Sidorov and Sidorov (No. 2)
[2008] FamCA 1102
•17 December 2008
FAMILY COURT OF AUSTRALIA
| SIDOROV & SIDOROV AND ANOR (NO. 2) | [2008] FamCA 1102 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Judgment Rectification and Deletion |
| Family Law Act 1975 (Cth) Family Law Rules 2004 |
| Bailey v Marinoff [1971] 125 CLR 529 at 539 Deputy Commissioner of Taxation v Healy (2003) 52 ATR 330 |
| APPLICANT: | Mr Sidorov |
| RESPONDENT: | Ms Sidorov |
| SECOND RESPONDENT: | Mr Farrow |
| FILE NUMBER: | SYC | 3321 | of | 2007 |
| DATE DELIVERED: | 17 December 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | O’Ryan J |
| HEARING DATE: | 30 January, 15 April, 6 May, 2 June, 24 October, 11, 12 & 28 November, 4 & 16 December 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Gruzman of Counsel |
| SOLICITOR FOR THE APPLICANT: | McBride Harle & Martin |
| COUNSEL FOR THE RESPONDENT: | Mr Macaulay, solicitor |
| SOLICITOR FOR THE RESPONDENT: | Pryor Tzannes & Wallis |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Christie of Counsel |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of NSW |
Orders
The judgement handed down on 16 December 2008 be rectified by the deletion of paragraph 216.
IT IS NOTED that publication of this judgment under the pseudonym Sicorov & Sidorov and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3321 of 2007
| MR SIDOROV |
Applicant
And
| MS SIDOROV |
Respondent
And
| MR FARROW |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 16 December 2008 I delivered a judgement and made final orders in property settlement, parenting and injunction proceedings.
The trial of the applications concluded on 4 December 2008 and I was concerned that judgement be delivered as soon as practicable as the proceedings had been before the Court since 2 May 2007.
One of the orders I made in the parenting proceedings provided as follows:
3. During the school term in each fourteen day period the children, [M] and [K] live with the Husband in week one from 3:00 pm on Friday until 9:00 am on the following Monday or 9:00 am on the following Tuesday if the Monday is a public holiday and in week two from 3:00 pm on Wednesday until 3:00 pm on the following Friday.
However, in paragraph 216 of the judgment I said the following:
216.I am of the opinion that the children should have the opportunity to spend more time with the Husband and in consequence also with their brother [L]. I propose to make an order that during the school term in each 14 day period in the first week the children live with the Husband from Wednesday after school until before school the following Friday morning, being for two nights, and in the second week from after school on Thursday until before school on the following Monday morning being four nights. Thus during the school term the children will spend six nights in each 14 day period with the Husband and eight nights in each 14 day period with the Wife.
In the result there is a clear inconsistency between Order 3 above and what I said in paragraph 216 of the judgment. This inconsistency was drawn to my attention on 16 December 2008, shortly after the judgement was handed down.
RELEVANT PRINCIPLES
Rule 17.01(1)(a) of the Family Law Rules 2004 provides that an order is made in a hearing or trial when it is pronounced in court by the judicial officer. Rule 17.01(2) provides that an order takes effect on the date when it is made, unless otherwise stated.
Rule 17.02 of the Family Law Rules 2004 deals with errors in orders and provides:
(1) If a party claims that there is an error in an order issued by the court, the party must give written notice of the error to the Registry Manager and all parties.
(2) A Registrar may rectify an error that appears obvious on reading the order.
Example A kind of amendment that a Registrar may make under subrule (2) is the correction of a typographical error.
(3) If the Registrar:
(a) is in doubt about whether there is an error in an order; or
(b) believes that an error in an order has, or may have, arisen from an accidental slip or omission;
the Registrar may take action under subrule (4).
(4)If subrule (1) or (3) applies, the party or Registrar may, after giving reasonable notice to each party, refer the order to the judicial officer who made it.
Note If the judicial officer who made the order is unavailable, it may be referred to another judicial officer (see rule 1.13).
(5) A judicial officer may, after giving each party a reasonable opportunity to be heard, rectify a suspected error referred to the judicial officer.
Note An amendment of an order may be made under this rule only if it is an error obvious when reading the order. Any other amendment must be remedied by appeal or consent.
In the dictionary to the Family Law Rules the term “order” is defined to include “(a) a decree, decision, declaration and judgment”. The word “decree” is not defined in the dictionary but is defined in s 4 of the Family Law Act 1975 (Cth) to mean “decree, judgment or order…”.
Rule 17.02 confers power on the Court to amend judgments and orders by reason of an accidental slip or omission and if an amendment is made it operates as from the date of the original order. This power is often referred to as the slip rule power and it is a well settled convention and exists without the support of an enabling rule: see Bailey v Marinoff [1971] 125 CLR 529 at 539 per Gibbs J; Gikas v Papanayiotou (1977) 2 NSWLR 944 at 950-951 per Needham J and Raybos v Tectran (1987-88) 77 ALR 190 at 191 per Toohey J. The slip rule reflects the inherent jurisdiction of a court at any time to correct an error in a judgment, decree or order arising from a slip or accidental omission.
For present purposes the inherent jurisdiction in the court extends to withdrawing or amending a judgment before it has been entered. After a judgment has been entered the general rule is that there is no jurisdiction to review, vary or set aside. However in its inherent jurisdiction the court may permit rectification of a judgment that has been entered where it does not correctly reflect the Judge’s intention as at the time it was pronounced.
