Pinney & Pinney (No 5) - [2023] FedCFamC1F 553

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pinney & Pinney (No 5) [2023] FedCFamC1F 553

File number(s): SYC 792 of 2022

Judgment of: MCCLELLAND DCJ

Date of judgment: 30 June 2023

Catchwords: FAMILY LAW – PROPERTY – Application to vary orders pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the parties largely agree on the variations sought – Clarification of the intention of the Court – Orders varied pursuant to the slip rule.

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

Cases cited: Coghlan & Coghlan (2005) FLC 93-220; [2005] FamCA 429

Division: Division 1 First Instance

Number of paragraphs: 14

Date of hearing: 30 June 2023

Place: Sydney

Solicitor for the Applicant: Mr Gittoes-Caesar, Lander & Rogers

Solicitor for the Respondent: Self-represented litigant
ORDERS

SYC 792 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS PINNEY

Applicant

AND:
MR PINNEY

Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

30 JUNE 2023

THE COURT ORDERS THAT:
1.Pursuant to rr 10.13(1)(e) and (f) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the orders made on 19 May 2023 are varied in accordance with Annexure ‘A’ attached hereunder.

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 Pinney & Pinney has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
MCCLELLAND DCJ:

In this matter, by way of Initiating Application filed 15 June 2023, the wife has sought variation of orders that I made on 19 May 2023 pursuant to what is known as the ‘slip rule’ provisions, specifically r 10.13 of the Federal Circuit and Family Court of Australia Rules 2021 (Cth). Relevantly, that rule provides exceptions to what would otherwise be circumstances where the work of the Court is finalised and, in effect, the Court would be functus officio, that is, having no further role to play in respect to the proceedings.
Rule 10.13 enables the Court to vary or set aside an order in a number of circumstances including, relevantly for the purpose of this decision, where the order does not reflect the intention of the Court (r 10.13(1)(e)) or where a party in whose…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pinney & Pinney (No 5)

Details

AGLC: Pinney & Pinney (No 5) [2023] FedCFamC1F 553
Case: [2023] FedCFamC1F 553
Decision Date: 30 June 2023

CaseChat Overview and Summary

In Pinney & Pinney (No 5), the matter before the Federal Circuit and Family Court of Australia concerned an application to vary existing property settlement orders. The applicant, Ms Pinney, and the respondent, Mr Pinney, had previously agreed on most of the variations sought to their 2023 property orders. The court was tasked with clarifying the intention of the parties and applying the slip rule to make the necessary amendments.

The primary legal issue was whether the court could vary the existing orders in light of the parties' agreement on most aspects. The court had to determine the appropriate method for effectuating the variations and ensuring that the final orders accurately reflected the agreed terms. Additionally, the court needed to consider the procedural rules governing such applications and the implications of any potential errors in the form of the order.

The court found that the parties' agreement on the variations was clear and that the application was appropriate for the slip rule, which allows for minor corrections and clarifications without formal hearings. The court varied the orders as per the agreement and noted that the form of the order was subject to review and correction as necessary. The decision was made in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, ensuring that the orders precisely reflected the parties' intentions.

The final orders varied the existing property settlement orders in line with the agreement between Ms Pinney and Mr Pinney, with specific changes detailed in the annexed document. The court's decision was designed to ensure clarity and accuracy in the final orders, reflecting the intention of the parties as agreed upon.

Orders

Orders of the court

SYC 792 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS PINNEY

Applicant

AND:

MR PINNEY

Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

30 JUNE 2023

THE COURT ORDERS THAT:

1. Pursuant to rr 10.13(1)(e) and (f) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the orders made on 19 May 2023 are varied in accordance with Annexure ‘A’ attached hereunder.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	SYC 792 of 2022
Judgment of:	MCCLELLAND DCJ
Date of judgment:	30 June 2023
Catchwords:	FAMILY LAW – PROPERTY – Application to vary orders pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the parties largely agree on the variations sought – Clarification of the intention of the Court – Orders varied pursuant to the slip rule.
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13
Cases cited:	Coghlan & Coghlan (2005) FLC 93-220; [2005] FamCA 429
Division:	Division 1 First Instance
Number of paragraphs:	14
Date of hearing:	30 June 2023
Place:	Sydney
Solicitor for the Applicant:	Mr Gittoes-Caesar, Lander & Rogers
Solicitor for the Respondent:	Self-represented litigant

SYC 792 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS PINNEY Applicant
AND:	MR PINNEY Respondent

ORDER MADE BY:	MCCLELLAND DCJ
DATE OF ORDER:	30 JUNE 2023