Silver and Silver

[2009] FamCA 163

FAMILY COURT OF AUSTRALIA

SILVER & SILVER [2009] FamCA 163

FAMILY LAW – PRACTICE AND PROCEDURE – Dismissal

APPLICANT: Ms Silver

RESPONDENT: Mr Silver

FILE NUMBER: CAC 100 of 2009

DATE DELIVERED: 27 February 2009

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 27 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pope

SOLICITOR FOR THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. The application in a case by Ms Silver seeking leave to institute proceedings in this Court is dismissed. 

2. The supplementary application in the application in the case that the respondent, Mr Silver, be dealt with for contempt of Court is dismissed on the basis that there is no cause shown therefor in the material before me.

3. By way of further caution, if it were to be considered that leave was not necessary for the institution of the applications that are sought to be made by Ms Silver in these proceedings as indicated in her initiating application (Family Law) dated 12 December 2008, then that application is summarily dismissed. 

IT IS NOTED that publication of this judgment under the pseudonym Silver v Silver
is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER:  CAC 100 of 2009

MS SILVER

Applicant

And

MR SILVER

Respondent

REASONS FOR JUDGMENT

1. I say, by way of short reasons therefore, that the orders sought by the wife Ms Silver are not proper grounds for a cause of action in this Court.  I deal with them separately and for the sake of completeness. 

2. The first order sought is that this Court continue in accordance with an order made by the ACT Supreme Court with the finalisation of proceedings between the wife and the husband.  I am satisfied from my review of the file and from the evidence before me that the Family Court did in fact complete that continuation.  There is no current matter before this Court.  The order sought is therefore inappropriate.

3. The second order sought to notify this Court of family violence.  If there were proceedings validly before this Court, it may be appropriate to file a Form 4 as in fact the wife did in these proceedings.  It has no relevance beyond notifying the Court that there is violence as a matter to be taken into account in the proceedings before the Court.  If there are no proceedings, the notification is accepted but not otherwise relevant.

4. The third order sought is that this Court acknowledges "no certificate of Decree Absolute".  I do not accept from the material I have before me that the Court has failed to carry out whatever was necessary to ensure that the Decree Absolute was appropriately recorded. 

5. I have agreed with Ms T Silver (“the Applicant’s daughter”) that I will notify the ACT Supreme Court by letter of the order that was made on 10 June 1999 by the Full Court of the Family Court in this matter and further confirm that there are no proceedings pending before this Court.

6. The further orders that were sought on an interim basis were that the Family Court release the orders made by the ACT Supreme Court.  I am not sure what that means, but the file is available for inspection, if necessary, by the wife.

7. There was then a request for the matter to be dealt with as a matter of urgency.  This does not follow in that there is no matter to proceed as a matter of urgency.  I accept that there are allegations that the husband is being, in the words of the wife, “habitually cruel” to her and her daughter.  These are matters, if proved, which should be and could be the subject of criminal proceedings.  They are not properly matters before this Court in that sense.

8. Finally, the order sought on an interim basis is "to reinstate the Supreme Court finding of cruelty and to see to it that the respondent is penalised and not rewarded for his cruelty as was in this Court when cruelty denied."  There was a finding in the course of the divorce proceedings before the ACT Supreme Court that the ground then existing under the Matrimonial Causes Act1959-1966 (Cth) that the husband had been "cruel" within the definition of that term under the Act. That finding had been made out and, in terms of the wording of the Act at that stage, the husband had been habitually guilty of cruelty to the petitioner. However, that was not a conviction of cruelty and, even it were, cruelty in itself is not a crime but rather the conduct associated with it.  Sadly, the parlous situation in which the wife and her daughter find themselves are matters that are not something with which this Court can assist.  To the extent that the husband is engaging in criminal activities, the police should take the appropriate steps and investigate and prosecute.

9. The matter is removed from the pending cases list.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Associate: 

Date:  12 March 2009