Parton & Teesdale (No 2)
[2023] FedCFamC2F 344
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Parton & Teesdale (No 2) [2023] FedCFamC2F 344
File number(s): PAC 1539 of 2021 Judgment of: JUDGE WILLIS AM Date of judgment: 29 March 2023 Catchwords: FAMILY LAW – PROCEDURAL – where judgment delivered disposing of property and spousal maintenance dispute – where judgment specifically details judge’s intention to make an order for spousal maintenance – where the order for spousal maintenance was erroneously omitted from the orders proclaimed at the time of judgment delivery – where the mistake or omission was accidental – where the slip rule applies – where sealed orders proclaimed on date of judgment are now amended Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13 Cases cited: DJL v Central Authority (2000) 170 ALR 659
Fritz v Hobson (1880) 14 ChD 542
Hatton v Harris [1892] AC 547
Milson v Carter [1893] AC 638
Division: Division 2 Family Law Date of hearing: 29 March 2023 Place: Brisbane Number of paragraphs: 18 Solicitor for the Applicant: Ms Hatton of Meredith Hatton & Associates Solicitor for the Respondent: Self-represented ORDERS
PAC 1539 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PARTON
Applicant
AND: MS TEESDALE
Respondent
ORDER MADE BY:
JUDGE WILLIS AM
DATE OF ORDER:
29 MARCH 2023
THE COURT ORDERS:
1.That the judgment issued on 23 February 2023 be amended pursuant to Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the slip rule”) to include an additional order that “the husband pay to the wife the sum of $930 a week by way of spousal maintenance for a period of 18 months, commencing 23 February 2023” (which was the Order omitted from the Orders proclaimed on that date).
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE WILLIS AM:
BACKGROUND
On 23 February 2023 the Court published a judgment in relation to property and spousal maintenance following on from a three-day hearing. At the time of pronouncing the Orders the Court read into the record Orders 1 to 14 relating to property and published the 27 page judgment.
The Court was subsequently contacted by the wife, who is now self–represented, on 21 March 2023 to say that she wished to enquire about the fact that the orders relating to spousal maintenance had possibly been omitted from the final orders proclaimed on 23 February 2023. Ms Teesdale advised that she had been told that if there was a clerical mistake or an accidental slip or omission it is possible for that to be remedied by emailing the registry where the order was made. She requested that the orders be amended to include the spousal maintenance order referred to at paragraph 153 of the judgment pursuant to rule 10.13, “which could happen hopefully without the need to resort to expensive and time-consuming appeal proceedings.”
On the same day a letter was received from Meredith Hatton of Meredith Hatton and Associates acting for the husband which stated relevantly in part “we have not been provided with an opportunity to make representations on behalf of the applicant who would welcome an opportunity to do so if the court is to be persuaded to make an order for spousal maintenance.”
An email was sent back from my chambers regarding the correspondence received from the parties in relation to the absence of spousal maintenance orders, despite the findings of the Court (paragraphs 129 through to 153 of the judgement) dealing with the spousal maintenance issue.
The email from the Court to the parties continued that “this can be remedied by issuing the orders for spousal maintenance that ought to have been made on 23 February 2023 date but which have not yet issued. If there any opposition to the proposed course, please advise chambers as a matter of priority.”
Subsequent correspondence was received from Ms Hatton stating that that “we are instructed that our client wishes to be given credit for 35 weeks of spousal maintenance payments made voluntarily by him to Ms Teesdale between the conclusion of the trial and the judgement. If appropriate we are happy to put evidence on in the usual manner.”
APPLICATION OF THE SLIP RULE
On 23 February 2023, as seen in the published judgment covering property and spousal maintenance, I made findings after the final determination of the property division, and then proceeded to consider the wife’s application for spousal maintenance.
The judgment sets out the findings that the wife had a need for, and the husband had capacity to pay, spousal maintenance. I made findings that the period of five years is well beyond what was reasonable given the facts of the matter and that the wife has a degree and experience in social work. I set out discussion of many other relevant spousal maintenance considerations prior to coming to the conclusion at paragraph 153 stating that “the husband pay the wife spousal maintenance of $930 per week for a period 18 months from the date of this order.”
The actual order for the spousal maintenance was omitted from the raft of orders that were made on 23 February 2023. Only the property orders were read into the record and included on the sealed Order. It is clear that there was an omission in not including this Order from reading the judgment and the findings therein, and also from the headnotes that state spousal maintenance was ordered.
The suggestion of the solicitor for the husband that they “would welcome an opportunity be heard if the court is persuaded to make an order for spousal maintenance,” ignores the fact that all evidence and submissions have been made by Counsel representing the respective parties, and ignores all of the discussion and findings in the judgment regarding the wife’s application for spousal maintenance. It is clear from the judgment that the obvious intention of the Court was to make an order that the husband pay the wife $930 per week for a period of 18 months from the date of the judgment, by way of spousal maintenance. This was stated in the judgment.
I therefore do not intend to take further evidence or submissions about whether or not the Court is going to make findings on spousal maintenance or make Orders about spousal maintenance. The evidence has concluded, findings have been made, and the judgment delivered.
This is a situation of omission of an order which has come to light after the property Orders have been made on 23 February 2023.
The omission is covered by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) at rule 10.13 (known as “the slip rule”).
The slip rule is part of the Court’s inherent jurisdiction which operates without support of the enabling rule. It provides that where it is claimed that an order contains an error which arises from an “accidental slip or omission” the Court may rectify the decree and make such consequential orders as may be necessary. The slip or admission may arise from the judge or from a party’s representative failing to deal with or raise an obvious issue.
In the High Court decision of DJL v Central Authority (2000) 170 ALR 659 [1] at 685 Justice Kirby considered this part of the Family Court Rules (as they were then). His Honour stated:
Some accidental slips or omissions are capable of correction at common law[2]. This facility is now commonly replaced by provisions in rules of court. In the family Court of Australia that is where the “slip rule” may be found. Ordinarily it is limited to correction of the formal record for accidental mistakes or omissions of no substantive consequence. Similarly when it can be shown that a court order does not correctly reflect the court’s decisions as contained in its reasons rectification of the order is viewed as nothing more than a mechanical task. Where, without alteration it is possible to repair an oversight and prevent injustice by making a supplementary order, the existence of a previously perfected order will be no barrier.
[1] Considered in Milham and Stanford a Full Court decision cited as [2001] FamCA 294 (Kay, Coleman & Penny JJ).
[2] Ainsworth v Wilding [1896] 1 Ch 673 at 677 (Romer J); R v Cripps [1084] QB 686 at 695.
The slip rule may be invoked irrespective of whether the order has been drawn up, passed or entered (Milson v Carter [1893] AC 638 at 640). It is well-settled that the application of the slip rule is not confined to giving effect to the intention of the judgment at the time when the Court’s order was made or judgment given. It extends to the intention which the Court would have had, but for the failure that caused the accidental slip or omission. The rule also extends to permit the correction of an order or decree where the omission results from the inadvertence of a party’s legal representative (Fritz v Hobson (1880) 14 ChD 542 at 561).
In general, the test of whether a mistake or omission is accidental is that applied by Lord Herschell in Hatton v Harris [1892] AC 547 (at 558): if the matter had been drawn to the court’s attention would the correction at once have been made?
I intend to remedy the omitted order pursuant to the slip rule which is to take effect from 23 February 2023, the date that the omission occurred.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Willis AM. Associate:
Dated: 29 March 2023
0
2
0