Silver and Silver - [2009] FamCAFC 248

FAMILY COURT OF AUSTRALIA

SILVER & SILVER

[2009] FamCAFC 248

FAMILY LAW – PRACTICE AND PROCEDURE – APPEAL FROM FAMILY COURT – Not established that trial judge erred in dismissing the wife’s application to institute proceedings in the Canberra Registry of the Family Court –– Appeal dismissed – CDJ v VAJ (1998) 197 CLR 172

Family Law Act 1975 (Cth)

CDJ v VAJ (1998) 197 CLR 172

APPELLANT:

MS SILVER

RESPONDENT:

MR SILVER

FILE NUMBER:

CAC

100

2009

APPEAL NUMBER:

2009

DATE DELIVERED:

3 December 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Boland &
Thackray JJ,

HEARING DATE:

3 December 2009

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

27 February 2009

LOWER COURT MNC:

[2009] FamCA 163

REPRESENTATION

ADVOCATE FOR THE APPLICANT

Ms Silver appeared by telephone

ADVOCATE FOR THE RESPONDENT

No appearance for the respondent

Orders

The appeal is dismissed.
The oral application for leave to adduce further evidence in the appeal is dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EAA 33 of 2009
File Number: CAC 100 of 2009

MS SILVER

Appellant

And

MR SILVER

Respondent

REASONS FOR JUDGMENT

COLEMAN J

By Notice of Appeal filed on 17 March 2009, Ms Silver, (“the wife”), appealed against orders made by the Deputy Chief Justice Faulks on 27 February 2009. The effect of the orders then made was to dismiss an application by the wife seeking leave to institute proceedings in the Canberra Registry of the Family Court.
The applications were identified by the Deputy Chief Justice in his orders as being an application that the respondent, the former husband of the wife, Mr Silver (“the husband”), be dealt with for contempt of court. As his orders (and particularly Order 2), make clear, his Honour dismissed that application “on the basis that there is no cause shown therefore in the material before me”.
His Honour also dismissed, by way of further caution, the applications sought to be made by the wife in the proceedings before him as indicated in her initiating application filed 12 December 2008.
As is clear from the material, that was a reference to an application filed on the date his Honour indicated and amended by amended application filed 20 January 2009. The wife seeks that those orders be set aside and that orders be made by this Court in the terms appearing in her Notice of Appeal.
Some background to the proceedings is instructive for present purposes. Given the longevity of the proceedings and the nature of the course which the proceedings have taken in this Court and in the Supreme Court of the ACT over a period now exceeding three decades that background is regrettably not short or concise.
The wife was born in 1937. The husband was born in 1933. The parties were married in May 1959. The date of their final separation was contentious but in a judgment dated 10 August 1995 the Full Court of the Family Court of this Court considered that 1975 should be regarded as the date of the parties’ final separation. To the extent that anything could possibly turn on that 34 years later, I regard this Court as bound by the judgment of the Full Court in 1995.
The parties had seven children, two of whom were born following the separation of the parties. On 23 December 1975 the wife filed a petition pursuant to the provisions of the Matrimonial Causes Act 1959 (Cth) in the Supreme Court of the ACT. By her petition the wife sought dissolution of her marriage to the husband on the ground of cruelty, together with ancillary relief, including orders for settlement of property and spousal maintenance. Other orders were also sought with respect to the children of the marriage.
The wife’s petition was heard by Connor J in the ACT Supreme Court on 28 July 1976. By that time the Family Law Act 1975 (Cth) (“the Act”) had commenced. That occurred on 5 January 1976. His Honour found the ground under the Matrimonial Causes Act 1959 (Cth) of cruelty relied upon by the wife had been made out, granted a decree nisi for dissolution of marriage, and made a declaration with respect to the children of the marriage pursuant to section 63 of the Act. That decree became absolute on 29 August 1976.
It is perhaps convenient to digress briefly at this point to dispose of a matter which has caused and continues to cause the wife considerable distress. It appears that the wife complains about at least two specific matters with respect to the dissolution of marriage proceedings in the ACT Supreme Court. The first relates to the identity of the husband, as that emerges from documentation issued under the seal of the ACT Supreme Court. The wife’s particular complaint is that, whereas the husband’s name is W L Silver, documents issued under the seal of the Supreme Court of the ACT referred to him as L W Silver.
