace that they would consume judicial or other resources. That said, there is a procedural dispute as to whether the Orders of the Court made on 12th July last year were final or interim Orders.
Procedural history
On 14th March 2017, the parties attended Court for a directions hearing. They advised the Court that the matter had resolved in principle, save for four discrete issues which required judicial determination.[5] There was no direct indication as to whether this settlement was on a final or an interim basis, save for the solicitor for the Mother noting that upon determination of the discrete issues, “the parties would have final Orders in place....”[6]
[5] 14th March 2017, T 2.
[6] 14 March 2017, T 5.
On 22nd March 2017, the solicitor for the Respondent forwarded to Chambers a Minute of Consent Orders. This e-mail was copied to the solicitor for the Applicant. In neither the e-mail nor the attached Minute was there specification as to whether the Orders set out in the Minute were to be made on a final or interim basis.
On 24th March 2017, the Court made Orders in Chambers in the terms of the Minute sent via e-mail previously, on an “interim basis.” The matter was also adjourned pending judgment delivery in relation to a number of discrete issues. The parties filed written submissions in relation to those discrete issues on 21st March 2017.
On 12th July 2017, the Court delivered brief oral reasons and made Orders in relation to the four outstanding issues. These Orders were stated, on the face of the Orders, to be made on an “interim basis”. The matter was given an adjourned date.
On 6th September 2017 the Father filed a Contravention Application; that Application remains pending.
On 11th October 2017, the matter was listed for directions. On that occasion the solicitor for the Mother contended that the Orders of 12th July 2017 (and by extension the Orders made in Chambers on 24th March 2017 by consent, addressing substantive parenting issues), should have been made on a final basis, and sought an amendment pursuant to the Slip Rule. The solicitor for the Father argued that the Orders were properly made as interim Orders, and should remain so. The Court then made procedural Orders for the filing of an Application in a Case and accompanying submissions in relation to this specific “controversy” regarding the status of the earlier-made Orders.
On 24th October 2017, the Mother filed an Application in a Case and written submissions seeking that the Court’s Orders be amended pursuant to the Slip Rule and made on a final basis. Among the many Orders outlined, no Order was sought in relation to costs. In my view, this was proper and appropriate given the nature of the Application, which sought no substantive relief but rather only procedural relief pursuant to the “Slip Rule.” In my view also, it was even more apposite that no Order was sought regarding costs because, in significant measure, the problem regarding the Orders arose because of a mis-description of them by the Court. And it is precisely in circumstances where there has been such an error that the Slip Rule is intended to be applied, and why it is proper to apply it here.
In further support of such a view and course to amend under the Slip Rule, I note the following further points of principle from unchallenged authority.
First, in Gould v Vaggelas the High Court observed that a Court’s discretion to amend Orders is something that should be “exercised sparingly.”[7]
[7] Gould v Vaggelas (1985) 157 CLR 215 at pp.274-275.
Secondly, by reference to a decision of the Court of Appeal of the New South Wales Supreme Court, which in turn relied upon an old decision of the House of Lords (neither of which I need cite), Woodward J in the Federal Court observed that it was “well settled” that a Court has power at any time to correct an error in an order arising from a slip or accidental omission, whether or not that power is conferred expressly on the Court by the Slip Rule.[8] Such is the case here. And, in any event, the relevant power of the Court to correct or relevantly to amend Orders is plainly set out generally in Part 16, and in particular, Rule 16.05, of the Federal Circuit Court Rules 2001.
[8] See the discussion in Westsub Discounts Pty Ltd v Idaps Australia Ltd (No.2) (1990) 94 ALR 310 at pp.314-315. Generally, see the authorities collected and the discussion in J. Tarrant, Amending Final Judgments and Orders (Sydney: The Federation Press, 2010).
Submissions on behalf of the Mother
The Mother’s submissions were as follows:
The History of the Proceedings
1) These parenting proceedings were commenced by the Father on 11 November 2016. At the first return date on 14 March 2017, the parties reached agreement as to final orders about most issues. Final parenting orders reflecting those agreed matters were issued by the Court on 24 March 2017. The second page of the orders, prepared by the Court, describes the orders as being made on an interim basis but Minute of Proposed Consent Orders does not.
2) The issues remaining in dispute concerned telephone communication; first option to care provisions; Christmas Day changeover time; and Easter-time living arrangements. Orders providing for written submissions in relation to those issues were made at the first return date.
