Oldridge and Oldridge
[2020] FCCA 298
•14 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OLDRIDGE & OLDRIDGE | [2020] FCCA 298 |
| Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Slip rule – application to vary order of the Court under rule 16.05 of the Federal Circuit Court Rules 2001 – whether an order had already been discharged by a previous decision of the Court – whether the slip rule is applicable – whether there was a clerical mistake, accidental slip or omission – whether the orders in question reflect the Court’s intention at the time the orders were made – held slip rule applicable – orders varied – alternately section 137 of the Child Support (Assessment) Act 1989 (Cth) is applicable. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.16.05 |
| Cases cited: Flint v Richard Busuttil & Co Pty Ltd (2013) 216 FCR 375 |
| Applicant: | MR OLDRIDGE |
| Respondent: | MS OLDRIDGE |
| File Number: | BRC 320 of 2012 |
| Judgment of: | Judge Howard |
| Hearing date: | 16 October 2019 |
| Date of Last Submission: | 16 October 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 14 February 2020 |
REPRESENTATION
| The applicant attended as a self-represented litigant. |
| The respondent attended as a self-represented litigant. |
| Solicitors for the Respondent: | Northside Family Law Centre |
ORDERS
The order of the Court dated 6 September 2017 is varied by adding the following order as paragraph 15:
“15. That paragraph 7 of the Orders made by this Court on 4 February 2016 is discharged or, alternatively, in the special circumstances of this case, and pursuant to section 137 of the Child Support (Assessment) Act 1989, paragraph 7 of the Orders made by this Court on 4 February 2016 is discharged.”
IT IS NOTED that publication of this judgment under the pseudonym Oldridge & Oldridge is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 320 of 2012
| MR OLDRIDGE |
Applicant
And
| MS OLDRIDGE |
Respondent
REASONS FOR JUDGMENT
This family law litigation has a long history. Proceedings were commenced initially on 16 January 2012. Initially it was an application for consent orders in respect of parenting and property. The final order was made on 21 March 2012.
By the final order made on 21 March 2012, the children were to live primarily with the mother and spend time with the father.
A fresh application was filed and proceedings commenced again in 2014. On that occasion, it was the mother who filed an initiating application on 13 June 2014.
The litigation ensued through 2014 and 2015.
On 4 February 2016, the parties appeared in Court. They both attended as self-represented litigants. The parties asked the Court to make final orders by consent. The parties agreed that the mother would have sole parental responsibility in respect of health and education for the two children (X born in 2000 and Y born in 2003). In relation to other issues the parents agreed to equal shared parental responsibility. The parties also agreed that the children would live primarily with the mother and spend time with the father. Also, by that order, the parties requested the Court to make (and the Court did make) the orders contained in paragraphs 6, 7 and 8. Those orders state:-
“6. That the parties Binding Child Support Agreement dated 19 March 2012 be set aside.
7. That the father shall pay to the mother the following child support in respect of the two children:
a) private health insurance for each child up to the time that the child reaches the age of 18 years;
b) in addition to (a) the father shall pay $13,250 per year in weekly instalments of $254.81 for X born in 2000 up until the date that X reaches the age of 18 years; and
c) in addition to (a) and (b) the father shall pay $13,250 per year in weekly instalments of $254.81 for Y born in 2003 up until the date that Y reaches the age of 18 years.
8. That the child support payments referred to in this Order represents the full child support obligations of the father. The mother shall not claim any further child support from the Child Support Agency.”
To say the least, the situation did not progress well for this family. In November 2016 the mother moved the child Y from A School to the B School. The father did not agree with this change of school for Y.
In early 2017, Y stopped spending time with his father.
Further, the child X moved residence to live with the father. This also occurred in early 2017. At that time X was 17 years old. X had decided that she preferred to live primarily with the father.
On 6 March 2017, the father filed an initiating application. Interim orders were made on 26 April 2017, including an order that X live with the father, that Y live with the mother and that a family report be obtained.
