Rowe and Helbig

[2016] FamCA 461

FAMILY COURT OF AUSTRALIA

ROWE & HELBIG [2016] FamCA 461

FAMILY LAW – PRACTICE AND PROCEDURE – Slip rule – Where the father seeks to amend final orders – Where the Court amends one order but dismisses the application to amend the other order

Family Law Rules 2004 (Cth) r 17.02

Gludau & Gludau (No. 2) (2013) FLC 93-562
Medlow v Medlow (No. 2) [2016] FamCAFC 63

APPLICANT: Mr Rowe

RESPONDENT: Ms Helbig

FILE NUMBER: PAC 5421 of 2010

DATE DELIVERED: 10 June 2016

PLACE DELIVERED: Sydney

PLACE HEARD: IN CHAMBERS

JUDGMENT OF: Rees J

REPRESENTATION

SOLICITOR FOR THE APPLICANT: O’Sullivan Legal

SOLICITOR FOR THE RESPONDENT: In person

Orders

IT IS ORDERED

1. That the application of the father, filed 31 May 2016 to amend Order 15 made 9 March 2015 is dismissed.

2. Pursuant to the slip rule, Order 16 made 9 March 2016 is amended and the following order is made:

   16.That, subject to Order 17, from the second weekend following the period in Order 14, the children shall spend unsupervised time with the mother, each alternate weekend, from Friday afternoon when school finishes until Monday morning when school begins, with the mother or her nominee to collect the children from school and return them to school.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 5421 of 2010

Mr Rowe

Applicant

And

Ms Helbig

Respondent

REASONS FOR JUDGMENT

1. Proceedings between Mr Rowe (“the father”) and Ms Helbig (“the mother”) in relation to parenting were heard over a number of days and judgment was delivered on 9 March 2015.

2. The orders, relevantly, provided for a graduated program of time for the children to spend with the mother.  A dispute has arisen about the proper form of those orders.

3. On 31 May 2016, the father filed an application to amend orders 15 and 16 made on 9 March 2015, pursuant to the slip rule. That application was supported by an affidavit sworn 31 May 2016. That application is opposed by the mother.

4. Orders were made for the mother to file any affidavit material upon which she relied and for both parties to make written submissions in relation to the application. The mother relies upon a response filed 8 June 2016, an affidavit sworn by her on 8 June 2016 and written submissions dated 8 June 2016. By her response, the mother asks that the application be dismissed and that the father pay her costs.

THE LAW

1. Rule 17.02, which  came into effect on 1 January 2016, provides:

   (1)       The court may at any time vary or set aside an order, 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 order; or

   (h) there is an error arising in the order from an accidental slip or omission.

   (2) Subrule (1) does not affect the power of the court to vary or terminate the operation of an order by a further order.

2. In Gludau & Gludau (No. 2) (2013) FLC 93-562 the Full Court, speaking of the earlier version of the rule, said at 87,537:

   20.    The rule in its current form, particularly when regard is given to its accompanying note, is arguably significantly more restrictive of the “slip rule” powers exercisable by a judge of this court than those to which the High Court referred in DJL. Indeed, as the High Court said more recently in Burrell v The Queen (2008) 238 CLR 218, at 224 – 225 per Gummow A-CJ; Hayne, Heydon, Crennan and Kiefel JJ:

   20.Identifying the formal recording of the order of a superior court of record as the point at which that court’s power to reconsider the matter is at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court.

   21.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.

   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 completed by a perfected order and that is a power which this court does not have (see, DJL).

   (Emphasis as per the original)

3. As the Full Court said in Medlow & Medlow (No 2) [2016] FamCAFC 63:

   Notwithstanding the new form of the rule those remarks (excluding the first sentence of Gludau at [20], which does not apply to the current iteration of r 17.02) remain pertinent.

CONSIDERATION

1. The father seeks the following orders:

   That order 15 made on March 9, 2015 in proceedings PAC5421/2010 to be amended to say: “That subject to Order 17, from the Saturday immediately following the expiration of the period in Order 14, for a period of three months, the children shall spend unsupervised time with the mother from 9:00 am on Saturday morning until 6:00 pm on Sunday evening, commencing on that weekend and thereafter each alternate weekend. Unless the parents agree on an alternate venue, the father or his nominee shall deliver the children to the mother at McDonalds [Town S] at the commencement of the time, and the mother or her nominee shall return the children to the father or his nominee at the same place at the conclusion of the time. The maternal grandparents shall not be present for the changeover.

