Vance & Vance
[2011] FamCAFC 17
•2 February 2011
FAMILY COURT OF AUSTRALIA
| VANCE & VANCE | [2011] FamCAFC 17 |
| FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – Where an order made by a Judge exercising the appellate jurisdiction was noted in error that it was made by consent – Provision of transcript – Consideration of the circumstances in which orders of a superior court of record created by statute can be amended – Consideration of r 17.02 of the Family Law Rules 2004 (the slip rule) – Where Judge was functus officio – Where error not accidental slip or omission – Application in an appeal to amend orders dismissed. |
| Family Law Act 1975 (Cth) s 94AAA(4) Federal Proceedings (Costs) Act 1981(Cth) Family Law Rules 2004 r 17.02 Federal Magistrates Court Rules 2001 |
| Burrell v The Queen (2008) 238 CLR 218 Newmont Yandale Operations Pty Ltd v The J Aron Corporation and the Goldman Sachs Group Inc (2007) 70 NSWLR 411 DJL v Central Authority (2000) 201 CLR 226 |
| APPLICANT: | Mr Vance |
| RESPONDENT: | Ms Vance |
| FILE NUMBER: | SYC | 4679 | of | 2007 |
| APPEAL NUMBER: | EA | 41 | of | 2010 |
DATE DELIVERED: | 2 February 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 31 January 2011, 2 February 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 5 March 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 200 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Bateman |
| SOLICITOR FOR THE APPLICANT: | John Hunter Solicitor |
| COUNSEL FOR THE RESPONDENT: | Mr Jackson |
| SOLICITOR FOR THE RESPONDENT: |
Orders
Paragraphs 2, 3, 4 and 5 in the Application in an Appeal filed by the father on 25 January 2011 are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Vance & Vance is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPEALLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 41 of 2010
File Number: SYC 4679 of 2007
| Mr Vance |
Applicant
And
| Ms Vance |
Respondent
REASONS FOR JUDGMENT
Introduction
On 12 October 2010 pursuant to a direction made by the Chief Justice, the Honourable Justice Bryant under s 94AAA(4) of the Family Law Act 1975 (Cth) (“the Act”), I exercised the appellate jurisdiction of the Court and heard an appeal by Mr Vance (“the husband”) against certain parenting orders made by Federal Magistrate Altobelli on 5 March 2010.
On 20 December 2010 I published reserved reasons for judgment and made the following orders:
BY CONSENT
(1) The appeal is allowed in part.
(2)The orders made by Federal Magistrate Altobelli on 5 March 2010 be varied as follows:
(a)by deleting from Order 5(h) where appearing “10.00pm” and inserting in lieu “10.00am”;
(b)by deleting from Order 5(i) “10.00pm” and inserting in lieu “10.00am”;
(c)by deleting from Order 6 where appearing “Order 3(a) and (b)” and inserting in lieu “Order 4(a) and (b)”;
(d)by deleting from Order 7 where appearing “Order 3(a) to (e)” and inserting in lieu “Order 4(a) to (e)” and deleting “Order 4(a) to (j)” and inserting in lieu “Order 5(a) to (i)”;
(e)by deleting from Order 8 where appearing the words “and returning the Children to the Mother’s residence” and inserting in lieu “the children from the mother’s residence at the commencement of the time that the children spend with the Father and the Mother collecting the children from the Father’s residence at the cessation of time that the children spend with the Father”; and
(f)by adding to Order 9 the following words “such telephone contact to commence on the day of the making of these orders”.
IT IS ORDERED
(3) The father pay the mother’s costs of and incidental to the appeal.
On 25 January 2011 the father filed an application in an appeal in which he sought the following orders:
1.On an urgent ex parte basis, the audio recording of the Appeal proceeding heard by Her Honour Justice Boland on 12 October 2010 be made available to the Applicant Father within 24 hours of the making of this Order.
2.Order (3) of Her Honour Justice Boland’s Orders, made on 20 December 2010, that “The father pay the mother’s costs of and incidental to the appeal”, be set aside.
3.That the Court grants to the Applicant a costs certificate pursuant to section 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Applicant in respect of costs incurred by the Applicant in relation to the appeal EA 41 of 2010.
4.In the alternative to order 3. above, that the Respondent pay the Applicant’s costs of and incidental to the appeal EA 41 of 2010.
5.The Respondent pay the costs of and incidental to this application.