Ms C prepared a family report and her affidavit annexing the family report was filed on 21 July 2017. On that date, the Court ordered the appointment of an Independent Children's Lawyer. On 18 August 2017, the Court issued an order setting the matter down for an interim hearing.
The interim hearing took place on 6 September 2017. The father was represented by Mr Mitchell, Solicitor. The respondent mother attended as a self-represented litigant. Ms Mannering, Solicitor, appeared as the Independent Children's Lawyer. The Court decided that it was in Y’s best interests for him to move residence and to live with the father and made Orders accordingly. The Orders also provided that the child X was to live with the father and spend time with the mother as X decided.
The Court also made an order on 6 September 2017 that the father should have sole parental responsibility for the making of all decisions on major long-term issues in respect of the children. Before making the sole ultimate decision the father was to consult with the mother.
The Court also concluded that it was in Y’s best interests for him to spend supervised time with his mother at a contact centre and that such an arrangement was to continue until it was otherwise agreed or ordered.
The Court provided ex-tempore reasons for judgment, which have recently been settled and provided to the parties because a dispute has arisen in relation to an aspect of the orders made following the delivery of the ex-tempore reasons for judgment.
The matter which is currently for determination by the Court relates to an Amended Application in a Case filed by the father on 1 October 2019. By that Amended Application in a Case, the father seeks the following order:
“That order 7 made 4 February 2016 is discharged and the effective date for this discharge is noted as 6 September 2017.”
In the father’s affidavit filed 5 October 2019, the father further particularises his submission. On page 7 of 24 under the heading, “interim orders sought by the father”, it is noted:-
“Further or in the alternative
That pursuant to Rule 16.05 (2)(e and/or h) of the Federal Circuit Court Rules, the order made by this Court on 6 September 2017 is amended by including the following:
That order 7 c) made 4 February 2016 is also discharged and that such discharge shall apply from 6 September 2017.”
It is to be noted that when the matter was mentioned in Court on 24 September 2019, the mother consented to the discharge of paragraph 7 (b) of the final order made on 4 February 2016. The mother stated that once X went to live with her father at the beginning of 2017 – the father stopped paying child support in accordance with paragraph 7 (b) (of the orders of 4 February 2016). Given that the child X had commenced living with her father on a full-time basis at the beginning of 2017, one can fully understand why it is the case that the father took the view that he ought not to be required to continue to pay child support to the mother in respect of the child X. Notwithstanding that reasonable view by the father – the matter should have been formalised by means of an application to vary the order. In any event, the mother has since agreed to the discharge of paragraph 7 (b).
The parents remain in dispute in relation to paragraph 7 (c) of the order made on 4 February 2016. At this stage the Court has been asked to determine whether or not the order contained in paragraph 7 (c) is to continue to operate or whether it should be discharged. Further, if it is to be discharged, then one matter for consideration is – from what date should the order be discharged?
When the matter was mentioned in Court on 24 September 2019, it became apparent that the father’s argument may involve a consideration of the slip rule. The matter was adjourned for hearing until 9 October 2019. On 9 October 2019 it was apparent that more time would be needed for the hearing and it was adjourned until 16 October 2019.
The matters for consideration require a review of the events in Court on 6 September 2017. Ms Mannering, the Independent Children's Lawyer, read out to the Court certain emails and stated her recollection of the events of 6 September 2017. Ms Mannering has now filed and served an affidavit on 11 October 2019, annexing the emails in question and stating her recollection of what occurred following the Court hearing on 6 September 2017.
On 9 October 2017, the Court made available for the parties a copy of the transcript of proceedings from Wednesday, 6 September 2017. Initially the parties were permitted to view the transcript in the subpoena room at the Commonwealth Law Courts building in Brisbane. Subsequently, the Court ordered that the parties be permitted to retain a copy of the transcript until the matter was finalised and at such time, the transcript was to be returned to the Court without the making of copies or the dissemination of the document.
Also on 9 October 2019, the Court provided to the parties the settled reasons for judgment which had been delivered ex-tempore on 6 September 2017.
