Slater v Slater

ground 1 - the misnaming of mr slater 6 Merrilee Margaret Slater and Walter Laurence Slater married on 2 May 1959 at Gundagai in New South Wales. On 23 December 1975, Mrs Slater petitioned the Supreme Court for a decree of dissolution of marriage against the respondent, Walter Laurence Slater, on the ground of cruelty. The petition was brought under the former Matrimonial Causes Act. That Act was later repealed by the Family Law Act which did not commence until 5 January 1976. In addition to the dissolution of the marriage, the petition sought "orders with respect to custody, maintenance, costs and settlement of property", including an order effecting a division in interest between Mr and Mrs Slater in a property known as Burndong (and subsequently called Wondarra) at Murrumbateman in New South Wales. 7 The proceeding, identified as MC 600 of 1975, came before Connor J on 28 July 1976. Mr and Mrs Slater were both represented by counsel. At the outset of their hearing on that day, counsel for Mrs Slater said: "[W]e are going to ask Your Honour to hear the evidence on the main issue and ask Your Honour, if so satisfied, to pronounce the decree. We are going to ask you to make a formal order of custody for the two youngest children … . We are going to ask for an order for maintenance for [Mrs Slater] … and for each of the four children … presently with her. And, to ask Your Honour to stand over the formal orders relating to the custody of the four oldest, together with the questions of property settlement to a date to be fixed." (Emphasis added.) Counsel for Mrs Slater sought to confirm with her that she was not asking the court on that occasion to determine all the matters raised by the petition. This appears from the following exchange: "[Counsel for Mrs Slater]: You will later ask the court, at a suitable date, to give you the custody of all the children, that is the matter still in disputation between yourself and your husband? - Yes. [Counsel for Mrs Slater]: And for a property settlement which is also the subject of a dispute? - Yes." Mrs Slater also gave evidence that, until her solicitor had told her to the contrary, she had been "under the impression" that she held a joint interest with her husband in the Murrumbateman property. This is relevant, by way of background, to later applications by Mrs Slater. 8 At the conclusion of the July 1976 hearing, his Honour said: "I pronounce a decree nisi for the dissolution of the marriage on the ground of cruelty." After making orders regarding the custody of the two youngest Slater children and regarding maintenance, his Honour also said: "I declare that in all the circumstances I am satisfied that proper arrangements have been made for the welfare of all the children. I order that the questions of settlement of property be reserved …" (Emphasis added.) Unless a court otherwise orders, a judgment or order or, in this case, decree takes effect as soon as it is pronounced: see Holtby v Hodgson (1889) 24 QBD 103 at 107 and Rules of the Supreme Court, O 42, r 3.On 28 July 1976, when Connor J pronounced the decree nisi for the dissolution of the marriage of Merrilee Margaret Slater and Walter Laurence Slater, there was no doubt about the identity of the parties, both of whom were represented by counsel and correctly named in the petition. 9 This observation is relevant to what next occurred. When the decree nisi and other orders were subsequently entered in the records of the Supreme Court, an error was made in the name of the respondent. Instead of being named as Walter Laurence Slater, the respondent was incorrectly named in the text or body of the decree as Lawrence Walter Slater. He was also misnamed as Laurence Walter Slater in the heading to the decree. The mistakes did not affect the decree nisi, however, which had already been correctly pronounced. The decree nisi became absolute on 29 August 1976 by operation of s 9(7A) of the Family Law Act. The fact that the respondent was again mistakenly named, this time as Laurence Walter Slater, in the "Certificate of decree nisi having become absolute" did not alter that fact. The error only meant that the certificate, or memorandum, stating that the marriage between Mr and Mrs Slater had been dissolved, failed to give Mr Slater his correct name. Mrs Slater was not married to Mr Slater from 29 August 1976, notwithstanding the error in the record of the decree nisi and in the certificate. 10 The mistake in the name of the respondent was unfortunate, however, because it led Mrs Slater to believe that her marriage to Walter Laurence Slater has not been dissolved. This belief is incorrect. Her marriage to Walter Laurence Slater was brought to an end on 29 August 1976. The mistake in the entry of the decree nisi did not invalidate the order that Connor J pronounced, and the decree nisi became absolute by virtue of the operation of the law, not by virtue of any certification of its dissolution. 