FEDERAL COURT OF AUSTRALIA
APPEAL – order that Supreme Court of the Australian Capital Territory had no jurisdiction to hear motion for property settlement – transfer of proceedings to Family Court.
CROSS-VESTING – order transferring matrimonial proceedings to Family Court – effect thereof was to divest Supreme Court of the Australian Capital Territory of jurisdiction.
Family Law Act 1976 (Cth)
Cross-Vesting Act 1993 (Cth)
MERRILEE MARGARET SLATER and WALTER LAURENCE SLATER
No. AG 16 of 1997
JUDGES: GALLOP, O’LOUGHLIN and DRUMMOND JJ
PLACE: CANBERRA
DATED: 27 JUNE 1997
GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA )
) AG 16 of 1998
CANBERRA DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL FROM THE SUPREME COURT OF
THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: MERRILEE MARGARET SLATER
Appellant
AND: WALTER LAURENCE SLATER
Respondent
JUDGES: GALLOP, O’LOUGHLIN, DRUMMOND JJ
PLACE: CANBERRA
DATE: 27 JUNE 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
1. Appeal against order of Supreme Court of the Australian Capital Territory made on 28 October 1994 be dismissed.
2. Application for leave to appeal against order of Supreme Court of the Australian Capital Territory on 7 February 1997 be refused.
3. There be no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA )
) AG 16 of 1998
CANBERRA DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL FROM THE SUPREME COURT OF
THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: MERRILEE MARGARET SLATER
Appellant
AND: WALTER LAURENCE SLATER
Respondent
JUDGES: GALLOP, O’LOUGHLIN, DRUMMOND JJ
PLACE: CANBERRA
DATE: 27 JUNE 1997
EX TEMPORE REASONS FOR JUDGMENT
GALLOP J:
1. By supplementary notice of appeal dated 23 April 1997, Mrs Slater seeks to appeal and seeks various orders, which are set out at the end of the notice of appeal, and pleads various grounds for those orders to be made. Mrs Slater has appeared before us today to prosecute that appeal as instituted by that supplementary notice of appeal or amended notice of appeal. The respondent, her former husband, is represented by counsel.
2. It became clear at the commencement of the hearing that what is really before us today is an appeal against an order of the Chief Justice of the Supreme Court of the Australian Capital Territory, that that court had no jurisdiction to entertain the motion which was then before it, it being a motion instituted by notice of motion of 18 October basically seeking an order that the respondent husband transfer to Mrs Slater his interest in the former matrimonial home called Wandara, and that he pay her the sum of $1,000,000 in compensation and certain other orders.
3. Furthermore, it was crystallised at the commencement of the hearing before us that the appellant’s proceedings are also proceedings in this court for leave to appeal against an order made by the Chief Justice on 7 February 1997, in which his Honour refused to receive or allow the appellant to file a notice of motion seeking further orders. He directed that the notice of motion not be accepted for filing. The Chief Justice, in his reasons for judgment delivered ex tempore on 28 October 1994, traced the course of the litigation between Mrs Slater and her former husband. It is necessary to refer to some extent to what his Honour said, and to supplement what his Honour said by certain material events.
4. A petition for dissolution of marriage with a claim for ancillary relief by way of property settlement was filed in the Supreme Court of the Australian Capital Territory on 23 December 1975. On 5 January 1976 the Family Law Act 1976 came into effect and the Family Court of Australia was created. By subs 9(1) proceedings for dissolution already pending were to be continued as if the Act had not been passed, that is the Family Law Act, and by subs 9(4) proceedings other than proceedings for principle relief were able to be continued and dealt with as if instituted under the Family Law Act.
5. The marriage was dissolved by a decree nisi, pronounced by Connor J on 28 July 1976 and the papers in the appeal book disclosed that that decree nisi became absolute on 29 August 1976 which is an automatic result under the provisions of the divorce legislation at the time. On the occasion of pronouncing the decree nisi, Connor J stood over to a date to be fixed Mrs Slater’s application for property settlement. She sought a date for hearing of that application for property settlement and eventually the application came before Higgins J in the Supreme Court of the Australian Capital Territory on 29 November 1993.
6. His Honour made an order pursuant to the provisions of the court’s Cross-Vesting Act 1993 that the proceedings be transferred to the Family Court of Australia. That order, having been made, the Supreme Court of the Australian Capital Territory no longer had any jurisdiction in relation to the application for property settlement which Mrs Slater had instituted prior to the Family Law Act coming into operation and in the Supreme Court of the Australian Capital Territory.