The application was supported by an affidavit of the father’s solicitor, John Hunter (“the solicitor”) affirmed on 25 January 2011. I will return shortly to the solicitor’s affidavit.
The Appeal Registrar listed the matter before me on an expedited basis and notified the father’s solicitor that paragraph 1 of the application would not be dealt with ex parte as sought in that paragraph, rather the application and affidavit in support were to be served on the mother by 5.00 pm on 28 January 2011.
Today when the adjourned application was before me the parties requested I make orders by consent allowing ground 5 of the appeal, and substituting the costs order sought in the application. I raised with counsel the question of the power for me to make such an order. It was conceded by the father’s counsel that she was unable to identify any power which would permit the consent order to be made.
In summary it is submitted on behalf of the father that Order 3 of the orders made by me on 20 December 2011 is capable of amendment under r 17.02 of the Family Law Rules 2004 (“the rules”) (“the slip rule”).
In his affidavit in support of the application the husband’s solicitor, after referring to Order 2(e), deposed, at paragraph 6 of his affidavit, as follows:
Based upon Her Honour Justice Boland’s error (set out above), Her Honour Justice Boland erred in making an order that the Applicant pay the Respondent’s costs of and incidental to the Appeal (EA41 of 2010) on the basis that the Applicant had been unsuccessful in all of the grounds agitated before Her Honour Justice Boland.
The mother was represented before me at the hearing of the appeal on a direct access brief by Mr Jackson of counsel. She was also represented by him on this application. The father was at all hearings represented by Ms Bateman of counsel.
I note that the appeal file discloses that the father’s solicitor endeavoured to file a Notice of Appeal against my orders on 18 January 2011, and that Notice was properly rejected by the Appeal Registrar who advised the father’s solicitor that the only appeal available is if special leave is granted by the High Court to appeal. So far as I am aware, no application for special leave has been filed in the High Court.
It is therefore necessary to consider whether or not I am functus officio (see Burrell v The Queen (2008) 238 CLR 218), and, in that event, whether my order could and should be amended under the slip rule.
The application to be provided with the audio recording
As noted by the husband’s solicitor, in paragraph 2 of his affidavit, I have tendered my resignation of my commission as a Judge of the Court and of the Appeal Division to the Governor-General effective on 4 February 2011. For efficiency and to enable me to deal with this application I caused a copy of the transcript to be obtained. On 31 January 2011 when the matter was listed before me I provided a copy of the relevant transcript to each of the parties and their counsel, and adjourned the hearing until 2 February 2011.
The relevant law
Rule 17.02 of the rules (“the slip rule”) provides as follows:
(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.
(5)A judicial officer may, after giving each party a reasonable opportunity to be heard, rectify a suspected error referred to the judicial officer.
In Burrell v The Queen the High Court (Gummow A-CJ, Hayne, Heydon, Crennan and Kiefel JJ) examined the question of finality of orders, and the limited circumstances in which the orders of a superior court of record can be amended. Having discussed the “rule” about finality of litigation, at paragraph 21, their Honours said:
The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order 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. [footnote omitted]
Further, at paragraph 28 their Honours said:
The parties to an appeal are given procedural fairness by allowing each a proper opportunity to make submissions before the court makes its decision. Once the court announces the decision it has made, any further hearing is exceptional. To hold that parties must be given a sufficient opportunity to consider whether to ask for a further hearing would convert the exception into the rule. That step should not be taken.
The authorities dealing with the limited circumstances in which a superior court can amend its orders under the slip rule are extensively discussed by Spigelman CJ in Newmont Yandale Operations Pty Ltd v The J Aron Corporation and the Goldman Sachs Group Inc (2007) 70 NSWLR 411. In that case Spigelman CJ also discussed authorities which deal with the inherent power of a superior court to amend its orders. The Family Court, while a superior court of record, as a court created by statute does not have an inherent jurisdiction derived from the common law, but has such powers as are expressly contained in the Act or other statute conferring jurisdiction and such powers as may be implied by those statutes (see DJL v Central Authority (2000) 201 CLR 226).
Two essential criteria have been identified where the slip rule may be invoked:
·where there is a clerical mistake; and
·where there is an accidental slip or an accidental omission.
The learned author of Amending Final Judgments and Orders, John Tarrant, (The Federation Press, 2010) explains at page 52 of his text “If a deliberate decision made by a judge results in an error in a judgment or order, that error cannot be corrected under the slip rule. That is because an error arising from a deliberate decision cannot be described as arising from an accidental slip or an accidental omission”.
