The Slip Rule in Family Law: When can Court Orders be corrected?

Once Court Orders have been made by the Federal Circuit and Family Court of Australia, parties are expected to comply with them as they stand. However, there are circumstances in which an order may contain an accidental slip, mistake or omission.

The slip rule applies in all areas of law, but in Family Law matters it is derived from Rule 10.13 of the Federal Circuit and Family Court of Australia (family law) Rules 2021 which state that the Court may at any time vary or set aside an order if there is a clerical mistake or an error caused by an accidental slip or omission.

Why do we have the slip rule?

The slip rule reflects a practical reality of litigation – mistakes happen.

A typographical error or other accidental mistake can potentially create uncertainty or difficulty in implementing an otherwise clear decision of the Court.

The slip rule is useful to both practitioners and the Court as it allows a Judge to amend Orders either by consent or at the Court’s own discretion if they do not accurately record what was intended or decided in the process of recording the Judgement or Order.

When might the slip rule apply?

The slip rule may be relevant where an Order contains a minor drafting or recording error that does not require the Court to reconsider the substance of its decision.

For example, an order may contain a typographical error in a party’s name, an incorrect date or an error in the description of a payment to be made by one party. If a Judge ordered you to pay $200,000 to the other party in a property settlement but the Order states $20,000, that is a clerical error that can be rectified under the slip rule.

What the Slip Rule Cannot Do

It is important to note that the slip rule does not provide an opportunity for a party to revisit a decision or allow reconsideration of the substance of a Court’s ruling. The key distinction is that the slip rule allows the Court to correct an error in recording the decision and not change the decision itself.

Pawley & Pawley (2017) and the Legal Test

The test for the slip rule was set out by the Full Court in Pawley v Pawley (2017). 

The proceedings concerned a mother that relocated from the Hunter Valley region to Coffs Harbour with the parties two young children. The father filed an Application in the Federal Circuit Court and sought an injunction restraining the mother from ‘relocating’ the children from the area they reside in without the written consent of the Father. The Father also sought Orders for time with the children.

Interim Orders were subsequently made for the children to live with the Mother and spend specified time with the father; however, the Orders did not require the mother to return to the Hunter Valley region with the children.

The Father lodged an Appeal of the Interim Orders on the basis that the Judge erred in failing to direct the mother to return to the Hunter Valley region so that his time with the children could occur. The Judge listed the matter and amended the Orders pursuant to the slip rule to include a restraint against the Mother from relocating from the children’s residence town.

The mother cross appealed.

On Appeal, the Full Court considered whether that amendment was properly characterised as the ‘correction’ of an accidental slip or omission.

The Full Court drew an important distinction between:

• Correcting an order such that it reflects what the Court had actually intended to Order; and
• Using the slip rule to introduce a provision about a matter that the Court had not previously determined.

The Full Court emphasised that the slip rule is only available where the proposed amendment is about one which no real difference of opinion can exist.

Frequently Asked Questions

Can you change a family court order if there is a mistake?

Yes. Under Rule 10.13 of the FCFCOA Rules 2021, clerical mistakes, spelling errors, or accidental omissions can be amended via the slip rule without a formal appeal.

What is the difference between an appeal and the slip rule?

An appeal challenges the legal or factual reasoning behind a judicial decision. The slip rule only fixes an accidental error in the way the order was written down so that it matches what the judge intended to order.

Is there a time limit to apply the slip rule?

Rule 10.13 states the Court may vary or set aside an order at any time, though parties should apply as soon as the error is discovered to prevent enforcement issues.

Need advice about your parenting matter?

If you are unsure whether the slip rule applies to your circumstances, or you require assistance in your family law matter, our experienced family lawyers can advise you on your rights and the options available to you.

Contact our Family Law Team to discuss your circumstances and for advice on your Family Law matter.