Trevi and Trevi (No. 2) - [2019] FamCAFC 57

FAMILY COURT OF AUSTRALIA

TREVI & TREVI (NO. 2)

[2019] FamCAFC 57

FAMILY LAW – APPEAL – RE-EXERCISE – AMENDMENT PURSUANT TO SLIP RULE – Where the parties jointly sought the correction of an order providing for a cash amount to be paid by the husband to the wife arising from an accidental slip or omission pursuant to r 17.02 of the Family Law Rules 2004 (Cth) – Where the order was amended on 27 March 2019 – Where the husband subsequently sought that the discretion be re‑considered by the Full Court having regard to the amended figure on the basis that the amendment was “significant” for s 75(2) discretion purposes – Where the subject error had no effect whatsoever on the re-exercise of discretion made by the Full Court – Where reasons for judgment in respect of the amended order made 27 March 2019 were varied pursuant to r 17.02A of the Family Law Rules 2004 (Cth).

Family Law Act 1975 (Cth) s 79
Family Law Rules 2004 (Cth) rr 17.02(1), 17.02A(b)

APPELLANT:

Mr Trevi

RESPONDENT:

Ms Trevi

FILE NUMBER:

MLC

8475

2014

APPEAL NUMBER:

SOA

2017

DATE DELIVERED:

3 April 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

In Chambers

JUDGMENT OF:

Alstergren CJ, Murphy & Kent JJ

HEARING DATE:

In Chambers

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

18 May 2017

LOWER COURT MNC:

[2017] FamCA 321

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

N Lawyers

SOLICITOR FOR THE RESPONDENT:

Kennedy Partners

Orders

Pursuant to Rule 17.02A of the Family Law Rules 2004 (Cth), the reasons for judgment of the Full Court delivered on 25 March 2019 be varied in accordance with the attached document headed “REASONS FOR JUDGMENT AS VARIED PURSUANT TO R 17.02A OF THE FAMILY LAW RULES 2004 (CTH) ON 3 APRIL 2019”.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Trevi & Trevi (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 38 of 2017
File Number: MLC 8475 of 2014