The appeal hearing
Before commencing my discussion of the balance of the application it is necessary I briefly refer to the hearing of the appeal, the grounds of appeal relied on by the father, and my reasons for judgment.
As I will now shortly explain by reference to the mother’s submissions at the hearing of the appeal and the transcript, it was conceded on her behalf that there were errors in the Federal Magistrate’s orders. Further, the orders made by me on 20 December 2011 were as sought by the father in his Notice of Appeal with the exception of the order sought by him (paragraph 1) for time with the children each Wednesday from the conclusion of school until 3.00 pm the following day and the costs order. The orders included orders which the mother agreed should be made, and in the case of Order 2(e), an order was made in the terms sought by the mother before the Federal Magistrate.
In the summary of argument in respect of the appeal prepared by counsel who appeared for the mother before the Federal Magistrate (Mr Livingstone), it was conceded that the orders sought in the appeal (Orders 3 and 4 in the Notice of Appeal) could be made by consent. Correctly, however, Mr Livingston noted “such matters are best dealt with by the parents, by trial judges under the slip rule or in correspondence”. At the hearing before me the concession in respect of variation of his Honour’s orders was maintained by Mr Jackson of counsel who then appeared for the mother, with a further concession in respect of Orders 5 and 6 sought in the Notice of Appeal. I recorded these concessions in paragraph 4 of my reasons as follows:
Although the mother opposed the appeal, in her counsel’s written submissions he sensibly acknowledged that the orders contained a number of typographical errors which were amenable to correction under the “slip” rule or that the appeal should be allowed in part, and indicated that Orders 3 to 6 inclusive sought in the appeal could be made by consent.
I also recorded that ground 5 of the Notice of Appeal was not strongly pressed. That ground was drafted in the following terms:
The Learned Federal Magistrate erred by failing to provide reasons for decision and denying the Appellant Father natural justice in providing that the Appellant Father be responsible for collecting and returning the Children to the Mother’s residence, except where changeovers take place at school.
During the course of hearing the appeal, Ms Bateman of counsel who appeared for the father said of this ground:
MS BATEMAN: We don't really press that particular ground particularly hard ‑ ‑ ‑
HER HONOUR: All right. Okay. (transcript, 12 October 2010, p 30)
At paragraph 14 of my reasons, I set out the gravamen of the grounds agitated by the father as follows:
Having regard to the concessions made by the wife’s counsel, the remaining challenges agitated by the father against the Federal Magistrate’s orders asserted error
·in failing to properly apply s 65DAA of the Act insofar as it is asserted his Honour failed to make orders for substantial and significant time because his Honour’s orders did not provide for a 24 hour period (“a day”) to be spent by the father with the children mid-week;
·in denying procedural fairness to the father in taking into account academic publications without drawing those publications to the attention of the father and giving him an opportunity to be heard in respect of such publications;
·in failing to take into account the first Family Report prepared in the proceedings; and
·in factual findings relied on which were asserted to be erroneous (the De Winter & De Winter (1979) 23 ALR 211 challenge).
I rejected as demonstrating appealable error, the challenge made under s 65DAA, the denial of procedural fairness to the father by the Federal Magistrate purportedly taking into account academic publications without drawing the father’s attention to those publications, the failure to take into account the first Family Report, and the asserted erroneous factual findings. In other words, I rejected as disclosing appealable error each of the substantive challenges agitated before me. I concluded the father’s appeal was unsuccessful, and that he should pay the mother’s costs of and incidental to the appeal.
At the trial before the Federal Magistrate the father’s counsel had tendered a Minute of Order sought. There is no dispute both parties sought the Federal Magistrate make an order for shared delivery and collection of the children by the parents.
The Federal Magistrate on 5 March 2010 made orders, including Order 8, which was in the following terms:
All changeovers that do not take place at the school are to be facilitated by the father collecting and returning the Children to the Mother’s residence.
At the appeal hearing before me the mother was represented by Mr Jackson of counsel on a direct access brief. Mr Jackson was briefed shortly before the appeal as other counsel retained became unavailable immediately prior to the date listed for the hearing of the appeal.
Before me it was clear, understandably given the circumstances in which he appeared, and the fact no appeal book had been prepared, that Mr Jackson had not seen the order made by the Federal Magistrate on 29 April 2008 and thus was not aware the mother proposed at the trial a shared delivery and collection arrangement.