The primary focus of the Court on 6 September 2017 was a best interests consideration in relation to the child Y. The Court decided that, in Y’s best interests, he should move residence from the mother and live primarily with the father. The Court also ordered at that time that the child’s time with the mother needed to be supervised at a Contact Centre.
The father’s solicitor (Mr Mitchell) had prepared a draft order. That order was given to the Independent Children's Lawyer and to the mother and was subsequently handed up to the Court by the Independent Children’s Lawyer. The draft order itself is in fact exhibit 1 in respect of this application.
It is, of course, permissible for the Court to have regard to the record of its own proceedings as contained in the transcript dated 6 September 2017. A copy of the transcript is exhibit 2 in this application.
The Court, having decided that Y should live primarily with the father – stated that the orders would be made as per the draft handed up by the Independent Children's Lawyer – plus an additional order. At page 28 of the transcript, it states:-
" HIS HONOUR: I am going to make the orders that the ICL has handed up, plus the additional order referred to. Ms Mannering, I want you to email that to the court.
MR MITCHELL: Not forgetting, your Honour, I’ve made that error in ‑ ‑ ‑
HIS HONOUR: Yes. That paragraph. Indeed, it should be changed so it’s paragraph number 6.
MR MITCHELL: It is.
HIS HONOUR: Says “into effect order number 5” – I understand – on the first line. Nothing else, Mr Mitchell?
MR MITCHELL: No, thank you, your Honour.”
Mr Mitchell had pointed out to the Court that there was a variation in paragraph 6 of the draft order. The reference in the first line to “order number 6” – should have been a reference to – “order number 5”.
It is apparent from the transcript that the Court had decided to make the orders handed up by the Independent Children's Lawyer. This is also apparent from the reasons for judgment delivered on 6 September 2017. In paragraph 27, the last sentence states:-
“I am going to make the orders that the Independent Children’s Lawyer has handed up, plus the additional order referred to.”
The evidence of Ms Mannering is that the “orders” that she handed to the Court were in fact the document that is now exhibit 1 in this Application in a Case. Those documents had been prepared by Mr Mitchell on behalf of the father. At page 29 of the transcript, the Court addressed Ms Mannering between lines 6 and 8, where it is stated:-
“HIS HONOUR: Will you email the orders to the court?
MS MANNERING: Yes, I will, your Honour.”
Ms Mannering did in fact email the orders to the Court. In order to assist her with that task, Mr Mitchell forwarded a copy of the draft orders to Ms Mannering late on the afternoon of 6 September 2017. Mr Mitchell’s email to Ms Mannering is contained as annexure ‘RM2’ to Ms Mannering’s affidavit filed 11 October 2019. At 5:06 p.m on 6 September 2017, Mr Mitchell wrote:-
"Rebekah
Sorry to be slow in sending these to you. I’ve just arrived back from Brisbane.
Just delete the child support orders from the attached orders. The error was in order number 6 where it wrongly referred to order no 6. It has been corrected in the attached draft.
Regards
David Mitchell”
The orders which had been handed to the Court (exhibit 1) had contained paragraph 15 as follows:-
“Child support
15. Order number 7 made by this Court on 4 February 2016 is discharged or, alternatively, in the special circumstances of this case, and pursuant to section 117 of the Child Support (Assessment) Act, order number 7 made by this Court on 4 February 2016 is discharged."
Exhibit 1 are the orders that were handed to the Court. They are the orders that the Court said it would make. In these circumstances there is no justification nor any reason why Mr. Mitchell (the lawyer for the father at the time) should have suggested to the Independent Children’s Lawyer that the Independent Children’s Lawyer should delete the “child support orders from the attached orders”. Nor is there any reasons why the Independent Children’s Lawyer should have done so. Further, the Court failed to realise that the draft order forwarded to it by the Independent Children’s Lawyer was not the same order as that handed to the Court (Exhibit 1) – in particular and relevantly for present purposes – paragraph 15 from the draft had been deleted.