   That Order 16 made on March 9, 2015 in proceedings PAC5421/2010 to be amended to say: “That subject to Order 17, from the second weekend following the period in Order 15 and every alternate weekend thereafter, the children shall spend unsupervised time with the mother from Friday afternoon when school finishes until Monday morning when school begins, with the mother or her nominee to collect the children from the school and return them to the school.”

2. The relevant orders are set out below. Order 14 is also included for completeness as the commencing date for Order 15 is dependent on Order 14.

   14.That commencing on the Saturday immediately following the expiration of one year from the date of these Orders, and for a period of three months thereafter, the children shall spend unsupervised time with the mother each week from 9. 00 am on Saturday morning until 6.00 pm on Saturday evening. Unless the parents agree on an alternate venue, the father or his nominee shall deliver the children to the mother or her nominee outside the premises of [PP] at the commencement of the time, and the mother or her nominee shall return the children to the father or his nominee at the same place at the conclusion of the time. The maternal grandparents shall not be present for the changeover.

   15.That, subject to Order 17, from the Saturday immediately following the expiration of the period in Order 14, the children shall spend unsupervised time with the mother from 9.00 am on Saturday morning until 6.00 pm on Sunday evening, commencing on that weekend and thereafter each alternate weekend. Unless the parents agree on an alternate venue, the father or his nominee shall deliver the children to the mother or her nominee outside the premises of [PP] at the commencement of the time, and the mother or her nominee shall return the children to the father or his nominee at the same place at the conclusion of the time. The maternal grandparents shall not be present for the changeover.

   16.That, subject to Order 17, from the second weekend following the period in Order 14, the children shall spend unsupervised time with the mother from Friday afternoon when school finishes until Monday morning when school begins, with the mother or her nominee to collect the children from school and return them to school.

ORDER 15

1. The father contends that Order 15 requires amendment because it does not specify the duration of its operation.

2. The father relies upon Paragraph 416 of the reasons for judgment which is set out below:

   416.To that end, the children’s time with their mother will be supervised for a period of one year from the date of these orders and thereafter will be increased until they are spending alternate weekends and half school holidays with their mother.

3. The father contends that Order 15 is intended to operate so that, the children spend alternate weekends from 9 am on Saturday until 6 pm on Sunday for a period of three months.

4. Nothing in the judgment supports the father’s contention that a period of three months was intended to be imposed before the children’s time with the mother was extended to start on Friday after school and end on Monday morning.

5. The clear terms of Order 16 provide for the children to have two periods of weekend time with the mother before the period is extended.

6. The application in relation to Order 15 will be dismissed.

ORDER 16

1. The mother interprets Order 16 to have the effect that the children will spend every weekend with her.

2. The father contends that the intent of the judgment was that the children should spend every alternate weekend with the mother once the period in Order 16 commences.

3. The father again relies upon Paragraph 416 of the reasons for judgment, set out below:

   416.To that end, the children’s time with their mother will be supervised for a period of one year from the date of these orders and thereafter will be increased until they are spending alternate weekends and half school holidays with their mother.

4. The mother contends that the Court has no power to amend the order. She submits:

   The slip rule is not applicable to this application. The slip rule only extends to fixing orders where errors or omissions “appear obvious on reading the order”. For example,

   (a)Errors may be typographical or mathematical. That is not the case here. The father seeks to insert new timings for operation of certain orders. He is not seeking a correction but a variation of the orders. He should have appealed. He did not.

5. The mother further submits:

   [The father] now says the judgment is inconsistent with the orders. I say the judgment and orders are inconsistent with the evidence and law but not for the reasons the father now agitates. I appealed. He could have appealed but did not.

6. Order 16 is inconsistent with Paragraph 416 of the reasons for judgment. The mother submits that any variation of Order 16 requires the exercise of discretion and is not a matter for the application of the slip rule.

7. Discretion has already been exercised in relation to the issue of the frequency of the children’s weekends with the mother. The reasons are set out in the judgment already delivered.

8. The function of the orders is to reflect the reasons for judgment. Where they do not do so, because of an error arising from an accidental omission of words from the order, and as a result the order does not reflect the intention of the Court, the slip rule can be utilized to correct the order.

9. Order 16 will be corrected to read:

   That, subject to Order 17, from the second weekend following the period in Order 14, the children shall spend unsupervised time with the mother, each alternate weekend, from Friday afternoon when school finishes until Monday morning when school begins, with the mother or her nominee to collect the children from school and return them to school.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 10 June 2016.

Associate: 

Date:  10 June 2016