Mr Trevi

Appellant

And

Ms Trevi

Respondent

REASONS FOR JUDGMENT

On 25 March 2019 this Full Court made orders and delivered reasons for judgment as and by way of re-exercise of the discretion conferred by s 79 of the Family Law Act 1975 (Cth) to make orders for property settlement.
Those orders and reasons for judgment contained an error arising from an accidental slip or omission by the Full Court, namely, the mistake that the parties had evenly divided the net proceeds of sale of the real property known and referred to in the proceedings as the Suburb D property, when in fact those proceeds had been divided between the parties on a 60 per cent/40 per cent apportionment in the wife’s favour. The relevant consequence of that mistake is that to achieve an overall 60 per cent/40 per cent division of property interests in the wife’s favour the amount ordered to be paid by the husband to the wife by Order 1 of the orders made on 25 March 2019 ought to have been $1,407,431 and not $1,570,827.
On 26 March 2019 the parties’ respective legal representatives co-signed correspondence addressed to the Appeals Registrar seeking correction of the relevant order made pursuant to r 17.02 of the Family Law Rules 2004 (Cth) (“the Rules”). That correspondence was, relevantly, in these terms:
…
This is a joint letter to the Court, signed by the representatives for both parties.
We refer to the reasons delivered by the Full Court on 25 March 2019 and to the orders made by the Full Court on that day. Based on the Full Court’s reasons, the Full Court has mistaken the amount received by the parties from the proceeds of sale of [Suburb D]. The figure provided for in order 1 of the orders of 25 March 2019 being $1,570,827 should be corrected to $1,407,431 (rounded).
The parties request that this matter be brought to the attention of the Full Court and that the order made by the Full Court on 25 March 2019 be corrected pursuant to rule 17.02 of the Family Law 2004 [sic].
…
(As per original)
Rule 17.02(1) of the Rules provides that the Court may, at any time, vary or set aside an order if, inter alia:
…
(e) it does not reflect the intention of the court; or
(f) the party in whose favour it was made consents; or
…
(h) there is an error arising in the order from an accidental slip or omission.
Self-evidently both parties, by the correspondence referred to, requested that the Full Court vary the subject order such that the figure provided for in Order 1 of the orders of 25 March 2019 being $1,570,827 should be corrected to $1,407,431 pursuant to r 17.02.
On 27 March 2019, the written submissions of Senior Counsel for the husband were filed, pursuant to Order 3 of the Full Court orders made on 25 March 2019 directed to costs. Those submissions referred to the “consent position arising in respect of a slip rule order” and relevantly record in this respect:
The slip rule application
The parties have agreed that an order is appropriate pursuant to Rule 17.02 Family Law Rules to delete the reference to “$1,570,827” in order 1 of the orders of 25 March 2018 [sic] and in lieu insert “$1,407,431”. The basis for the correction is as follows.
In [33] of the reasons delivered 25 March 2019, Murphy J sets out a table as to the current financial position of each party reaching an aggregate of $10,204,503 net.
In reaching conclusions as to the net position of each party in that table, his Honour takes into account a distribution to each of 50% of the sale proceeds of the [Suburb D] property. It is respectfully submitted that this statement, which is plainly intended to reflect the effect of the distribution of sale proceeds pursuant to the Primary judge’s orders, constitutes an accidental slip that can and should be corrected pursuant to Rule 17.02.
The Primary Judge makes clear at [515] of her reasons that the proceeds of the [Suburb D] property were to be divided 60% to the Respondent and 40% to the Appellant, consistent with her overall division of the net property of the parties. This was confirmed in order (3)(b)(ii) made by her Honour. This order was unaffected by the stay pending appeal.
Correction of this matter will increase the net property of the Respondent at [33] from $4,551,875 by $163,395 taking her to a net figure of $4,715,270. Correspondingly, the Appellant’s net figure will reduce by $163,395 to $5,489,233.
When these adjustments are made to [33] the adjusting cash payment required to give effect to the Full Court’s reasons becomes $1,407,432.
A letter recording the agreement of the parties is exhibited to [Mr M’s] affidavit.
(Footnotes omitted)
As is reflected in the parties’ jointly expressed position, it plainly was the intention of the Full Court to effect an overall 60 per cent/40 per cent division of property interests, including the Suburb D property sale proceeds, in favour of the wife (r 17.02(1)(e)). By the correspondence referred to, the wife, in whose favour the order for a cash payment was made, consented to varying the amount (r 17.02(1)(f)). As noted, the order as made on 25 March 2019 contained an error as to an amount arising from an accidental slip or omission (r 17.02(1)(h)). By operation of any of these sub-rules, it was necessary for the order to be varied to correct the error and we made an order to effect that correction on 27 March 2019.
The need to deliver these further reasons is because, despite the jointly signed correspondence of 26 March 2019 requesting correction of the order pursuant to the slip rule as earlier quoted; and the written submissions of Senior Counsel for the husband likewise recording the requested variation of the order as earlier quoted; on 28 March 2019 the solicitors for the husband submitted in an email to the Appeals Registrar that:
…the effect of the “slip” is significant, for s. 75(2) discretion purposes. Whilst the parties are in agreement as to the numerical consequence of the “slip”, and the numerical correction required, it is submitted that, in the interests of justice, the discretion ought to now be re-considered by the Court, on the basis of the corrected numbers.
…
We reject this submission, made belatedly in the circumstances referred to, for the reason that the subject error has no effect whatsoever on the re‑exercise of discretion made by the Full Court.
As would be apparent from a reading of the reasons of judgment of the Full Court delivered on 25 March 2019 (and seemingly was apparent to the husband also given the content of each of the correspondence, and his Senior Counsel’s written submissions earlier referred to) the plain intent of the Full Court in re-exercising the discretion was to effect an overall division of 60 per cent/40 per cent of the parties’ property interests in favour of the wife, including the sale proceeds of the Suburb D property. The subject error pertains only to the amount to be ordered to be paid by the husband to the wife to achieve that outcome. It is entirely irrelevant to the underlying exercise of discretion that has been made by the Full Court, as reflected in the reasons of 25 March 2019, that those sale proceeds had already been distributed in a 60 per cent/40 per cent apportionment.
We amended the order of 25 March 2019 to correct the error referred to by order made on 27 March 2019.
Rule 17.02A(b) of the Rules relevantly provides that the Court may, at any time, “correct … an error arising in reasons for judgment from any accidental slip or omission”. In light of the husband’s submission referred to, which we have rejected, we will for completeness take this opportunity to correct the error arising from our accidental slip or omission.
We therefore order that:
(1)Pursuant to Rule 17.02A of the Family Law Rules 2004 (Cth), the reasons for judgment of the Full Court delivered on 25 March 2019 be varied in accordance with the attached document headed “REASONS FOR JUDGMENT AS VARIED PURSUANT TO R 17.02A OF THE FAMILY LAW RULES 2004 (CTH) ON 3 APRIL 2019”.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Alstergren CJ, Murphy & Kent JJ) delivered on 3 April 2019.

Associate:

Date: 3 April 2019