3) Written submissions and supporting affidavits were duly filed by each of the parties on 21 March 2017. Nothing in the submissions or affidavits of either party suggests an understanding that the issues remaining in dispute were to be resolved by the Court on an interim basis only. It is clear that both parties sought final orders: see Mother’s Affidavit at [10]-[12]; Mother’s Submissions at [1]; Father’s Affidavit at [4]-[5d] (under the heading of Outstanding Issues for Final Parenting Orders”); Father’s Submissions at [1]. Neither of the parties’ submissions refer to any of the case law on interim parenting orders. Neither of the parties’ Minutes of Orders Sought (the Father’s Minute is part of his Affidavit from [42]-[47]) proposed a further Court date in the proceedings. Both Minutes proposed additional parenting orders that are capable of operating throughout the child’s minority. The Mother’s Minute was entitled “Final Minute of Orders Sought by the Respondent Mother”.
4) On 12 July 2017, ex tempore reasons were delivered in support of Orders made on that day. The orders dealt with each of the four extant issues in dispute. The written Orders include an order adjourning the proceedings for “further directions” on 11 October 2017. The Orders are prefaced with “until further order, the court orders”. The recollection of the solicitor who attended to collect judgment on the Mother’s behalf was that the adjourned date was not mentioned in the oral reasons, and that nothing in the oral reasons delivered suggested the parenting orders made on that day were intended to be interim as opposed to final.
5) On 23 August 2017 the Father filed an Application in a Case seeking three parenting orders. The Application does not characterize the orders sought as interim or final but the use of an Application in a Case rather than an Initiating Application or Amended Initiating Application suggests the orders sought are interim in nature (see the definition of “Application in a Case” in the Dictionary to the Federal Circuit Court Rules 2001 (Cth)). The orders sought in the Application in a Case go to three of the four issues (telephone communication; first option to care provisions; and Christmas Day changeover time) dealt with in the 12 July 2017 Orders. Different orders are sought in respect of those topics than were sought by the Father in his 21 March 2017 Minute of Orders as contained in the Affidavit filed that day. The Application does not seek to discharge the 12 July 2017 parenting orders, but it seems that the intended effect of the orders sought in the Application is to overtake the 12 July 2017 parenting orders. The Affidavit filed in support of the Application in a Case essentially offers a critique of the 12 July 2017 Orders. Concerns are raised as to Christmases from now through to 2028. No specific evidence is given as to the issues caused by the 12 July 2017 Orders in practice other than un-particularized complaints of “confusion” at [7] and that neither party “know[s] exactly what is happening”. Despite the Father’s admitted confusion he felt apparently confident enough in his understanding of the effect of one aspect of the 12 July 2017 Orders (telephone contact) to file an Application for Contravention Orders against the Mother on 6 September 2017. The Mother is said to have contravened that order by only facilitating two telephone calls in a specified week between the Father and the Child as opposed to the (in the Father’s view) mandatory three.
The Future of the Proceedings
6) It is clear that the intention of the parties was for both the 24 March 2017 Orders to be final and for the Orders ultimately made by the Court on 12 July 2017, in response to the submissions, Minutes of Orders, and Affidavits filed 21 March 2017, to also be final. The Father now seeks to take advantage of an administrative error or oversight by the Court in setting the matter down for a further directions hearing and marking the 12 July 2017 Orders as interim, to re-argue issues that he failed to succeed on in the contest leading to the 12 July 2017 Orders.
7) The Court should, subject to one minor change set out later in this paragraph, re-make both sets of orders into a consolidated, single set of final parenting orders. The Christmas order (Order 4 of the 12 July 2017 Orders) has a changeover time but no start or end time. In the Minutes filed 21 March 2017, both parties agreed that the start time of the Christmas period would be 4:00pm Christmas Eve and the end time would be 4:00pm Boxing Day, and that the Mother would have the first session in odd numbered years and the second in even number years (and vice versa for the Father) ([46] of the Father’s Affidavit, [2] of the Mother’s Minute). The Court should invoke the Slip Rule (per Rule 16.05(2)(e), (g) or (h)) to correct that slip in an order that incorporates the Court’s previous decision as to changeover time (Order 4 of the 12 July 2017 orders). If the Father wants to seek further amendments to the final parenting orders he should file a fresh Initiating Application. In doing so he would need to reckon with the Rice & Asplund ‘guideline’.
8) The Application in a Case should be dismissed. The Court has already dealt with the issues raised by that Application. In the event the Court is minded to deal with the Father’s Application in a Case, the Court should do so on the papers. The Mother would seek to rely on her 21 March 2017 Affidavit, submissions, and Minute of Proposed Orders in that regard. Her position on the issues raised in the Application in a Case has not changed since she filed those documents.
9) The Contravention Application can be dealt with at a later date convenient to the Court. The Mother’s defence to that will be that she did not contravene the order because the two telephone calls in a given week met her obligation to ensure the child had “telephone communication with the non-resident parent on no more than 3 occasions per week and any other time that the child expresses a wish to do so (Order 1, 12 July 2017, emphasis added).