The record - by which I mean the record appearing in the Appeal Book prepared by the wife - indeed reveals that the husband’s name was said to be L W Silver. In the decree nisi for dissolution of marriage granted by Connor J on 28 July 1976 that misnomer was perpetuated - and again I am referring to the documentation provided by the wife herself - in the certificate of decree nisi having become absolute dated 10 September 1976 and issued under the seal of the ACT Supreme Court Matrimonial Causes Division.
Subsequently, on 28 September 2001, a further certificate, albeit it confirming that the decree nisi pronounced on 28 July 1976 had become absolute on 29 August 1976 continued the misnomer of the husband. That was, on its face, I am satisfied, clearly no more and no less than a clerical error. In her submissions, accurately I perceive, the wife suggested that the ACT Supreme Court had corrected her decree of dissolution of marriage and then uncorrected it. A document also provided as part of her appeal material by the wife indeed records – see Appeal Book pages 25 and 26 – that, pursuant to an order of the Full Court of the Family Court of Australia, the Supreme Court of the ACT amended its records at some time, the date upon which it did so being less than clear, but being obviously subsequent to 1976, the date when the decree became absolute.
The position, in my view, is accordingly that if the document at Appeal Book page 24 is the last certificate to issue from the ACT Supreme Court, that document does perpetuate a clerical error in juxtaposing the Christian names of the husband. On the other hand, if the other document appearing at Appeal Book 25 and 26 is the last document in time, then the clerical error has been corrected. Whatever the truth of the matter, in my view that controversy, if there is anything controversial about it, could only be dealt with by the Supreme Court of the ACT, which clearly is the court which controls the sealing of documents issued by it. If there is a clerical error, I would have thought it would be a simple matter to have it corrected. If there is not, then there is nothing to correct.
The other aspect of the dissolution which appears to continue to cause the wife angst appears to relate to the declaration made by Connor J with respect to the children of the marriage who had not at that time attained 18 years of age. The wife appears not to complain about his Honour granting principal relief on her petition in reliance upon the grounds provided in the Matrimonial Causes Act 1959 (Cth). That was the ground of cruelty. If there be any doubt about it, for my part section 9(1) of the Act removes such doubt, and makes clear that his Honour was entitled, as the section itself says, to proceed with the petition for principal relief as if the Act had not been enacted.
To the extent that his Honour purported to make a declaration with respect to the children of the marriage for the welfare and arrangements for the children of the marriage pursuant to section 63 of the Act, that was a matter which clearly fell within the ambit of the wife’s appeal, heard 24 November 1998 and decided by judgment of the Full Court of 10 June 1999 against orders made by Bell J on 12 January 1998.
In other words, subject to the unlikely granting of special leave to appeal a decade out of time, the issue having been disposed of by the Full Court by its judgment of 10 June 1999, no aspect of what might broadly be described as the declaration with respect to the welfare of the children of the marriage could have enlivened the jurisdiction of the learned Deputy Chief Justice in February of this year.
Returning then to the background narrative, on 28 October 1993, the wife moved the Supreme Court of the ACT for a finalisation of property settlement rights between herself and her husband. Amongst the ancillary orders made by Connor J on 28 July 1976 was a notation (see paragraph 5) reserving questions of settlement of property. The notice of motion seeking to finalise property settlement rights as between the parties came before Higgins J, as the learned Chief Justice of the ACT then was, on 29 November 1993. His Honour ordered that the proceedings be transferred to and continued in the Family Court of Australia.
The wife filed an application for settlement of property in the Family Court on 5 January 1994. By that time the wife, correctly or otherwise, was advised that she should seek leave under section 44 of the Act to apply. Whether she needed such leave or not is not a matter which this Court, I think, should or needs to contemplate. The application for property settlement came before the late Justice Treyvaud on 5 July 1994. His Honour heard the application for leave and, I would have thought, with respect, correctly concluded that the wife did not need 44(3) leave, given that she had sought substantive relief with respect to property in the petition which came before the ACT Supreme Court some 18 years earlier, and was the subject of the notation to which I have earlier referred.
His Honour dealt with the wife’s substantive application and awarded her a sum of $30,000. The wife appealed against that order, ultimately, as the orders of 10 August 1995 by the Full Court reveal, successfully. In effect, their Honour’s orders provided in lieu of those of the trial judge that the wife be paid a further $70,000.