7. The matter, the application for property settlement, proceeded in the Family Court on 5 July 1994. Treyvaud J heard and determined the application for property settlement. Both parties were represented by counsel. His Honour observed that the proceedings before him were the application for property settlement commenced in 1975 in the Supreme Court of the Australian Capital Territory and continued under the provisions of the Family Court Act which transformed proceedings under the Matrimonial Cases Act into proceedings under the Family Law Act. Those proceedings were determined in Mrs Slater’s favour in that her former husband was ordered to pay to her the sum of $30,000 as well as being subjected to some further orders as to costs and the granting of liberty to apply.
8. The Chief Justice of the Supreme Court observed that Treyvaud J’s reasons made it clear that he took into account the circumstances of the purchase of the property known as Wandara, the efforts of the parties which had contributed to that purchase, and to the acquisition of other property by the parties over the years. His Honour noted also an unsuccessful application by Mrs Slater in the Family Court on 5 May 1994 to gain sole use of the property Wandara.
9. The matter was taken further on appeal by Mrs Slater to a Full Court of the Family Court and on 10 August 1995 that court made an order varying the order for property settlement made by Treyvaud J by ordering that the husband pay a further sum to Mrs Slater of $70,000 together with interest as from 5 October 1994. Mrs Slater has informed us, and it is not disputed, that both amounts of $30,000 and $70,000 have been paid.
10. Miles CJ observed that those proceedings having been heard and determined in the Family Court, that would be an end of the matter. However, it seems to me that whether his Honour is right about that or not, the order transferring the proceedings to the Family Court out of the Supreme Court of the Australian Capital Territory certainly has divested the Supreme Court of the Australian Capital Territory of any jurisdiction in relation to the application for a property settlement and that the Supreme Court, as his Honour said, lacks entirely the power to arrogate that lost jurisdiction to itself.
11. In my opinion, his Honour 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 that court did and her claim for property settlement was thus heard and determined.
12. Next, it was submitted by Mrs Slater that the parties are still married because the decree absolute, which she has seen, has not been sealed. In my opinion, that is a submission which has no merit whatsoever. The parties clearly have been divorced, as I say, since 1976 and the decree became absolute on 29 August 1976. There is no substance in the argument to the contrary.
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”.
14. She says that the husband has been guilty of harassing her and the children all the time and they live in fear all the time. All of that is her grievance but this court cannot do anything about relieving those grievances.
15. In my opinion, the appeal against the order of the Chief Justice made on 28 October 1994 should be dismissed. In my opinion, he was right to refuse to allow her to file a notice of motion. Her application for leave to appeal against his order to that effect made on 7 February 1997 should likewise be dismissed.
O’LOUGHLIN J:
1. I agree with what the learned presiding Judge has just said. I would like to add a few remarks of my own in the hope that it might be of some assistance to Mrs Slater. It seems to me that her dissatisfaction goes back to the results of the litigation in the Family Court. That court first awarded her $30,000 but it was later increased to $100,000 by the Full Court of the Family Court, but Mrs Slater cannot accept that this sum of $100,000 represents a property settlement.
2. Notwithstanding that members of this court have told her orally during the course of these proceedings that the Family Court has finalised her entitlements to a property settlement, it seems to me that she just refuses to accept what we have told her. She has told us this morning that she is prosecuting these proceedings because at the end of the day she wants arrears of maintenance, compensation and the former matrimonial home. Her identification of her wish to get the former matrimonial home discloses to me the realisation that Mrs Slater just cannot accept that her rights to a property settlement have been concluded.
3. As I have said, this is most unfortunate because she will continue to bear that sense of grievance, that sense of grievance will never leave her unless and until she is able to accept that, even though she is dissatisfied, nevertheless her entitlements to a property settlement have been concluded.
4. As I have said, I agree with the orders of the learned presiding Judge.
DRUMMOND J:
1. I agree with the reasons of the learned presiding Judge and 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.
2. 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.
3. I agree that the appeal should be dismissed.
GALLOP J:
The orders of the court are that,
1. the appeal against the order of the Supreme Court of the Australian Capital Territory made on 28 October 1994 be dismissed;
2. the application for leave to appeal against the order of the same court of 7 February 1997 be refused; and
3. there be no order as to costs.
I certify that this and the six (6) preceding pages are a true copy of the Reasons for Judgment herein of their Honours, Justice Gallop, Justice O’Loughlin and Justice Drummond.
Associate:
Date: December 1998
Counsel for the Appellant: Litigant in person
Counsel for the Respondent: Ms A Tonkin
Instructing Solicitors: Elrington Boardman Allport
Date of hearing: 27 June 1997
Date of judgment: 27 June 1997