11 It follows that Mrs Slater failed to establish that the decree nisi for the dissolution of her marriage to Walter Laurence Slater did not dissolve her marriage to him on 29 August 1976. The misstatement in Mr Slater's name did not affect the validity of the decree nisi pronounced on 28 July 1976, and made absolute by operation of law on 29 August 1976. grounds 2 and 3 - reservation of "questions of property settlement" and arrangements for the children of the marriage 12 As counsel for Mrs Slater sought to make clear at the hearing before Connor J on 28 July 1976, his Honour was not being asked to make any orders with respect to the matrimonial property of Mr and Mrs Slater. Counsel indicated that the property questions were to be considered at a later date, and his Honour did not hear any evidence or receive any submissions on those matters. In keeping with this, his Honour simply "reserved", or held over, "the questions of settlement of property" for hearing and determination to a later time. His Honour could not have "reserved" or "held over" his decision on property issues, as Mrs Slater has come to believe, because he had not heard the parties on the property questions at the time he concluded his hearing on 28 July 1976. A Full Court of the Family Court reached the same view in Slater v Slater (unreported, Full Court of the Family Court, Lindenmayer, Holden & Mullane JJ, 10 June 1999) at [53]. 13 No further step was taken in MC 600 of 1975 until 1993. On 28 October 1993, Mrs Slater filed a notice of motion in the Supreme Court, seeking orders for the finalisation of the property settlement questions that had been held over by Connor J in 1976. On 29 November 1993, Higgins J transferred the proceeding in MC 600 of 1975 to the Family Court of Australia. 14 At the hearing in this Court, Mrs Slater asserted that prior to the order for transfer of the proceedings made by Higgins J on 29 November 1993, there was in existence "a reserved judgment, undisclosed, unexecuted order for property settlement arising from a reserved judgment". In argument, she said: "I have seen the reserved judgment … . It was snatched off me in the Supreme Court. I read enough of it to tell you exactly what is in it. The husband was to transfer his interest, right title and interest in - it was called Burndong I think then, the home at Burndong, Murrumbateman, to the wife. And in return I was to sign over the interests - my interests in the business. Well, that never came about. I have seen that reserved judgment even though nobody believed me. I have seen it. It was handed to me in a small file by itself, I would say purely accidentally, and the chief clerk came up and snatched it off me." 15 As the transcript of the hearing before Connor J on 28 July 1976 makes plain, however, his Honour was asked by counsel for Mrs Slater to hold over the questions of settlement of property to a later date, and that is what his Honour plainly did. Indeed, his Honour could not have done anything else, since he had not heard any evidence or submissions from the parties on the subject. We do not know what it is that Mrs Slater was shown, if she was shown anything at all, but it cannot have been a decision relating to her matrimonial property. 16 This is not the first time that Mrs Slater has made an allegation of this kind in Court. It appears that the same submission was considered and rejected by Treyvaud J on 5 July 1994, by Bell J on 12 January 1998, and by the Full Court of this Court in Slater v The Honourable Jeffrey Allan Miles on 25 February 1999: see [1999] FCA 185 at [27]. 17 Further, although Connor J did not deal with property matters, we reject Mrs Slater's submission that he did not satisfy himself regarding the children of the marriage as he was required to do. As we have seen, the transcript of the proceeding before Connor J on 28 July 1976 records that his Honour specifically stated that he was satisfied that "proper arrangements have been made for the welfare of all the children". His Honour plainly fulfilled his duty under s 63 of the Family Law Act. See Slater v Slater (unreported, Full Court of the Family Court, Lindenmayer, Holden & Mullane JJ, 10 June 1999) at [30]. The transcript shows that Mrs Slater gave evidence as to the arrangements that had been made for the children, and that his Honour specifically questioned her about them. 18 On the hearing of this appeal, Mrs Slater has not satisfied us that we should accept her contentions concerning the existence of an unexecuted order relating to the settlement of matrimonial property, or that there was a failure by Connor J to discharge his statutory duty in relation to the welfare of the children of the marriage. ground 4 - property issues remain to be determined in the supreme court 19 On 5 July 1994, Treyvaud J of the Family Court made orders with respect to the property of the former marriage of Mr and Mrs Slater. His Honour ordered: "That by the 5th of October 1994 the husband pay to the wife the sum of $30,000.00." He also made orders concerning costs. 