On 6 September 2017, the Court had decided, after a contested interim hearing, that the primary residence of Y should change and it should change on an urgent basis. Whilst there was no express argument in relation to the proposed paragraph 15 on 6 September 2017 it is (it seems to me) at the very least implicit that the Court, having decided that Y should live with his father and only spend supervised time at a contact centre with his mother – that the making of order 15 was appropriate. All parties had a chance to be heard on 6 September 2017 in relation to the orders sought by the father. When the Court stated that it intended making the orders handed up by the Independent Children’s Lawyer, no person in the courtroom objected. The orders sought by the Independent Children's Lawyer through the orders handed up by the Independent Children's Lawyer were reflective of the reasons for judgment. The discharge of a child support order was, obviously, appropriate – given that Y’s primary residence was changed on that date – and the Court already had evidence before it, that X’s primary residence had changed early in 2017.
The question for consideration now is whether or not the slip rule should operate and whether the paragraph that was numbered 15 in the draft orders handed to the Court on 6 September 2017 should now be made. Rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) is applicable. That rule states:-
“16.05 Setting aside or varying judgments or orders
(1) The Court or a Registrar may vary or set aside a judgment or order before it has been entered.
(2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered 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 judgment or order; or
(h) there is an error arising in the judgment or order from an accidental slip or omission.
(3) This rule does not affect the power of the Court or a Registrar to vary or terminate the operation of an order by a further order.”
The evidence reveals that:-
a)The Court came to the conclusion that the child Y should live primarily with the father;
b)Noting that X was already living with the father – this necessitated an order (which was made) that both children live with the father and that he have sole parental responsibility in respect of the children; and
c)That the mother’s time with Y was to be supervised at a contact centre (at least initially); and
d)For the purpose of the conclusions of the Court, the orders handed to the Court by the Independent Children’s Lawyer (even though they had been drafted by the father) were the appropriate orders to make in the circumstances. Implicitly, this included a discharge of an earlier order that had been made by the Court, requiring the father to pay child support to the mother.
The orders that Ms Mannering emailed to the Court (that email is annexure ‘RM4’ to Ms Mannering’s affidavit filed 11 October 2019) on 6 September 2017 at 5:22 p.m stated:-
“Dear associate
I refer to the above matter and attach word version of the orders handed up, with the error corrected and the further orders regarding myself having liberty to apply, the counselling for Y and regarding Y attending the Supporting Children After Separation program.
Kind regards
Rebekah Mannering”
When the email was sent by the Independent Children’s Lawyer (Ms Mannering) to the Court (as outlined above) it was not in fact the “word version of the orders handed up”. The Independent Children’s Lawyer did draw to the attention of the Court that some alterations had been made to the draft order that had been handed to the Court. That much is clear from her email dated 6 September 2017. But it was not drawn to the Court's attention that paragraph 15 from the original draft (the paragraph dealing with child support) had been deleted. The formal sealed order that issued from the Court did not contain the paragraph number 15 from the original draft in relation to child support.
As noted, the Court, having decided that the child should live primarily with the father and that the mother's time should be supervised at a contact centre, implicitly decided that the child support arrangement that had been agreed by the parties in February 2016 needed to be adjusted. There could be no reasonable justification for the continuation of an order requiring the father to pay $13,250 per year to the mother by way of child support for Y if the child is living with the father on a full-time basis and only spending time with the mother supervised at the contact centre.
The mother maintained in Court on 9 October 2019 that she had continued to pay private school fees for Y at the B School after 6 September 2017. At the commencement of the school year in 2018, Y had moved back to A School. The fact that the mother may have paid some school fees in that final term of 2017 (when Y was apparently still at B School) is neither here nor there. The Court’s intention on the day – as stated by the Court – was to make the orders that had been handed to the Court by the Independent Children’s Lawyer and those orders included the paragraph that was originally numbered 15 in the draft concerning child support and the discharge of paragraph 7 of the Orders made on 4 February 2016.
Prior to the hearing of the application on 6 September 2017, there can be no doubt that the mother was on notice that the father was seeking a variation to paragraph 7 of the Orders dated 4 February 2016. That much is clear from the initiating application filed by the father on 6 March 2017. On that date, the father sought the following final order – “removal of child support to the mother for the 17-year old (X) who no longer resides with the mother.”