The jurisdiction may be exercised either on the application of a party to the proceedings or on the court’s own initiative. Whether or not the slip rule may be successfully invoked is a matter for the discretion of the court. However, it must be exercised with caution and only to rectify what may properly be described as a “slip or omission”; not a change to or addition of a substantive order. The omission or mistake will not be treated as “accidental” if the proposed amendment requires the exercise of an independent discretion on a matter on which a real difference might exist.
In De L v Director General of the NSW Department of Community Services [No 2] (1997) 190 CLR 207, the High Court (per Toohey, Gaudron, McHugh, Gummow and Kirby JJ) stated the following at 215:
"The power of this Court to reopen its judgments or orders is not in doubt. The Court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded 'on a misapprehension as to the facts or the law' (Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 at 302) where 'there is some matter calling for review' (Smith v NSW Bar Association (1992) 176 CLR 256 at 265) or where 'the interests of justice so require' (Autodesk Inc v Dyason[No 2] (supra) at 322). It has been said repeatedly that a heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required 'without fault on his part' (Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684; cf State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38, 45-46; Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 at 168) ie without the attribution of neglect or default to the party seeking reopening (Autodesk Inc v Dyason [No 2] (supra) at 303). By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law. On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice. In the case of a final court of appeal, such as this Court, that injustice may be irremediable, unless the Court itself, acting promptly, is persuaded to reopen its orders so as to afford relief in the exceptional circumstances of the case (Autodesk Inc v Dyason [No 2] (supra) at 302; Wentworth v Rogers [No 9] (1987) 8 NSWLR 388 at 394-395; Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 at 28-29)."
The New South Wales Court of Appeal in Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 considered in depth the operation of the slip rule. McHugh JA stated the general ambit of the rule at 452:
“If the proposed variation of an order relates to a matter which was in issue in the proceedings or to something which was incidental to such a matter, the court, in my opinion, has power to amend its order if the need for the variation is the result of an accidental omission or mistake”
In determining whether a mistake or omission could be considered as accidental, McHugh JA at 453 stated with approval the general test formulated by Lord Herschell in Hatton v Harris [1892] AC 547 at 558:
“In general, the test of whether a mistake or omission is accidental is... if the matter had been drawn to the court’s attention would the correction at once have been made?”.
The analysis of the slip rule by McHugh JA in Storey & Keers v Johnstone (supra) has received approval in a number of subsequent cases. In Deputy Commissioner of Taxation v Healy (2003) 52 ATR 330, Hasluck J stated at [26]:
“The decided cases suggest that the crucial considerations are whether the matter now sought to be corrected would have been attended to at once if the matter had been raised for consideration before judgment was entered and whether the matter to be resolved would require the exercise of an independent discretion or could be regarded as a matter upon which a real difference of opinion might exist. Further, it seems that the slip rule allows for the correction of any infelicity or ambiguity in the expression of the judgment which would result in the order of the Court having an untoward effect”
The matter was considered by the Full Federal Court in Elyard Corp Pty Ltd v DDB Needham Sydney PtyLtd (1995) 133 ALR 206 (per Black CJ, Lockhart and Lindgren JJ). Lockhart J said from 209:
“Traditionally, a court's power to correct errors in orders arising from accidental slips or omissions is conferred by an express rule of court (eg O 35, r 7 of the Federal Court Rules); but it exists whether provision is made by express rule or not.
The slip rule is a qualification of the rule that a court may not vary a duly passed and entered order which brings a proceeding to an end because it is obviously desirable that the litigation should be brought to an end.
The rule is very wide in its scope, but is not available as a matter of course: Shaddock at CLR 597.
Courts have an inherent or implied jurisdiction to amend judgments which do not correctly state what was actually decided and intended. Indeed, after a decree or order has been passed and entered a court will not, unless by consent, permit it to be altered without a rehearing, except in cases of mistakes or errors arising from accidental slips or omissions ….
The slip rule applies where the proposed amendment is one upon which no real difference of opinion can exist. It does not apply where the amendment is a matter of controversy, nor does it extend to mistakes that are the consequence of a deliberate decision: see Arnett v Holloway [1960] VR 22; Re Army and Navy Hotel (1886) 31 Ch D 644 and Ivanhoe Gold Corp Ltd v Symonds (1906) 4 CLR 642.”.
Lockhart J continued at 212:
“An exercise of the power of the court under the slip rule is ultimately to avoid injustice. This obvious purpose of the slip rule underlies a number of decisions of judges of this court and of other courts…”
CONCLUSION
In this case the hearing of the applications for parenting orders proceeded in accordance with Division 12A of Part VII of the Family Law Act over a number of days. A significant controversy was whether during the school term in each 14 day period the children that were the subject of the applications spent an equal time with each parent being in total seven days in each 14 day period or five nights with the Husband and nine nights with the Wife in accordance with the regime that had been established by orders made on 18 June 2007 or four nights with the Husband and ten nights with the Wife as sought by the Wife. The Family Consultant recommended a continuation of the current regime, namely that the children spend five nights with the Husband and nine nights with the Wife and this was ultimately what was sought by the Independent Children’s Lawyer.
The issues were not without difficulty and ultimately I was persuaded for reasons submitted on behalf of the Independent Children’s Lawyer to accept the recommendations of the Family Consultant.
Unfortunately there was retained in the judgment as delivered a portion of what had been included in an earlier draft. However, the orders I made reflected what was recommended by the Family Consultant and sought by the Independent Children’s Lawyer. The orders reflected what I ultimately resolved was in the best interests of the children and thus reflected my intention. In summary, in this case there was no error in the order; there was an error in the judgment. The paragraph that remained in the judgment did not reflect my intention. In order to avoid injustice I therefore propose to amend the judgment by the deletion of paragraph 216.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan
Associate:
Date: 17 December 2008
201