20 Mrs Slater appealed to the Full Court of the Family Court. On 10 August 1995, the Full Court ordered: "(1) That the appeal be allowed. (2) In lieu of Order (1) made by the Honourable Justice Treyvaud on 5 July 1994 the following order be made: (a) That by 5 October 1994, the husband pay to the wife the sum of $30,000. (b) That within 60 days of this order the husband pay to the wife the further sum of $70,000 together with interest calculated as and from 5 October 1994, at the rate provided by the Family Law Regulations." On that appeal Mrs Slater also unsuccessfully sought an order for the transfer to her of one half of the parcel of land making up the property known as "Wondarra" at Murrumbateman. This fact is relevant to the motion that Mrs Slater agitated on this appeal. 21 On the hearing of this appeal, Mrs Slater submitted that the order made on 29 November 1993, transferring the proceeding in MC 600 of 1975 to the Family Court, was invalid; that the matrimonial property issues had been invalidly dealt with by the Family Court; and that they remained to be dealt with by the Supreme Court. 22 This submission apparently depended on s 9(1) of the Family Law Act which at the relevant time provided: "Subject to subsections (2) and (2A), pending proceedings for a decree of dissolution of marriage or for a decree of nullity of marriage on the ground that the marriage is voidable, and pending proceedings for a separation order, may be continued and shall be dealt with as if this Act had not been passed." For the reasons already stated, as at 29 November 1993, there were no "pending proceedings" within the meaning, and for the purposes, of s 9(1). The decision in McLeod v McLeod (1976) 24 FLR 399 and other decisions to which Mrs Slater referred in this connection had no application to her case. 23 The relevant provision was, instead, s 9(4) which provided: "Pending proceedings constituting a matrimonial cause, not being proceedings for principal relief, whether instituted under the repealed [Matrimonial Causes] Act or under the law of a State or Territory, may be continued and shall be dealt with as if they were proceedings under this Act." 24 "Pending proceedings" were defined in s 9(9) of the Family Law Act as "proceedings that were instituted before the date of commencement of this Act but were not completed before that date". "Proceedings for principal relief" were those proceedings referred to in pars (a) and (b) of the definition of "matrimonial cause" in s 4(1) of the Family Law Act: see the definition of "proceedings for principal relief" also in s 4(1). Pars (a) and (b) related to: "(a) proceedings between the parties to a marriage, or by the parties to a marriage, for a decree of: (i) dissolution of marriage; or (ii) nullity of marriage; (b) proceedings for a declaration as to the validity of a marriage or of the dissolution or annulment of a marriage by decree or otherwise." The other kinds of proceedings referred to in the definition of "matrimonial cause" (including the proceedings described in par (ca) relating to the property of the parties to a marriage), were not proceedings for principal relief. Accordingly, pursuant to s 9(4) of the Family Law Act, issues concerning the matrimonial property of Mrs Slater were to be dealt with as if they were instituted under the Family Law Act. 25 Section 31(1)(a) of the Family Law Act conferred jurisdiction on the Family Court with respect to "matters arising under this Act or under the repealed [Matrimonial Causes] Act in respect of which matrimonial causes are instituted or continued" under the Family Law Act. Section 45 of the Family Law Act governed the transfer of proceedings. Subsection 45(2) provided: "Where there are pending in a court proceedings that have been instituted under this Act or are being continued in accordance with any of the provisions of section 9 and it appears to that court that it is in the interests of justice, or of convenience to the parties, that the proceedings be dealt with in another court having jurisdiction under this Act, the court may transfer the proceedings to the other court." As Mrs Slater's property proceedings were being "continued" in accordance with s 9 and were within the jurisdiction of the Family Court, Higgins J had power, pursuant to s 45(2) of the Family Law Act, to transfer those proceedings to the Family Court if it appeared to him that it was "in the interests of justice, or of convenience to the parties" to do so. That, it seems, was the basis for the decision made by Higgins J to transfer the proceedings from the Supreme Court to the Family Court. Plainly enough, it was open to him to form this view. 26 Following his Honour's order, the property proceedings were validly before the Family Court, which had jurisdiction to hear and determine Mrs Slater's property application. Having done so, these proceedings were concluded. Mrs Slater informed us that she has been paid the money ordered to be paid to her by the Family Court. Nothing, therefore, is left to be done by either the Family Court or the Supreme Court in relation to her matrimonial property issues. 