Further, in an affidavit filed by the father on 12 June 2017, he stated in paragraph 14:-
“The Applicant requests that clause 7 be modified to no longer receive child support. The mother is no longer caring for X and the mother appears to have additional financial means (to send Y to a private school). The mother is also living in a different new defacto relationship. The Applicant is now covering 100% the cost of X’s costs, which the Respondent refused to cover. The applicant has notified the CSA of the change of living arrangements on the 2nd March.”
A similar paragraph to paragraph 14 above was included in an affidavit sworn by the father and filed on 10 July 2017.
Then, in an Amended Initiating Application filed 29 August 2017, the father sought the following by way of a final order:-
"Order no 7 made by this court on 4 February 2016 is discharged or, alternatively in the special circumstances of this case and pursuant to s117 of the Child Support (Assessment) Act, order no 7 made by this court on 4 February 2016 is discharged."
A similar order was requested as an interim order, as part of the same amended initiating application.
Both the interim orders and final orders contained in the amended initiating application filed 29 August 2017 sought orders that both Y and X live with the father.
Further, in an affidavit filed 30 August 2017 at paragraph 18, the father set out his evidence as to why paragraph 7 of the orders made 4 February 2016 needed to be discharged. In that paragraph, the father stated:-
“I supply and fund both children’s mobile phones, health insurance, provide bank accounts and pocket money weekly and I currently cover 100% of all Xs expenses including school and transport and also pay child support via the CSA for Y and these payments are fully up to date. I am seeking to discharge order no 7 made 4 February 2016 and if the interim orders I am seeking are made, the foundation for the child support orders on 4 February 2016 will no longer exist. Order no 2 made 16 April 2017 also changed the child support basis upon which the orders of 4 February 2016 were made because under order no 2 made 16 April 2017 X came to live with me.”
The question is not so much whether or not the evidence contained in paragraph 18 was precisely accurate or whether the mother accepted the evidence. The point is that the mother was, prior to 6 September 2017, well and truly on notice that the father was seeking an order from the Court for the discharge of paragraph 7 of the Orders made by the Court on 4 February 2016.
In addition, I note a document entitled “Submissions of the Independent Children’s Lawyer” that was handed to the Court on 6 September 2017 and filed by leave. A copy of those submissions will be an exhibit in this application in a case. On the front page of those submissions, the Independent Children’s Lawyer highlighted the fact that the father was seeking for paragraph 7 of the Orders made by the Court on 4 February 2016 to be discharged. On the front page of the Independent Children's Lawyer’s written submissions under the heading “orders sought by Father”, there is included:-
“2. Order no 7 made by this court on 4 February 2016 is discharged or, alternatively in the special circumstances of this case, and pursuant to s117 of the Child Support (Assessment) Act order no 7 made by this court on 4 February 2016 is discharged.”
The current application in the case before the Court is the first time that the father has formally sought an order under the slip rule in relation to the order that was made on 6 September 2017. The Court has been told that at a mention of the matter before His Honour Judge Jarrett in 2018, the discharge of the child support order had been brought to His Honour’s attention. His Honour, however, did not have the benefit of the evidence currently before the Court. Nor was there any application on foot for an order under the slip rule.
In relation to the operation of the slip rule, I note what was stated by the Full Court of the Federal Court of Australia in Flint v Richard Busuttil & Co Pty Ltd (2013) 216 FCR 375. In paragraph 19 and 20, the Full Court of the Federal Court stated, inter alia:-
“[19] It has long been accepted that courts have the power to correct clerical mistakes and accidental slips or omissions. In the case of the common law courts in England and their successors in Australia this is an inherent power, necessary for the administration of justice: Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264 at 270. In the case of a superior court of record created by statute there are no inherent powers (Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 at 17) but similar powers may be implied (DJL v Central Authority (2000) 201 CLR 226; 170 ALR 659; 26 Fam LR 1; [2000] HCA 17). Care must always be taken to require that federal courts created under the authority of s 71 of the Constitution take their character and authority from Ch III and the statute that is the source of their power: Re Macks; Ex Parte Saint (2000) 204 CLR 158; 176 ALR 545; 36 ACSR 216; [2000] HCA 62. All courts have developed rules providing for the correction of orders in certain circumstances, whether before or after orders have been entered.
