Slater v Slater C6/1997 [1997] HCATrans 361 (10 November 1997)

IN THE HIGH COURT OF AUSTRALIA

Registry No C6 of 1997

B e t w e e n -

MERRILEE MARGARET SLATER

Applicant

and

WALTER LAURENCE SLATER

Respondent

Application for special leave to appeal

BRENNAN CJ

TOOHEY J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 10 NOVEMBER 1997, AT 12.30 PM

Copyright in the High Court of Australia

BRENNAN CJ: You are Ms Slater?

MS M.M. SLATER: Yes, I am.

BRENNAN CJ: I understand Mr Slater is also here. You are Mr Slater?

MR W.L. SLATER: Yes, your Honour.

MS SLATER: Your Honour, could I ask you a question before I begin? As regard to the questions, the special leave questions, do I read them out or can I just refer to them?

BRENNAN CJ: These are the special leave questions that you have in your summary of argument?

MS SLATER: Yes, in the summary of argument, yes, your Honour.

BRENNAN CJ: You do not have to read them out, no.

MS SLATER: I do not?

BRENNAN CJ: No, you do not have to read them out.

MS SLATER: I just refer to them, do I?

BRENNAN CJ: Yes. The purpose of having an oral hearing is so that you can supplement, so far as you want to, anything that you have put into writing in your summary of argument. If you are content with your summary of argument, you do not have to say anything. If you want to add something to it, you can add something to it.

MS SLATER: I see, your Honour.

BRENNAN CJ: So, that is the purpose of having an oral hearing of these cases.

MS SLATER: I see, your Honour. What I have actually done, I have cut it down because I realised it was too much for 20 minutes; I have shortened the argument.

BRENNAN CJ: Yes. You understand that you have got 20 minutes in which to speak?

MS SLATER: I do, your Honour. Will I start now?

BRENNAN CJ: Yes.

MS SLATER: The Full Court of the Federal Court showed negligence in dismissing the appeal, on a three-year-old order, made 28 October 1994. I did not appeal against that order, I appealed against the order made 7 February 1997. Chief Justice Miles ordered that the application to file and notice of motion be refused. This meant I had a 21-year-old decree, dissolution of marriage, no decree absolute, a property settlement, a reserve judgment, maintenance and cost orders not enforced.

The Full Court ordered the application for leave to appeal from the order made 7 February 1997 be refused. No reason was given, no application was before the court. I submit leave to appeal is for interlocutory orders only. The order of 7 February 1997 is a final order where Chief Justice Miles regarded the notice of motion as a relisting of the case, the appeal book, page 52, at 14, concerning the decree nisi, dissolution of marriage. He found all orders were enforced by the Family Court and the Supreme Court had no jurisdiction, no power, and the fact I got nowhere results from the fact that the matter had been disposed of and come to an end. No progress was made. The Supreme Court made the decree nisi and orders and abandoned it. The Full Court denied me my constitutional right to appeal against the order of 7 February 1997.

BRENNAN CJ: Can I interrupt you for a moment.

MS SLATER: Yes, your Honour.

BRENNAN CJ: Did not the order nisi become absolute automatically?

MS SLATER: No, your Honour.

BRENNAN CJ: Why not?

MS SLATER: Do you want me to tell you now, your Honour?

BRENNAN CJ: Yes.

MS SLATER: The Full Court found the decree nisi became absolute as an automatic result under the divorce legislation at the time. I submit that it is not automatic, the decree nisi of dissolution of marriage, where children - does not become absolute unless the court makes an order under section 71 of the Matrimonial Causes Act - authority, page 2. The Supreme Court failed to make the order under 71. It was made under section 63 of the Family Law Act - appeal book, page 2, at 24, authority, page 4, paragraph 646 states the court:

must make orders under section 71 in the following way:

2(a) The only children of the marriage to whom section 71 applies

(b) The court is satisfied in all the circumstances that proper arrangements have been made for the welfare of those children.

The order made under section 63 of the Family Law Act has prevented the decree from becoming absolute. Failure by the court to make proper orders under section 71 has led to complications, and I submit this has left the parties still married, as status is not affected until the decree nisi is made absolute. The Supreme Court issued a certificate of decree having become absolute - authority, page 5 at 12 - with the date of order under section 71 crossed out and replaced by 63 of the Family Law Act, made under the wrong law and Act; it must show date of order under section 71. The proceedings are not to be taken to be finally disposed of until the decree has become absolute, in accordance with section 81 of the Matrimonial Causes Act - authority, page 32. Shall I continue, your Honour?

BRENNAN CJ: Yes, but I think I should say to you that once we look at page 5 and we see an order of a superior court which certifies to the decree nisi having become absolute, then unless and until that order is set aside, it has the effect which is purports to have.

MS SLATER: Your Honour, how can it become absolute under the wrong section of the law?

BRENNAN CJ: Well, the court has made the order and it is for that court to decide the order that it should make under the law which it should apply. That is what the nature of a superior court is. It has to decide those questions and it seems to have decided them and decided them against you.