27 Again, this is not the first time that Mrs Slater has challenged the validity of the transfer order made by Higgins J, and the validity of proceedings in the Family Court. On 4 October 1994, Mrs Slater purported to file a notice of motion in the Supreme Court in proceeding MC 600 of 1975, seeking orders that her former husband transfer his interest in the Wondarra property and pay her compensation. The motion was dismissed by Higgins J on 7 October 1994. On 18 October 1994, Mrs Slater filed another motion, seeking orders in the same terms. Miles CJ dismissed this motion on 28 October 1994 and also ordered that no further application be filed in the matter without an order of a judge in chambers. 28 Notwithstanding this, Mrs Slater sought to file a notice of motion in the Supreme Court on 16 January 1997, seeking that the Court determine her entitlements under s 86 of the Matrimonial Causes Act. That provision dealt with the settlement of property. The Registrar referred the notice of motion to Miles CJ who, on 7 February 1997, directed the Registrar not to accept it for filing. On 27 June 1997, in Slater v Slater [1997] FCA 1592, a Full Court of this Court dismissed an appeal from the order of Miles CJ made on 28 October 1994 and refused leave to appeal from his Honour's direction of 7 February 1997. The High Court of Australia refused Mrs Slater special leave to appeal on 10 November 1997. 29 Despite the history of the matter, Mrs Slater unsuccessfully sought to file two more notices of motion on 8 December 1997. On 6 February 1998 and on 3 March 1998, she filed applications in this Court for writs of mandamus directed to Miles CJ and to the Registrar and Sheriff of the Supreme Court. Finn J dismissed these applications on 16 October 1998. A Full Court of this Court dismissed an appeal from his Honour's orders on 25 February 1999 in Slater v The Honourable Jeffrey Allan Miles [1999] FCA 185. 30 On 7 December 2000, Mrs Slater applied to this Court, by motion, for orders for writs of mandamus and certiorari designed to have the Supreme Court determine her entitlements under s 86 of the Matrimonial Causes Act. Madgwick J dismissed these applications on 10 May 2001. Upon the application of the Attorney-General of the Australian Capital Territory, his Honour also ordered that Mrs Slater "not be allowed to institute further proceedings without the leave of a judge of this Court". Madgwick J held that s 5(1)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and/or s 45(2) of the Family Law Act 1975 (Cth) conferred power upon Higgins J to make the transfer order; and that, in accordance with s 9(4) of the Family Law Act, the property proceedings continued and were dealt with in the Family Court as if they had been instituted under that Act and not under the Matrimonial Causes Act. We too are unable to accept Mrs Slater's contention that the property matters were not validly transferred to the Family Court and dealt with under the Family Law Act.

disposition of the matters in this court 31 For the reasons stated, it followed that we dismissed the appeal in matter A 62 of 2000, upon the basis that no appealable error was shown. 32 We also refused leave to appeal from the decision of Higgins J of 17 November 2000, refusing leave to file further documents in proceeding MC 600 of 1975. In written submissions, Mrs Slater said: "I never sought to File "Further Documents", I want Existing Documents Already Filed in the Supreme Court (Decree) Corrected." 33 Even if Mrs Slater's viva voce evidence was accepted, we were of the view that she had not shown that his Honour's decision to refuse leave was attended by sufficient doubt to warrant a grant of leave to appeal. This is the first hurdle that must be overcome for a grant of leave in a case such as this: see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. 34 On 12 January 1998, Bell J of the Family Court also concluded (as we have done) that the mistakes in Mr Slater's name did not affect the validity of the decree nisi pronounced on 28 July 1976. On that occasion too, Mrs Slater claimed that the decree nisi had not become absolute because, amongst other things, her husband was named incorrectly. His Honour held that in January 1998 the decree had been absolute for over twenty-one years, and it was unnecessary to correct the errors which concerned Mrs Slater. On 10 June 1999, a Full Court of the Family Court dismissed an appeal from his Honour's judgment, although it also ordered that the decree nisi and the memorandum of the decree absolute be amended under the slip rule in the Canberra Registry of the Family Court. In Slater v Slater (unreported, Full Court of the Family Court, Lindenmayer, Holden & Mullane JJ, 10 June 1999) at [32]-[34] the Full Court said: "We are of the opinion that the error on the decree nisi as to the husband's name did not prevent it from being a valid decree or from becoming absolute, and that