[20] The Federal Circuit Court is neither a common law court nor a superior court of record. But its rules enable the court to vary or set aside a judgment or order in some specified circumstances. Rule 16.05 of the FMCR (now the Federal Circuit Court Rules 2001 (Cth)) includes the power to vary or set aside a judgment or order after it has been entered if it does not reflect the intention of the court. It does not, however, include a power to correct an accidental slip or omission. But s 43(2)(b) of the Federal Magistrates Act 1999 (Cth) (Federal Magistrates Act) (now the Federal Circuit Court of Australia Act 1999 (Cth)) relevantly provided that the Federal Court Rules apply, with necessary modifications, to the practice and procedure of the Federal Magistrates Court to the extent that the FMCR are insufficient. Rule 1.05(2) of the FMCR similarly provided that the Federal Magistrates Court can apply the Federal Court Rules to the extent that the FMCR are insufficient or inappropriate. Rule 39.05 of the Federal Court Rules relevantly provides that the court may “vary or set aside” a judgment or order after it has been entered for a number of reasons including if:
(g)there is a clerical mistake in a judgment or order; or
(h)there is an error arising in a judgment or order from an accidental slip or omission.”
Since the decision in Flint v Richard Busuttil & Co Pty Ltd (supra), the rules of the Federal Circuit Court of Australia have been amended. Rules 16.05 (2)(g) and 16.05 (2)(h) of the Federal Circuit Court Rules 2001 (Cth) have been since been included dealing with clerical mistakes and accidental slips and omissions.
The Full Court of the Federal Court stated further in Flint v Richard Busuttil & Co Pty Ltd (supra) at paragraph 26:-
“The scope of the slip rule
[26] The purpose of the slip rule is to avoid injustice to litigants (Gould v Vaggelas (1985) 157 CLR 215 at 274–5; 62 ALR 527 at 530–1) by ensuring that the court’s judgment or order reflects its intention at the time the order was made or the judgment was published, or reflects the intention that the court would have had but for the failure that caused the accidental slip or omission: Symes v Commonwealth (1987) 89 FLR 356 at 357. It may be exercised to prevent unintended consequences of the order and in this way give effect to the court’s intentions: Newmont Yandal Operations Pty Ltd v J Aron Corporation and the Goldman Sachs Group Inc (2007) 70 NSWLR 411; [2007] NSWCA195 at [116], [185] and [194] (Newmont Yandal). It is not confined to errors or omissions of the court; it extends to errors or omissions resulting from the inadvertence of a party’s legal representative: L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590 at 594–5; 43 ALR 473 at 475–6 (Shaddock).”
Relevantly in paragraph 26 of the decision of Flint v Richard Busuttil & Co Pty Ltd (supra), the Full Federal Court noted that:-
"The purpose of the slip rule is to avoid injustice to litigants…by ensuring that the Court’s…order reflects its intention at the time the order was made …”
It is clear from the transcript and from the reasons for judgment (in respect of the hearing on 6 September 2017) that it was the intention of the Court at the time the order was made (6 September 2017) to make an order in the terms of the draft order handed to the Court by the Independent Children’s Lawyer. In addition thereto, the Court made it clear that it would be making some other orders that the Court had specifically referred to during the hearing relating to counselling for Y and an order granting liberty to apply to the Independent Children’s Lawyer. Apart from that, it was the intention of the Court (as confirmed by the transcript and the reasons for judgement) to make orders in terms of the draft handed to the Court by the Independent Children’s Lawyer.
It seems to me, upon a consideration of all the evidence and the submissions (including the transcript from 6 September 2017 and the reasons for judgment of the same date), that there are three subsections within rule 16.05, which are applicable in the present case.
