Slater v Miles & Ors C4/1999 [1999] HCATrans 510 (19 November 1999)

IN THE HIGH COURT OF AUSTRALIA

Registry No C3 of 1999

B e t w e e n -

MERRILEE MARGARET SLATER

Applicant

and

WALTER LAURENCE SLATER

Respondent

Registry No C4 of 1999

B e t w e e n -

MERRILEE MARGARET SLATER

Applicant

and

THE HON JEFFREY ALLAN MILES, REGISTRAR ALLAN JEFFREY TOWILL, SHERIFF JILL CIRCOSTA and ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY

Respondent

Registry No C12 of 1999

B e t w e e n -

MERRILEE MARGARET SLATER

Applicant

and

WALTER LAURENCE SLATER

Respondent

Applications for special leave to appeal

GLEESON CJ

CALLINAN

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 19 NOVEMBER 1999, AT 12.01 PM

Copyright in the High Court of Australia

________________

MS M.M. SLATER appeared in person.

MR D.R. JARVIS: May it please the Court, I appear for the Attorney-General of the Australian Capital Territory in C4 of 1999. (instructed by the ACT Government Solicitor)

GLEESON CJ: Just before we begin, there is a certificate from the Deputy Registrar in relation to matters C3 of 1999 and C12 of 1999 that no appearance has been entered on behalf of the respondent. Affidavits deposing to service on the respondent of the applications for special leave to appeal and other documents have been filed in these matters and in matter C4 of 1999 there is a certificate from the Deputy Registrar to the effect that appearances have been entered on behalf of the first respondent, the Honourable Jeffrey Allan Miles; the second respondent, Registrar Allan Jeffrey Towill and the third respondent, Sheriff Jill Circosta, which indicate that they will submit to the orders of the Court, except as to costs. Yes, Ms Slater.

MS SLATER: Yes, your Honour. Could you first tell me if I have 20 minutes for all the appeals?

GLEESON CJ: Yes, that is right.

MS SLATER: There is only 20 minutes. Thank you. Are we dealing with the appeal, C4, first?

GLEESON CJ: In whichever order you want. That is convenient to do that, though, as far as we are concerned.

MS SLATER: Okay. As regards the officers of the Supreme Court, your Honour, they were officers under the Judiciary Act 1959 in 1976 when these orders were made. They were then officers of the Commonwealth. I would like to add that section 51 of the Constitution says Parliament provides for the execution of decrees under section 51(xxiv) and 39B(1)(c) of the Judiciary Act provides if a matter comes under a law made by Parliament, and this matter does come under a law made by Parliament, it is the law of the Service and Execution of Process Act and that is made by Parliament and that law says that a writ can be issued if it is a law made by the Parliament.

Maintenance was also ordered to be paid to the registrar of the Supreme Court. The registrar refuses to give a certificate of maintenance owing. There is also section 118 of the Constitution - "public Acts and records". No reason was given for judgment from Connor J. I would really like to know where the reasons are for his judgment. They should be in public act and records and they have no records of them and the Supreme Court refuses to give anything out.

Section 76 of the Constitution provides for a writ against an officer, a Supreme Court officer, a court officer, and in this case the writs required Chief Justice Miles to do his duty. As head of the court, it is his duty to see that the decree orders are enforced. He said, and has held and ruled there was an application, transferred only, and stated in 1994 that an application for property settlement was transferred only and in 1997 he went from property settlement to all orders were transferred to the Family Court.

The transfer laws in the cross-vesting Act which Justice Miles said was transferred under the cross-vesting laws of 1993; they do not provide, because at that particular time they were amended and it did not include the Australian Capital Territory until 1997 so I cannot see how Justice Higgins would have the power to transfer it. There was nothing pending in the courts and the Family Court has no summary jurisdiction.

Justice Higgins gave no reason for his judgment on that day he transferred and, on that particular day that he did transfer, it was a hearing date for leave that was granted by Justice Gallop, leave to enforce the decree. As far as I am concerned he made an error of law simply because, according to the law, you cannot transfer criminal proceedings. This was criminal because the husband was in contempt of court and Joske J has held, authority 7 - he addressed the transitional provisions in 1976 and held the whole of the proceedings:

must be dealt with under the provisions of the Matrimonial Causes Act -

once pronouncement of a decree is pronounced. Joske J also held in the Supreme Court the decree:

becomes absolute by virtue of the operation of s 55 of the Family Law Act.

There was nothing pending in the Supreme Court. There was nothing pending in the Family Court. In 1999 of this year in the Full Court of the Federal Court in an appeal, Justice Higgins said that there was no application in the Supreme Court to transfer. He said neither party had put in an application but he transferred an application. He also said there was no reserved judgment and order 5 of the decree definitely states a reserved judgment.

If it is not a reserved judgment, for instance, Justice Connor declared the interests and the welfare of the children - there were six children under 16 years. If he did not make that judgment he must have left us homeless in the street for 18 years and I should be compensated. Where were the children? Where were the children when he declared their welfare? He had heard, in the transcript, Justice Connor, that I had been living in a women's refuge with the children. I say that is a reserved judgment.

Wright J has held in the Supreme Court that when you reserve your judgment you are bound by the law and you must proceed and continue to make that judgment. It was not in the interest of justice to transfer it. All orders were heard and made. The Federal Court held in 1997 that an application for property settlement was transferred only. The Full Court of the Family Court has also held that an application was transferred only and the Full Court of the Family Court has also ruled that there was an application transferred only and the other orders are in the Supreme Court and were disposed of by Connor J.

Actually, I have seen the reserved judgment in the Supreme Court. In 1997 I saw the reserved judgment and it was quickly snatched off me. I got the home and the husband got the business. There was a home and a business and there were six children. When the husband realised that I had seen the judgment he immediately transferred the property to himself and to two of the children, the adult children, and like I said, Connor J was legally bound by law to make that reserved judgment.