When, before me, the issue of whether or not the mother had sought a shared delivery and collection arrangement at trial arose initially Mr Jackson did not concede that had been the case (transcript, 12 October 2010, p 31).
Following further submissions from Ms Bateman, including a submission that the question of delivery and collection was not “a live issue”, Ms Bateman explained:
MS BATEMAN: Yes, that's right. I mean we didn’t make it as a consent order, but it wasn’t a matter that was in issue. I think they might have flipped it about. One way one was to deliver and collect and the other way, but what the father seeks in this appeal - not that it will necessarily be dealt with that way - is what the mother was seeking, her way. But it certainly wasn’t in issue that it be a shared ‑ ‑ ‑
HER HONOUR: That there was to be a shared arrangement.
MS BATEMAN: Yes.
HER HONOUR: All right. That deals with ground 5… (transcript, 12 October 2010, p 33)
During submissions by Mr Jackson the following exchange occurred:
… I move to ground 5. Your Honour, I maintain the written submissions of Mr Livingstone in ground 5. I don't know if your Honour has had a chance to ‑ ‑ ‑
HER HONOUR: I did read Mr Livingstone’s submissions. Let me see if there’s anything I wanted to raise with you in relation to those matters. I think the difficulty is now – I’m just having a look at this was the order - your client actually sought an order be made in accordance with her case outline document. Order 3 of the earlier orders of the federal magistrate were that the father will collect the children from the mother’s residence at the beginning of his time with them, except where the father will be collecting the children directly from school, and the mother will collect the children from the father's residence at the end of their time with him.
Now, that’s order 3 that was made by Altobelli FM on 29 April 2008, and in your case outline document which I think - your client sought that those orders numbered 2(d) to (f) to 6 inclusive, which includes (3), be made.
MR JACKSON: Yes. I don’t have any indication that that changed. That was a case outline which was dated 2009 and the trial I think concluded in February 2010.
HER HONOUR: I can’t see anything in the submissions where your client changed a position about that.
MR JACKSON: I can't either, your Honour. Unless I can I've got difficulty ‑ ‑ ‑
HER HONOUR: So from that point of view you would have to concede, would you not, that his Honour has made an order that neither party sought?
MR JACKSON: Yes, I would have to concede that on the face of the information before this court.
HER HONOUR: It may be that you want to get some instructions from your client as to whether that’s conceded, as well as the other matters.
MR JACKSON: Yes. your Honour, I certainly concede that on the information before you, but I maintain the position that Mr Livingstone indicated that this was not a primary issue, it was an ancillary issue, and that there is no obligation to give reasons. Now, this is the ground, it's a lack of reasons, and there's no question that there's no reasons that have been ‑ ‑ ‑
HER HONOUR: And it's also a procedural fairness ground, is it not?
MR JACKSON: I will need to check the grounds specifically, your Honour.
HER HONOUR: Maybe I have ‑ ‑ ‑
MR JACKSON: You are right, your Honour. There’s denying the father procedural fairness, yes.
HER HONOUR: Procedural fairness, of having an opportunity to say - I mean had he known that order was going to be made he could have said, “Hang on a minute that’s not what the mother sought in her order,” and the difficulty is he hasn’t had that opportunity.
MR JACKSON: Yes. I don’t want to visit difficulties upon this court about this issue, your Honour, but in my submission - and I rely on Mr Livingstone’s submissions where he points out paragraphs 3 - 2, sorry, 58 and 62 of his Honour’s judgment, it would appear that there are difficulties associated potentially with an order where the transportation is shared, and therefore it would be difficult for this court to substitute its own orders. If the ground is founded then it may be a matter that has to return to the court because of those factual issues.
HER HONOUR: It would be a terrible cost to both these parties for that to happen, I would have thought.
MR JACKSON: I will endeavour to get those instructions…. (transcript, 12 October 2010, pp 40-41)
When the matter resumed Mr Jackson advised he did not have instructions to concede that the Federal Magistrate made an order that neither party sought notwithstanding his earlier acknowledgment that was the case. The fact a concession was not forthcoming from the mother did not change the reality of the situation, namely that the mother did seek at trial a shared delivery and collection arrangement, impliedly consenting to such an order being made.
In paragraph 65 of my reasons, I noted “[i]t was conceded by the mother’s counsel that the Federal Magistrate did not indicate to the father’s counsel that he was proposing to make an order (Order 8)…” From my reading of the transcript (transcript, 12 October 2010, pp 40 and 41) set out above, that concession was properly made.
