Slater v Slater [1999] FCA 184 (25 February 1999)

Last Updated: 17 March 1999

CATEGORY: NO QUESTION OF PRINCIPLE

FEDERAL COURT OF AUSTRALIA

Slater v Slater [1999] FCA 184

MERRILEE MARGARET SLATER v WALTER LAURENCE SLATER

AG 106 OF 1998

SPENDER, HIGGINS and WEINBERG JJ

25 FEBRUARY 1999

CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG 106 OF 1998

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	MERRILEE MARGARET SLATER Appellant
AND:	WALTER LAURENCE SLATER Respondent
JUDGES:	SPENDER, HIGGINS and WEINBERG JJ
DATE OF ORDER:	25 FEBRUARY 1999
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1. The appeal in proceedings AG 106 of 1998 is dismissed.

2. The notice of motion filed 15 January 1999 is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG 106 OF 1998

BETWEEN:	MERRILEE MARGARET SLATER Appellant
AND:	WALTER LAURENCE SLATER Respondent

JUDGES:	SPENDER, HIGGINS and WEINBERG JJ
DATE:	25 FEBRUARY 1999
PLACE:	CANBERRA

REASONS FOR JUDGMENT

SPENDER J:

1 This is an appeal from the refusal by Miles CJ in the Supreme Court of the Australian Capital Territory to entertain a notice of motion by Mrs Slater dated 28 September 1998. That notice of motion sought the enforcement of orders made by Connor J in the Supreme Court of the Australian Capital Territory in 1976. Associated with that is the contention by Mrs Slater that when Connor J on 28 July made the orders, he in fact reserved a judgment in respect of the settlement of property, that this judgment was kept secret from her and she has only had a glimpse of it in 1997 before it was snatched from her by some court officer.

2 It is a curious fact that if there had been a judgment that was reserved, it would not have been the subject of discussion in the hearing of the application by Mrs Slater before the Full Court of the Family Court, where Mrs Slater sought orders in relation to, amongst other things, the property "Wondarra". The Full Court of Finn, Kay and Holden JJ on 7 August 1995 allowed an appeal from a judgment of Treyvaud J on 9 July 1994, and in the context of the orders in relation to the alteration of property interests that Treyvaud J had made on that day, ordered:

"...
(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 a further sum of $70,000 together with interest calculated as and from 5 October 1994, at the rate provided by the Family Law Regulations."

3 Mrs Slater, in support of her application which resulted in the making of those orders, sought an order that Mr Slater transfer to her all his right, title and interest in the property known as "Wondarra" at Murrumbateman, in return for Mrs Slater paying to Mr Slater an amount equal to 40 per cent of the value of the "Wondarra" property at its 1973 condition and current value. It is extraordinary, if there had in fact been a judgment given by Connor J in respect of the settlement of property, that Mrs Slater would have made the application which she did and that there would be absolutely no reference to any such judgment by Connor J in the Full Court hearing of the Family Court and at the earlier hearing before Treyvaud J in 1994.

4 A primary matter bedevilling these proceedings is the view by Mrs Slater that there was on 28 July 1976 the reservation by Connor J of judgment in respect of the settlement of property. The order that his Honour made was simply:

"That the questions of settlement of property be reserved and that the petitioner's costs of an (sic) incidental to the proceedings up to and including today be taxed and be paid by the respondent."

5 That order is not a reservation of judgment: that order simply is a reserving of the questions of settlement of property. There is nothing to indicate that Connor J then or later made any judgment at all in respect of the settlement of property.

6 As to Mrs Slater's basis of her present appeal, it has to be recognised that the order of Higgins J of 29 November 1993, where he transferred the matter, being matrimonial cause 600/75, to the Family Court of Australia under the provisions of the cross-vesting laws, had the effect that the Supreme Court had then and has now, no jurisdiction in respect of the matters which Mrs Slater wishes to pursue.

7 The Full Court of the Federal Court of Australia on 27 June 1997 made it plain beyond argument that the Supreme Court of the Australian Capital Territory no longer had any jurisdiction to entertain an application for property settlement, nor did it have jurisdiction to entertain applications for maintenance, and that Court made it plain, at least by necessary implication, that there was no power in the Supreme Court to punish for contempt of those orders.

8 The presiding judge, Gallop J, in his reasons for judgment said at paragraph 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."

And later in his judgment at paragraph 13:

"Mrs Slater has complained in a general way that the transfer of the proceedings to the Family Court has deprived her of justice. One can understand her saying that. She is plainly seriously aggrieved by the results that she obtained in the Family Court and in a frank answer to a question asked from the bench, she has said that by instituting these proceedings, what she wants is somehow to get the maintenance which has not been paid pursuant to the order that was made on pronouncement of the decree nisi on 28 July 1976, she wants the property, "Wandara", and she wants compensation for `What she has been put through'."

O'Loughlin J said in his concurring judgment:

"...her entitlements to a property settlement have been concluded."

Drummond J, in an important passage in his judgment concurring with the judgment of Gallop J, said:

"...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."

9 The application for special leave to appeal to the High Court from the judgment of the Full Court was refused, Brennan CJ importantly observing:

"Mrs Slater has reached the end of the appeal process. No error appears in the judgment of the Full Court of the Federal Court which warrants a grant of special leave to appeal to this Court. Special leave must be refused and, whether Mrs Slater accepts the decisions or not of the courts below, they are binding upon her. Accordingly, special leave is refused."

10 Mrs Slater persists in ignoring the binding nature of the decisions made concerning her matrimonial cause. It seems to me plain that there has been no error demonstrated in relation to the decision of Miles CJ concerning the notice of motion dated 28 September 1998. That application, it seems to me, was an abuse of process in that it was an attempt to re-litigate matters which had been conclusively and finally determined against Mrs Slater.

11 In relation to a notice of motion which has been filed on 15 January 1999, made returnable before the Full Court, seeking that Walter Laurence Slater be committed to prison for his contempt of the Supreme Court decree nisi dissolution of marriage made 28 July 1976, it is sufficient to say that the Federal Court of Australia, has no jurisdiction to grant the orders sought by that notice of motion, and for that reason it should be dismissed.

12 It seems to me that the appeal should be dismissed and the notice of motion also dismissed: the notice of motion for want of jurisdiction, the appeal because it must fail on the merits and also because it constitutes an abuse of process.

HIGGINS J:

13 I would agree with that result and those reasons. I would only reiterate that if any court has any power to enforce any order that remains unenforced in respect of these matrimonial proceedings, it is the Family Court of Australia, and only that court.

WEINBERG J:

14 I also agree.

SPENDER J:

15 The orders of the court are that the appeal in proceedings AG 106 of 1998 be dismissed and the notice of motion filed 15 January 1999 be dismissed. We will not make any order as to costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender, the Honourable Justice Higgins and the Honourable Justice Weinberg.

Associate:

Dated: 25 February 1999

The appellant appeared in person.
The respondent appeared in person.
Date of Hearing:	25 February 1999
Date of Judgment:	25 February 1999