Also, in the Family Court, Bell J confirmed the reserved judgment. That is in the appeal book, page 12. No order of the Supreme Court is enforced. They gave leave and they still will not enforce their order or orders. The legislative powers of the Parliament provide for execution of decrees under section 51(xxiv) and this has been contravened and so has section 51(iii), not fair and just to rehear property and reopen the case which the Family Court did. There were two children in 1994. They gave one to me and one to the husband and they were both in my full custody.

The Constitution at 118, 119 says:

Full faith and credit shall be given.....to the laws, the public Acts -

rights and cruelty. Cruelty still continues. Also, the Constitution protects rights. All my rights have been affected. I do not know what my legal rights are because the Family Court gave the husband 60 per cent and he now has control of all the properties, including one that was bought with another person, jointly owned, after the divorce. Every court - all the rights are affected. Every court enforced its own orders. The Supreme Court retains all original appellate jurisdiction to punish for contempt of its orders. The orders must be enforced when the financial ties and dispose of the marriage finally and end the cruelty.

Justice Miles found, as the Full Family Court and the Full Federal Court, and held it is only in relation to a property settlement. In other words, the Family Court has ruled a financial adjustment was made only because the law of the Family Court, if they do do a property settlement, they must include an order for property settlement which they did not include and they must include an order for transfer of property. None of this was done. According to the Family Court it was done under section 79. That is authority 16. It definitely states and include the form of order. No order was made.

Section 105 of the Family Law Act states you cannot register a "decree made by another court". If a decree is not registered in the Family Court and the applicant, which is me, is the only one who can register it and I did not register it and it is considered not properly before the court. I say Higgins J had no power to transfer. He ordered the transfer on the day of the hearing and he also ordered it to be continued, continuation. Enforcement is not a continuation of the action.

Joske J, at authority 7, has addressed the transitional provisions in 1976 and he held the whole "proceedings must be dealt with under the provisions of the Matrimonial Causes Act", and authority 7, which is McLeod v McLeod, has also held:

in proceedings for a decree of dissolution of marriage together with a request for orders for ancillary relief which commenced before.....the Family Law Act -

mine was made after the commencement of the Family Law Act -

proceedings must be dealt with under the provisions of the Matrimonial Causes Act (Com) as amended being "pending proceedings" within the meaning of s9(1) of the Family Law Act 1959 .

Mine was done under 9(1) after the commencement of the Family Law Act. They continued under 9(1). The husband tried to have it on three occasions removed to the Family Court and Justice Connor said it would not stand in the Family Court. He did not say because of the cruelty but I presume that was his reason not to transfer it and the whole of the proceedings Joske J has held includes "all relief sought" in the proceedings for a decree for dissolution of marriage and all relief in the proceedings that are outstanding. He has held that the jurisdiction is invested in the Supreme Court and what I am saying is the Family Court has no jurisdiction. To transfer the other court must have summary jurisdiction. The Family Court has no jurisdiction, has no power over the decree.

The husband has, now that I have this hearing in the Court, now actually got the property in question for sale. It is on the market which proves to me he knows it is mine. The Family Court cannot correct another court's decree. It has no power. Every court enforces its own orders or corrects its slips and errors. The husband's name is incorrect and the law, section 63, it cannot become absolute under section 63 because Joske J has held it must become absolute by force of 55.

We are still financially tight. The husband has full control. The marriage must be disposed of finally, also to end the cruelty. The husband is now trying to have the maintenance orders discharged in the Family Court. The Family Court did not do the maintenance at the trial. They just went along with the property settlement, their so-called property settlement. They did not do any maintenance at all and this year I applied to have the maintenance put up in 20-odd years to the Family Court and the husband reapplied by saying that he wanted it wiped out, dismissed, discharged. Judge Faulks was actually going to discharge the order and I told him that he did not have the jurisdiction to discharge a Supreme Court order so he adjourned it until next week.

Your Honours, it just continues and continues and the husband has all say over the properties. They have rendered me homeless and financially broke. I have had the child. The eldest child was almost 18 at the time of the trial in the Family Court. The other one was only 14. He had just turned 14. Well, I have had the responsibility of him. I had to pay out the mortgage on one of the properties which the husband got. The Family Court, in their law, they say they must indemnify either party of the mortgages.

GLEESON CJ: Yes, thank you, Ms Slater.

MS SLATER: Thank you.

GLEESON CJ: We do not need to hear Mr Jarvis.

These applications which were dealt with together are made in respect of judgments given by the Full Court of the Family Court and the Full Court of the Federal Court. The applications are brought with a view either to seeking the enforcement of an order for a property settlement which is said to have been made by the Supreme Court of the Australian Capital Territory in July 1976, notwithstanding that the judgment of that court records that any question of such settlement be reserved and that no other form of judgment or order has been produced, or to challenge decisions by the two Full Courts effectively holding that the applicant's rights have been exhausted. It may be that the applicant has misunderstood the meaning of the statement that a question or matter is reserved.

The Matrimonial Causes Act (Cth) was replaced by the Family Law Act 1975 on 5 January 1976. Section 9 of that Act required that proceedings of this kind which the applicant had brought be instituted or continued under that Act and not otherwise.

The Family Court has ordered that the applicant's former husband make a property settlement of $70,000 on the applicant. On the making of that order the applicant's rights, under either or both Acts, were exhausted. Both the Full Court of the Family Court and the Full Court of the Federal Court have so held and there is no reason to doubt the correctness of their decisions. The applications must be dismissed, and the applicant must pay the costs of the fourth respondent of the application.

We will adjourn for a short time to reconstitute.

AT 12.25 PM THE MATTERS WERE CONCLUDED