Bailey v Marinoff

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Bhagat & Sandhu has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 9 April 2025 the Court made final orders pursuant to Part VIII of the Family Law Act 1975 (Cth) ("the Act") following a contested hearing over three days.
2. The orders in summary provided for the husband to transfer to the wife his interest in two properties, for the wife to transfer to the husband her interest in one property and for the husband to make a cash payment to the wife. In addition to those orders, various other orders were made affecting the property of the parties.
3. On 1 May 2025 the husband's solicitors by email sought for the matter to be re-listed for the purposes of making an application pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The matter was re-listed on 5 May 2025.

1. On the relisting, counsel for the husband submitted that the husband sought to vary Order 2(a) of the orders made 9 April 2025 being the order that required the husband to make a cash payment to the wife. Counsel for the husband submitted that at paragraph 40 of the judgment, the Court had made a mathematical error in calculating the quantum of the parties' liabilities. That error led to a consequential error in the calculation of the net pool of assets and correspondingly an error in the amount the husband was to pay the wife. The husband's counsel submitted that the amount payable by the husband should be $57,931.68.
2. The wife's solicitor conceded that there was an error in the calculation of the liabilities and agreed that it was necessary for there to be an amendment to Order 2(a) in the terms submitted by the husband's counsel.
3. The wife's solicitor, however, contended that under the terms of the order the wife was to receive a sum of money in a Westpac bank account which at the time of hearing had an agreed balance of $16,323. The wife's solicitor submitted that the current balance of that account was $11,619 because $4,704 has been deducted to meet various mortgage payments and that the difference between the two amounts should be added back to the amount payable by the husband to the wife.
4. Counsel for the husband contended that the amount had been applied in relation to various mortgage payments, but the amount should not be added back.
5. Beyond the parties' submissions there is no evidence as to how the monies were utilised by the husband.

1. Having made final orders in proceedings, the Court's power to vary those orders is limited. Pursuant to r 10.13 the Court may do any of the following:

10.13 Varying or setting aside orders

(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.

1. In Noetel and Quealey [2005] FamCAFC 677; (2005) FLC 93-230 the Full Court observed as follows:
   1. The slip rule is a well settled common law convention which allows for an error arising from an accidental slip or omission or an ambiguity or infelicity of expression not of substantive significance to be corrected at any time by a judge by further order.
2. The rule exists to permit the correction of accidental errors or omission. The rule, however, has limitations and does not exist where it would involve the exercise of a discretion or a reconsideration of the substance of the Court's ruling.
3. In the above circumstances I am satisfied that r 10.13 can be availed for the purposes of correcting the obvious mathematical error that led to the making of Order 2(a). Accordingly, I propose to amend Order 2(a) pursuant to the slip rule to provide for the husband to pay to the wife the sum of $57,931.68.
4. The oral application of the wife falls into an entirely different category.
5. Subject to the limited exceptions arising under the slip rule, once final orders have been made and entered into, the Court is functus officio. The Court does not have a residual power to re-open its orders in the manner sought by the wife (Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529).
6. The High Court in DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 observed as follows:
   1. We would add that the statement in De L v Director-General, NSW Department of Community Services [No 2] that the power of the High Court to re‑open its judgments and orders is not in doubt should not be misconstrued. In that case and in all of the authorities respecting orders of this Court which were referred to in that passage, the applications were to re‑open final orders and were made before entry of the orders in question. There is, as yet, no decision of this Court which turns upon the position after entry of its final orders.
   2. The Family Law Act in its text and structure provides no express conferral of the power sought to be exercised in the present case. Nor is there an inherent power by reason of the description in the statute creating the court of it as "a superior court of record". Further, no such power is derived by necessary implication from the statutory structure, in particular from the exercise of the appellate jurisdiction conferred by Pt X of the Family Law Act.

1. I am satisfied I have no power to amend the order in the terms sought by the wife.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.