MS SLATER: Yes, well that is why I am here, your Honour.

BRENNAN CJ: Then we come to the property provisions and, ultimately, the Full Court of the Family Court made an order for property matters in relation to you and your husband.

MS SLATER: That is correct, your Honour, but it was an alteration of property interests only. They did not have the power - a reserved judgment. It could not be continued in the Family Court because it was a reserved judgment inclusive with the costs order.

BRENNAN CJ: That was a question of whether Justice Higgins had power to transfer the proceedings to the Family Court, was it not?

MS SLATER: That is right.

BRENNAN CJ: So that all these orders have been made by superior courts and on each occasion you have endeavoured to challenge their power or their jurisdiction to make the orders.

MS SLATER: That is correct, because as far as I am concerned, your Honour, Justice Gallop did not have the power to transfer the property settlement to be continued. It was not a continuance of the Act. It was a reserve judgment and a reserve judgment is where a judge makes a decision in his own time later and is bound by that decision by law. He is bound to make that decision and I believe, your Honour, he did make that decision and that is what has caused me 21 years of hell. I believe he made the decision because of the baby and five children, 16 and under. I believe I got the property and it has made my life a misery and I just cannot get through this brick wall.

BRENNAN CJ: The problem is, I am afraid, Mrs Slater, that the courts have found against you on each of these occasions. I should not say on each of these occasions. On some occasions they have found for you, for example in the Full Court of the Family Court. But once the findings have been made by those courts, that is the end of the road.

MS SLATER: I beg to differ, your Honour. The Full Court of the Family Court went back to 1975 before the decree nisi was made. I was not divorced then, supposedly. I know I am still not divorced. Under the Constitution, I have a right to divorce and remarry. I have been denied that right. I am not divorced and the Family Court went back to 1972 before the divorce and took the property, the matrimonial home, as belonging to the husband.

KIRBY J: You say you are not divorced, but there is in the documentation which has properly been put before us, page 5 of the appeal papers, the certificate which indicates that in so far as the Constitution provides for the Family Law Act and in so far as the Family Law Act has been administered by the Capital Territory Supreme Court, that a decree absolute has been made in your case, so you are divorced.

MS SLATER: No, I am not divorced because it has the wrong law - - -

KIRBY J: I know you do not acknowledge that but you - - -

MS SLATER: You cannot mix Matrimonial Causes Act laws and Acts with Family Law Acts - laws and Acts, and that is just what they have done. It was ordered under the Matrimonial Causes Act. The orders were made. It was not pending. Then how can it come under the Family Law Act when it must be 71, the law states, it must be made under 71, the order. How can we get 63 in the decree nisi when it is made under the Matrimonial Causes Act?

BRENNAN CJ: Mrs Slater, I understand that you do not accept the correctness of many of the decisions that have been made in the courts, but the courts exist in order to make decisions which are final and if the people who come before the courts cannot accept the finality of their decisions, they occasion themselves great concern without any prospect of relief. That seems to be the problem in this case.

MS SLATER: It is not the problem in this case, your Honour. The problem is I am still married to this man and I want my freedom. I want my freedom. I have not been allowed to say what I wanted to say about the Federal Court. They were negligent in going back to that order. I appealed against the order of the 7th. I did not appeal against the order of the 28th. It was a three-year-old order and there were differences of opinion, differences of opinion between the judges below in both of the orders, the 28th and the 7th.

Chief Justice Miles gave the same reason: no jurisdiction in the matter and he also stated the fact that you got nowhere is because it has all been disposed of and come to an end. Why would he say that? Two justices of the Full Court disagreed with Justice Miles and found the Supreme Court no longer had jurisdiction in the property settlement only.

Appeal book page 65 at 4 - this was clearly in disagreement with Chief Justice Miles. The appeal should have gone in my favour because this left all other orders, decree orders in the Supreme Court with no file. The Full Court was aware the maintenance had never been paid. That is an order and the maintenance had never been paid and it is current. The Full Court stated Chief Justice Miles had found the property settlement, had been heard and determined in the Family Court and that would be the end of the matter and added whether his Honour is right about that or not, appeal book page 64 at 38, under section 25 of the Matrimonial Causes Act, authority page 11.

I submit all jurisdiction was conferred on the Supreme Court when it made the decree and orders under the Matrimonial Causes Act and should be exercised in accordance with that Act. The Full Court failed to remedy the error under section 22 of the Federal Law Act - authority page 49 - and left the error uncorrected. Again, all constitutional rights have been denied. I have been denied the right to appeal.

I have been denied the right to a divorce, the right to remarry, and that is where question 2 applies: should there have been progress taken since pronouncement in 1976 to proceed on an Act upon the decree to make an order under section 71 of the Matrimonial Causes Act? To become absolute, it must be made under section 71. And question 3 applies: should the decree be exercised as a matter of right of the Constitution provided under section 51 - marriage, divorce and execution. Question 4 applies: under the Constitution there shall be marriage and divorce. In this case, there was no divorce. Is it wrong to deny this right?