At paragraph 66, I said:
However, as the mother has agreed this order can be amended by consent, it is unnecessary I discuss it further.
At paragraphs 83 and 84 of my reasons, I said
As I indicated at the commencement of these reasons, there was no dispute before me that there were a number errors in the orders and that Orders 3 to 8 as set out in the Notice of Appeal could be made by consent.
The orders proposed include a variation of order 8 in respect of delivery and collection arrangements. As appealable error is conceded in respect of that order, I propose to allow the appeal in part, and by consent to make Orders 3 to 8 in the Notice of Appeal.
Under the heading “Costs” at paragraphs 85 and 86 I said:
Before me the father’s counsel conceded if the appeal failed that the father should pay the mother’s costs of and incidental to the appeal. That concession was made notwithstanding the error in the Federal Magistrate’s orders acknowledged by counsel for the mother at the commencement of the hearing before me.
The father has been unsuccessful in all of the grounds agitated before me. In these circumstances, and given the concession of his counsel, I propose to make an order that the father pay the mother’s costs of and incidental to the appeal.
I accept that Mr Jackson did not ask for Order 2(e) of my orders to be made as a consent order at the hearing of the appeal, notwithstanding by implication the mother sought such an order be made at trial. Thus, I accept the notation “By Consent” appearing above Order 2(e) of my orders is in error in respect of that order.
However it is of significance that this ground was not pressed in any substantial way by the father’s counsel. As I have earlier set out Ms Bateman said of this ground “[w]e don’t really press that particular ground particularly hard”. In those circumstances I perhaps unnecessarily addressed the ground in my reasons.
I note that in the application the father does not seek the order (Order 2(e)) which I noted in error was made by consent, be set aside or varied. Nor did the mother seek such an amendment.
Discussion
The father’s counsel seeks that the costs order I made should be set aside as a result of my finding the mother consented to the making of Order 2(e), and that mistake enables me to set aside the costs order and substitute a different order granting the father a costs certificate under the provisions of s 9 of the Federal Proceedings (Costs) Act 1981(Cth). Alternatively he seeks an order that the mother pay his costs of and incidental to the appeal. As I earlier noted, he does not seek in his application that Order 2(e) be set aside.
Ms Bateman submitted that the making of Order 2(e) was an accidental slip made on the basis the mother sought this order by consent at appeal rather than before the Federal Magistrate, and if the error had been drawn to my attention I would have immediately rectified it. It was submitted that my costs order flowed from my conclusion that all orders had been the subject of consent.
I do not accept that the orders now sought can or should be made for the following reasons.
First, while I accept the mother did not consent before me to the making of Order 2(e), there was no doubt such an order was impliedly sought by her at trial. She does not now seek a variation of the order. Further she has not sought special leave from the High Court to appeal my order. The father too sought the making of this order at trial and in his Notice of Appeal.
Second, the father’s counsel at the hearing of the appeal did not particularly press this ground of appeal, but sought this order and other orders (Orders 3 to 6) should be made by me. Those latter orders were the subject of consent. Thus the appeal was allowed by me in part otherwise the matter could have been referred back to the Federal Magistrate for these orders to be amended as reflecting an accidental slip or error by his Honour under the slip rule in the Federal Magistrates Court Rules 2001 (r 16.05(2)).
Third, at paragraph 13 of my reasons, I set out the gravamen of the father’s appeal. The father was unsuccessful in each of the areas of challenge there identified and argued before me. The appeal succeeded in part only in respect of matters which were not subject of true controversy, or taking the father’s point at its highest on a ground which was not “particularly pressed”.
Fourth, the costs orders now sought would involve an independent exercise of discretion, not a correction of a clerical mistake or accidental slip or omission. Before granting a costs certificate under the Federal Proceedings (Costs) Act it is necessary a Court find that each party should pay their own costs of and incidental to the appeal under s 117(1) of the Act, and then find error of law by the Federal Magistrate. Further, an order, as sought in the alternative against the mother, could only be made if in the exercise of my discretion I found there were circumstances which required a departure from s 117(1) having regard to some or all of the criteria in s 117(2A). I am satisfied I am functus officio and have been since the making of my orders on 20 December 2011.
In these circumstances, I am satisfied the application in an appeal filed 25 January 2011 to amend my orders should be dismissed.
I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 2 February 2011.
Associate:
Date: 2 February 2011
6