To start with, rule 16.05(2)(e) is applicable. The order which issued from the Court did not reflect the intention of the Court. The Court intended to make an order in terms of paragraph 15 of the draft orders handed to the Court by the Independent Children’s Lawyer on the day of the hearing.
Next, I note rule 16.05 (2)(g). There was indeed a clerical mistake in the order. That clerical mistake was, namely, the deletion of paragraph 15 from the draft order relating to the question of child support.
Finally, I note rule 16.05 (2)(h) – this gives the Court power to vary an order after it has been entered “if there is an error arising in the…order from an accidental slip or omission”. There was indeed an accidental slip or omission. The Court itself had intended to make an order in similar terms to paragraph 15 of the draft orders handed to the Court by the Independent Children's Lawyer. Through an accidental slip or omission on the part of the Court – that order was not made.
I have come to the conclusion that the slip rule is applicable in the present circumstances. Accordingly, the order of the Court dated 6 September 2017 will be varied. The following order will be added. It will be included as paragraph 15 and the subsequent orders will be renumbered:-
"15. That paragraph 7 of the Orders made by this Court on 4 February 2016 is discharged or, alternatively, in the special circumstances of this case, and pursuant to section 137 of the Child Support (Assessment) Act 1989, paragraph 7 of the Orders made by this Court on 4 February 2016 is discharged."
If I am wrong in relation to the operation of the slip rule I would, in any event (under section 137 of the Child Support (Assessment Act) 1989 (Cth)) discharge paragraph 7 of the order dated 4 February 2016. I rely on the reasons contained herein – in particular those paragraphs relating to the residence of the children and the dates that X and Y moved to live primarily with the father. It is just and equitable for the reasons stated. Further, for the reasons stated, the effective date of the discharge of paragraph 7 of the order dated 4 February 2016 is 6 September 2017.
I mentioned earlier that the matter came before His Honour Judge Jarrett on 6 August 2018. The Court has been told that the father raised with Judge Jarrett the possibility of discharging paragraph 7 from the Orders made on 6 February 2016. There was no application before His Honour for an order under the slip rule. His Honour did not have the benefit of the evidence which is now before now before the Court. If it is indeed the case that His Honour refused to make an order (at the request of the husband) to discharge paragraph 7 from the Orders made on 6 February 2019 – His Honour acted entirely appropriately in the circumstances. I also note that His Honour did make the following orders with the consent of the parties:-
“9. The father will cover 100% of all school, medical, extra-curricular sporting costs, transport costs (go-card) and mobile phone costs for Y.
10. The mother is excluded from making any financial decisions relating to Y where she expects the father to pay.”
The parties had in fact entered into a binding child support agreement dated 19 March 2012.
The original order contained in paragraph 7 of the orders made 6 February 2016 was properly made. The Court had jurisdiction under section 136 of the Child Support (Assessment) Act 1989 (Cth) to make the order. By that section, the Court has the power to set aside a child support agreement (in the case of a binding child support agreement) because of exceptional circumstances relating to a party to the agreement or a child in respect of whom the agreement is made that have arisen since the agreement was made and the applicant or the child will suffer hardship if the agreement is not set aside (note section 136 (2)(d).
I have no reason to think that section 136(1)(a) is not applicable. This in fact relates to the making of the order contained in paragraph 6 of the Orders of 4 February 2016. Paragraph 6 states that:-
“6. That the parties Binding Child Support Agreement dated 19 March 2012 be set aside.”
Pursuant to section 137 of the Child Support (Assessment) Act 1989 (Cth), the Court then has the power to make an order is consequential upon the setting aside of the agreement. In particular I note section 137 (2).
Paragraph 9 of the Order made by Judge Jarrett on 6 August 2018 can therefore also be seen to have been made pursuant to section 137.
The order made by the Court (or intended to be made by the Court) on 6 September 2017 discharging paragraph 7 of the Orders made on 4 February 2016 can also be seen to be an order made under section 137(3). It was indeed an order that was made (or was intended to be made) consequential upon the setting aside of the agreement (even though the setting aside of the agreement had been made in February 2016).
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 14 February 2020
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
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Appeal
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Procedural Fairness
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