Submissions on behalf of the Father
The Father’s submissions were as follows:
1) The father asserts that Orders made on 12 July 2017, consistent with the face of the Orders, are interim in their nature. A sealed copy of the Orders was handed to the parties (or the relevant legal practitioner) on the day, contemporaneous with the delivery of an oral judgement of the Court. It is therefore clear that the Orders were prepared in advance of the court event of 12 July 2017, and it can be assumed were drafted consistently with the judgement delivered that day.
2) The Orders clearly identify the Orders as being made “pending further order” and an adjourned date was set for the matter to return to the court following 12 July 2017.
3) Nothing in the Orders or the judgement of the Court indicates, or could be reasonably construed as indicating, that the Orders were intended to be final and that the matter was to have been dealt with on 12 July 2017 on anything other than, an interim basis.
4) The mother asserts that the interim orders made on 12 July 2017 are an error from the Court or an administrative oversight. This interpretation is not reasonably open on the face of the Orders made. For the mother to assert that the orders were final in nature would have required the Court to have determined the parties parenting matters in dispute on a summary basis. No orders or directions of the Court were made that by implication or inference, could be construed as the Court having intended to deal with the parties parenting matters on a summary basis.
5) Since the Orders of 12 July 2017, the mother has not sought to remedy the asserted error of the Court either by way of Appeal or by further application to the Court until some three months later. It is suggested that the mother’s acquiescence to the Orders made has only been disturbed by the filing of the father’s Contravention Application and his Application in a Case.
6) Rule 10.03 of the Federal Circuit Court Rules provides for the fixing of a date for final hearing. To date that Rule has not yet been complied with and the matter remains to be fixed for final hearing in respect to the outstanding parenting matters. For the Court to determine on a final basis parenting matters without fixing the matter for a final hearing would have required the court to have made orders and directions putting both parties on notice that the Court intended to resolve the matter on a summary basis. The Court did not do so and it can therefore be reasonably inferred that it did not intend to do so.
7) The preparation of the father’s written submissions attended to the matters that remained in dispute on an interim basis. Nothing on the face of the written submissions indicates that they should be read as either interim or final in their nature. However, it was the father’s understanding that the submissions were intended to deal with matters on an interim basis only.
8) It is not open for one party to assert that Orders be read as final in their nature when no step has been taken by the court to resolve the matter on a final basis (i.e. the setting down of the final hearing, the filing of any additional or further evidence by any other witness, the preparation of an expert’s report (where appropriate), the testing of evidence by cross-examination etc).
9) In the absence of specifically addressing that the matter was to be resolved on a final basis by the filing of written submissions, it can only be concluded that the Court intended the matter to be determined on a further interim basis and for the matter to be progressed thereafter.
10) It is irrelevant that the interim orders can be construed as operating on a final basis throughout the minority of the child.
11) Where the Court has issued orders contemporaneous with a judgement and those Orders clearly indicate they are interim in nature, it is the obligation of the mother to demonstrate that an error has been made either by act or omission by the Court. It is submitted by the father that she has not so demonstrated that there is an error on the face of the orders. Accordingly, the interim orders should remain as issued by the Court.
Consideration and disposition
When the Orders of 12th July 2017 were pronounced, those reasons began by noting that the parties had resolved all outstanding issues and that there remained four discrete matters for the Court to determine.[9]
[9] 12th July 2017, T 2.
In my view, it is clear on the basis of those reasons that but for these four outstanding issues, everything else had been resolved. It must follow that once those four issues were determined, the whole of the matter would be finalised. Indeed, this is precisely what was put in oral submissions on 14th March last year by the solicitor for the Mother.[10] Moreover, if all else had been resolved on a final basis by the parties, one might ask rhetorically, why would any party or any properly instructed lawyer seek only interim orders with respect to the four discrete remaining matters? Indeed, respectfully, it would defy logic to have made final orders by consent regarding everything else and keep these four matters regarding (a) telephone time, (b) first option care, and time at (c) Christmas and (d) Easter as ongoing matters.
[10] 14th March 2017, T 5.
Logically, it follows that the Orders made by Consent in Chambers on 24 March 2017 should be amended under the Slip Rule and also made as Final Orders. By reference to the transcript of 14 March 2017, the parties indicated that there remained only a few “discrete issues”[11] and that after the making of Orders in relation to the outstanding discrete issues “the parties would have final Orders in place and the matter would be able to be removed from ... [the] list.”[12]
[11] 14th March 2017, T 2.
[12] 14 March 2017, T 5.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 27 March 2018
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