Bell J was not in error in finding that the decree had become absolute. The wife has not succeeded in relation to this ground of appeal, however, as the matter is now before the Court we propose referring the matter to the Registrar of the Canberra Registry of the Family Court of Australia to enable the decree nisi and memorandum of the decree absolute to be amended pursuant to Order 31 rule 6 to correct the slip we have outlined and for amended documents to issue to the wife and the husband. In her written submissions, the wife contended that the Family Court has no power to correct the Supreme Court's decree and that therefore the matter should be transferred to the Supreme Court . . . . Pursuant to s3(2)(c)(ii) of the Family Law Act 1975 the decree nisi and the decree absolute continue to have effect as if made under the Family Law Act 1975. Therefore, the error is able to be amended pursuant to the slip rule contained in the Family Law Rules." There does not seem to us that there is anything left to be done. 35 Two Full Courts of this Court have now held that the Supreme Court is no longer able to deal with issues arising in Mrs Slater's matrimonial cause. In Slater v Slater [1997] FCA 1592, Gallop J said, at [11]: "In my opinion, his Honour [Miles CJ] was correct in holding that the Supreme Court of the Australian Capital Territory no longer had jurisdiction to entertain the application for property settlement. This has caused a good deal of grievance on the part of Mrs Slater. She maintains that what happened in the Family Court did not amount to a property settlement. I do not agree with that submission. The powers of the Family Court extended in relation to her application for property settlement to making orders for the payment of lump sums of money to her in full settlement of her claim for property settlement. Clearly, that is what the court did and her claim for property settlement was thus heard and determined." O'Loughlin and Drummond JJ agreed. Drummond J added: "[I] would add only this, in my opinion the order of Higgins J of 29 November 1993 was effective to divest the Supreme Court of the Australian Capital Territory of the entirety of the jurisdiction it had up to that point in relation to the matrimonial proceedings involving Mrs Slater, not merely the jurisdiction that it had in respect of her then pending application for property settlement. In my opinion, as a result of Higgins J's order of 29 November 1993, the only court that has any jurisdiction to make any orders in the future in relation to those matrimonial proceedings is the Family Court of Australia." 36 Spender J (with whom Higgins and Weinberg JJ agreed) repeated these observations in Slater v The Honourable Jeffrey Allan Miles [1999] FCA 185 at [16-18]. See also Slater v The Honourable Terence John Higgins [2001] FCA 549 at [27] per Madgwick J. 37 So far as we can see, all matters in Mrs Slater's matrimonial cause have now been heard and determined by a court, or otherwise resolved. The parties have been divorced since 29 August 1976, and all issues of matrimonial property have been heard and finally determined by the Family Court. Mrs Slater does not point to any other kind of issue arising from the cause that has not been resolved judicially (although not to Mrs Slater's satisfaction). It thus appears that the motion for leave to file further documents brought by Mrs Slater dated 14 November 2000 could serve no proper purpose and, that being so, his Honour had little choice but to refuse the leave sought. 38 Mrs Slater's motion, notice of which was dated 7 May 2001, was supported by an affidavit sworn by her. The subject of the motion was the property at "Wondarra" (formerly known as Burndong) at Murrumbateman. As already noted, this property has been the subject of application by Mrs Slater since she initiated matrimonial proceedings in the Supreme Court in December 1975. On appeal to the Full Court of the Family Court in 1995, she unsuccessfully sought an order for the transfer to her of half the land. The Full Court declined her application and, instead, made orders for the payment of money to her, intended to resolve all the matrimonial property issues finally. The matter of Mrs Slater's matrimonial property was dealt with conclusively by the Full Court of the Family Court on that appeal. By her motion, Mrs Slater again sought to agitate her claim relating to the Wondarra property, although that claim had been authoritatively determined against her by the Full Court of the Family Court. The agitation of this issue cannot continue, and Mrs Slater has not established any basis for the relief her motion seeks. We also note, that because of the nature of the remedy, no writ of prohibition could, in any event, lie against her husband. Accordingly the motion, notice of which is dated 7 May 2001, was refused. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 12 June 2001 Appellant/Applicant appeared in person

Date of Hearing: 16 May 2001

Date of Judgment: 12 June 2001