KIRBY J: Have you received the payment pursuant to the Full Court's variation of the earlier order? They increased the order to $100,000, I think - increased it by 100,000.

MS SLATER: They increased it by 70.

KIRBY J: Yes, and you have received that sum?

MS SLATER: Yes, after about 14 months. The point is, your Honour, the property, if it was not awarded to me by Justice Connor, which I firmly believe it was, it is still in joint names. This is my husband. I live in rented accommodation. I cannot live in my own home. My life is hell, all because I am not divorced; all because he wants my - what I have got, and what he has got.

KIRBY J: Well, you keep saying you are not divorced but, on the face of the public record of the superior court, which this Court has to respect, you are divorced and you - - -

MS SLATER: I am not divorced, because it must be made - the law states, under section 71 - - -

KIRBY J: But there is a principle of law that you have been informed of and that is that if it is an order of a superior court, it will be respected until it is set aside. It remains in force and, on its face, the degree absolute has been pronounced and you are divorced.

MS SLATER: Also, the Federal Court would have to be aware - they were aware the maintenance was not paid - they would have to be aware that the respondent is in contempt of court. Question 8 applies: should the respondent be compelled to comply and punished for not carrying out the acts required of him and charged with contempt? It ultimately demonstrates you do not have to abide by or enforce a court order. It is important to all persons, as this case will set a precedent for others to follow. None of the maintenance has ever been paid. There is a certificate from the registrar for maintenance owing, appeal book page 97.

TOOHEY J: Mrs Slater, there is no doubt that in 1976 a decree nisi was made by Justice Connor, is there?

MS SLATER: That is correct.

TOOHEY J: And that, in making that degree nisi, his Honour made declarations as to the - that satisfactory arrangements had been made for the children.

MS SLATER: That is correct.

TOOHEY J: And, as the Act then stood, the degree nisi would become absolute one month subsequently, which, in fact, is what happened, but it seems, for reasons that I must confess I do not understand, and I am not sure there is any explanation anywhere, the form is expressed in a somewhat different way. But there can be no doubt that, as the Act stood and, having regard to the order made by Justice Connor, that the degree nisi became absolute, and it has been so treated by every court before whom the matter has come since that time, has it not?

MS SLATER: Well, I can understand, your Honour, when the law definitely states it must be made - it is made under the Matrimonial Causes Act, it must be made under section 71. It was made under section 63 of the Family Law Act. You cannot mix two Acts, courts do not do that. They do not mix two laws, two Acts. They do not mix them on the one document, so, therefore, I cannot see how I can be divorced.

TOOHEY J: All I am pointing out to you that, as the Act then stood - and not focusing too much on the form itself - that the order nisi, or decree nisi perhaps it was in those days, having been made on 28 July, and the Act providing that if arrangements were made for the children the decree would become absolute one month later - - -

MS SLATER: But at that stage arrangements were not made for the children.

TOOHEY J: But the order of Justice Connor on 28 July - if you look at page 2 of the application book - makes that declaration.

MS SLATER: That is correct, your Honour, but he reserved the property judgment. The property settlement judgment he reserved, and he would have made a judgment on that order, and it has been withheld by the Supreme Court.

TOOHEY J: I am not speaking about the property settlement, I am speaking of the arrangements made for the children.

MS SLATER: Well, that is their welfare, your Honour. I had nowhere to live.

TOOHEY J: I understand - - -

MS SLATER: I was forced to live with this man at this stage - at that stage.

TOOHEY J: I think I understand what you are saying in that regard. All I am pointing out to you is that, at the time that the order was made on 28 July 1976, and the order stating that proper arrangements had been made, then, as the Matrimonial Causes Act stood, the decree nisi would become absolute one month later.

MS SLATER: It would only become absolute, your Honour, if the orders were made under section 71 in the following way, which we have already been through, at 2(a):

The only children of the marriage to whom s.71 applies -

It must come under that order. If the orders are not made - failure of the court to make proper orders under section 71 will lead to complications and prevent the decree from becoming absolute, authority page 5 at 12. And the date of order under section 71 must appear. 71 was crossed out and replaced by 63 of the Family Law Act.

KIRBY J: I think we have been through this. Why have you not enforced the maintenance order?

MS SLATER: I have tried. I have tried. The Supreme Court just ignored it, and they are still ignoring it. I have been hounding the Supreme Court for the last four years, continuously, until I went to the Federal Court and, of course, they sent it down to the Family Court, which was not right. They did not have the power. Justice Brennan told me himself - because I have been here before - the Family Court did not have the power over the decree nisi. That is why they did not change the titles, and that is why they did not give me a property settlement. They must do a property settlement, by law, if they do an alteration of property settlement.

BRENNAN CJ: I am afraid your time has expired, Mrs Slater, so I am afraid that is the end of your application.

MS SLATER: Thank you, your Honour.

BRENNAN CJ: Now, we do not intend to call on you to say anything, Mr Slater.

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.

Adjourn the Court to Tuesday next at 10.15 am

AT 12.55 PM THE MATTER WAS CONCLUDED