Piat & Mertens (No 2)
[2025] FedCFamC1F 34
•28 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Piat & Mertens (No 2) [2025] FedCFamC1F 34
File number(s): CAC 1314 of 2023 Judgment of: CURRAN J Date of judgment: 28 January 2025 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Application of slip rule to final orders regarding superannuation – Where the intention of the court was to bring about an equalisation of the parties’ superannuation entitlements – Application granted Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13 Cases cited: Bailey & Bailey (1990) FLC 92-145
Burrell v The Queen (2008) 238 CLR 218
Gludau & Gludau (No 2) (2013) FLC 93-562
Gould v Vaggelas (1985) 157 CLR 215
Owston Nominees No. 2 Pty Ltd and Anor v Branir Pty Ltd and Ors (2003) 129 FCR 558
Division: Division 1 First Instance Number of paragraphs: 20 Date of last submission/s: 23 December 2024 Date of hearing: Determined in chambers on the papers Place: Sydney The Applicant: Litigant in person The Respondent: Litigant in person (did not participate) ORDERS
CAC 1314 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PIAT
Applicant
AND: MR MERTENS
Respondent
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
28 JANUARY 2025
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by the wife on 23 December 2024 to vary the orders made on 20 November 2024 pursuant to the slip rule is granted.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Piat & Mertens has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTCURRAN J:
Following a final hearing, final property orders were made and a final judgment was delivered on 20 November 2024.
Those orders included superannuation splitting orders, as had been sought by the wife who was represented at the trial by both solicitor and counsel. The orders sought by the wife had been served on the Trustee of Super Fund 1. They were said to bring about an equalisation of the parties’ respective superannuation entitlements which were both with Super Fund 1. The orders did not achieve that outcome.
On 20 December 2024, the wife, now unrepresented, with the consent of the husband, sent an email to chambers seeking to vary the orders made pursuant to the slip rule.
The email stated:
Dear Associate
This is a joint email sent by consent.
I refer to final orders for CAC1314/2023 issued on 20 November 2024. I am the Applicant in this matter.
There is an ambiguity in the final orders with regard to the superannuation split. Clause 10 specifies an equalisation of super, whilst clause 11(c) indicates that I am to receive 50% of the Respondent's super but there isn't a reciprocal clause to indicate that the Respondent is to receive 50% of my super.
As I have received 50% of the Respondent's super ($599,472.82) on 18 December 2024, we propose an amendment to the final order using the slip rule, to the effect that I transfer the base amount of $212,861.13 (calculated as 50% of my super as of 17 December 2024), to the Respondent's super.
The proposed amendments are attached and I have applied to the Trustee of [Super Fund 1] for their approval.
I also attach a notice of address for service to advise that I no longer have legal representation and am now acting in person. I was not able to lodge this notice via the portal as the status of this file is closed.
Kind regards [Ms Piat]
No Application in a Proceeding, nor evidence of service on the Trustee was filed at the time. Neither party had signed the proposed varied orders.
Chambers directed the parties to file an Application in a Proceeding together with evidence of consent and service on the Trustee.
On 23 December 2024, an application was filed by the wife with an affidavit in support confirming both service on the Trustee and the consent of the husband to the order, which, in effect, brought about the equalisation of the parties’ superannuation benefits by a reciprocal order transferring to the husband half of the superannuation entitlement of the wife, as was intended to occur in the orders initially set out by the wife.
It is clear that the orders made did not reflect the intention of equalising the parties’ superannuation. It is, accordingly, appropriate and in the interests of justice to vary the orders made pursuant to the slip rule to ensure it reflects the judicial intention at the time the order was made in accordance with the legal principles set out below. It is clear that the wife sought, and the court was satisfied that, orders to equalise the parties’ superannuation were just and equitable. The point was argued, considered and decided at the hearing.
LEGAL PRINCIPLES – SLIP RULE
As a general rule, once a judge has made an order, that judge is functus officio and cannot add to, amend or detract from it. In Burrell v The Queen (2008) 238 CLR 218, Gummow A-CJ; Hayne, Heydon, Crennan and Kiefel JJ said:
The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order [L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1982) 151 CLR 590 at 594-595] 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.
(emphasis added)
The Court has implied jurisdiction to correct orders which do not reflect the Court's intention at the time the order was made or, in some circumstances, what the Court would have decided apart from an accidental slip or omission.
This jurisdiction is encapsulated in r 10.13(1)(e) and (h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) which are as follows:
(1) The court may at any time vary or set aside an order , if:
…
(e) it does not reflect the intention of the court; or
…
(h) there is an error arising in the order from an accidental slip or omission.
The overall purpose of the slip rule is to avoid injustice to litigants (Gould v Vaggelas (1985) 157 CLR 215 at 274-276).
The most common application of the slip rule involves an amendment to an order where it is plain that it does not reflect the judicial intention at the time the order was made.
When assessing that judicial intention, it is necessary to look at the surrounding circumstances including the reasons for judgment, the applications made and, if necessary, the evidence and how the case was conducted (Owston Nominees No. 2 Pty Ltd and Anor v Branir Pty Ltd and Ors (2003) 129 FCR 558 at [27]).
The Full Court of the Family Court canvassed the issue in the matter of Gludau & Gludau (No 2) (2013) FLC 93-562. Murphy J (with the agreement of May and Hogan JJ) stated at [21]:
21.The current rule might, then, be argued to be reflective of the concern that the Rules must embody the fact that this court is a creature of statute within a constitutional framework and its powers on appeal derive from statute. In particular, while the 'slip rule' might be used to correct obvious errors (perhaps what Kirby J referred to in DJL as 'accidental mistakes or omissions of no substantive significance' or an 'accidental slip or omission' as the plurality in Burrell referred to), care must be taken when the nature of the asserted error is substantive, as that may in fact involve the exercise of a power to reopen proceedings that are contemplated by a perfected order and that is a power which the court does not have (see DJL v The Central Authority (2000) FLC 93-015).
In Bailey & Bailey (1990) FLC 92-145, Mullane J states, in relation to varying orders, at 78,009: “But that power does not extend to supplementing the orders made by a further order on a point which was not argued, considered or decided at the hearing…”.
CONCLUSION
The intention of the court was clearly to bring about an equalisation of the parties’ superannuation entitlements, as set out in [176] – [177] of the reasons for judgement (see Piat & Mertens [2024] FedCFamC1F 668):
176On balance and doing the best I can with the evidence before me, having considered the contributions holistically and the future needs as addressed throughout these reasons, I am satisfied that an order equalising the superannuation balances as sought by the wife is just and equitable. In reaching this conclusion I have considered the values of the funds, the contributions made to the funds, the parties future needs and the effect of such an order equalising the parties’ superannuation balances.
177Accordingly, I make orders in accordance with the wife’s application for an equalisation of the parties’ superannuation. The trustee has been afforded procedural fairness.
This was the intended outcome reflected in the oral submissions made by counsel on behalf of the wife: “What the wife is asking the court to do today is equalise the parties' superannuation and a payment be made to the wife that is, in effect, of 55 per cent of the asset pool.”
No affidavit was filed by the husband, however, the wife annexed to her affidavit an email from the husband confirming his consent. The amended orders provide financial benefit to the husband in that they order a transfer of superannuation from the wife’s superannuation accumulation fund to the husband’s fund.
For these reasons I make the orders sought varying the orders made pursuant to the slip rule.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Curran. Associate:
Dated: 28 January 2025
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