Parmentier & Yates (No 2)

[2022] FedCFamC1F 199

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Parmentier & Yates (No 2) [2022] FedCFamC1F 199

File number(s):

SYC 5932 of 2017

Judgment of:

ALTOBELLI J

Date of judgment:

22 February 2022

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Where an order was made for costs in the substantive proceedings – Whether the order for costs in the substantive proceedings is to be discharged pursuant to the slip rule as codified in r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Finding that the reasons for judgment make it clear that the costs order made was not sought in an application before the Court – Finding that the order does not reflect the intention of the Court and can be discharged pursuant to the slip rule.

Legislation:

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13

Division:

Division 1 First Instance

Number of paragraphs:

3

Date of last submission/s:

22 February 2022

Date of hearing:

22 February 2022

Place:

Sydney

Solicitor for the Applicant:

Reid Family Lawyers

Solicitor for the Respondent:

Barkus Doolan

ORDERS

SYC 5932 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR PARMENTIER

Applicant

AND:

MS YATES

Respondent

ORDER MADE BY:	ALTOBELLI J
DATE OF ORDER:	22 FEBRUARY 2022

THE COURT ORDERS THAT:

1.Pursuant to Rule 10.13(1)(e) and (h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Order 15 dated 12 January 2022 is discharged.

2.By no later than within 21 days, the husband file a Response to the Application in a Proceeding filed 8 February 2022, together with any evidence on which he seeks to rely.

3.By no later than within 35 days, the wife file and serve written submissions in relation to costs not exceeding 500 words on which she seeks to rely.

4.By no later than within 49 days, the husband file and serve written submissions in relation to costs not exceeding 500 words on which he seeks to rely.

5.By no later than within 56 days, if appropriate, the wife file and serve written submissions in reply not exceeding 200 words on which she seeks to rely.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Parmentier & Yates has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
(Revised from transcript)

ALTOBELLI J:

1. On 12 January 2022, the Court made final property adjustment orders and delivered reasons for judgment in this matter. Notably, Order 15 of those orders states, “The parties shall each pay their own costs of and incidental to these proceedings.” The existence of this order was drawn to my attention as a result of correspondence between the parties and chambers in relation to costs. The wife seeks a costs order contending that what was once colloquially known as the “slip rule”, applied to Order 15. The husband did not agree and rather sought to have the issue heard.

2. The judgment delivered on 12 January 2022 does not deal with the issue of costs in the sense of any application of s 117 of the Family Law Act 1975 (Cth), which provides for the making of a costs order. An order that each party pay their own costs was not an order sought by either party in the applications that they put before the Court. This is an example of the accidental slip or omission referred to at r 10.13(1)(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which empowers the Court at any time to vary or set aside an order if there has been an error in the order arising from an accidental slip or omission. The Court believes there has indeed been an error in Order 15 arising from an accidental slip.

3. It is unfortunate if this has resulted in inconvenience to the parties. With the greatest of respect, with two very senior family lawyers representing each of the parties, I would have thought that the application of the slip rule to Order 15 was self-evident.

I certify that the preceding three (3) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli delivered on 22 February 2022.

Associate:

Dated:       22 February 2022