In the interim, on 28 October 1994 the wife sought to file a notice of motion in the Supreme Court of the ACT with respect to matters of property settlement. Miles CJ concluded that the court lacked jurisdiction to entertain the matter as a result of the transfer of proceedings, by virtue of section 40(3) of the Act it then provided. His Honour made a further order precluding the wife from filing further applications in the ACT Supreme Court without the prior leave of the court. The wife’s appeals against Miles CJ’s orders were dismissed on a date that is not readily apparent to me, and is of no moment in any event, by the Full Court of the Supreme Court of the ACT.
To return to the narrative of proceedings in this Court, the wife sought special leave to appeal to the High Court against the orders made by the Full Court on 10 August 1995. They were the orders which provided that the wife receive an additional $70,000 over and above that ordered by the late Treyvaud J in 1994. The High Court dismissed the wife’s application.
The wife then sought leave to issue what, I imagine, were in the nature of prerogative writs as they were once known against Dawson, Gaudron and Gummow JJ. Brennan CJ dismissed that application on 6 May 1996.
The wife returned to the ACT Supreme Court on 16 January 1997. She there filed a notice of motion seeking that the court determine her property settlement entitlements under the Matrimonial Causes Act 1959 (Cth). On 7 February 1997 Miles CJ directed that the notice of motion not be accepted.
The wife appealed that decision. The Full Court of the Supreme Court of the ACT dismissed that appeal in June 1997. The High Court, in November 1997, dismissed an application for special leave to appeal against the outcome of the last mentioned proceedings.
The wife then, on 9 December 1997, filed applications in this Court seeking various orders for settlement of property. I incorporate paragraphs 1 to 6 inclusive of the wife’s Form 8 Application in these reasons for judgment:
1. That the Court execute the order made by Higgins J in the Supreme Court of the ACT - “That these proceedings be transferred and continued in the Family Court of Australia an (sic) further ordered the the (sic) File be referred to the Family Court Registry with a recommendation that the matter be dealt with as expeditiously as possible.” Attached hereto is a copy of the Order of Higgins J made 12 November 1993.
2. That the Court determine the Jurisdiction reguarding (sic) the enforcement of a Decree Nisi Dissolution of Marriage made under the Matrimonial Causes Act 1959 (Cth) on Cruelty. If no Jurisdiction Transfer back to Supreme Court of the ACT. s 105.3 & Or 31 r7 provide (other than Decree for principal relief.)
3. That the Court order the proceedings be transferred back to the Supreme court to amend the slips and omissions in the Decree Nisi of Dissolution of Marriage and the Certificate of Decree Nisi having become Absolute and execute Judgments pursuant to section 46(3) of the Family Law Act. And also to dispose of the Marriage.
4. That the Court order the ‘referred’ Supreme Court File back to the Supreme Court of the ACT.
5. That the Applicate (sic) seeks Highway monies, and that the respondent produce evidence of payment in full.
6. That the Respondent pay the Applicants cost’s as ordered in the Decree Nisi of the Supreme Court.
I also incorporate paragraphs 1 to 9 inclusive of the wife’s Form 7 Application:
1.        That the Court continue the Order of Higgins transferred by him to      be continued in the Family Court, made 1993. (Attached hereto)
2.        That the Court determine Jurisdiction.
3.        That the Court determine ownership of properties in dispute.
4.That the Court obtain Reserved Judgement made and delivered by Connor J, withheld by the Supreme Court of the ACT.
5.That the Court make the Decree Nisi of Dissolution Marriage Absolute to dispose of the Marriage.
6.That the Court enforce the Decree Nisi made under Matrimonial Causes Act and the Reseved (sic) Judgement for settlement of Property made by the Supreme Court.
7.That the Applicant seeks Highway monies, and produce evidence of payment in full.
8.        That the Court exclude third parties property.
9.That the Respondent pay the Cost’s as oordered (sic) in the Decree Nisi of the Supreme Court.

Those applications were heard by Bell J of the Family Court on 12 January 1998. His Honour dismissed the applications. The wife’s appeal against his Honour’s orders has been referred to earlier in these reasons. The appeal against his Honour’s orders was dismissed.
On 6 February 1998, the wife filed an application in the Supreme Court of the ACT seeking a prerogative write against Miles CJ. The wife filed a further application in the ACT Supreme Court on 3 March 1999 seeking writs against the registrar and the sheriff. Those applications were dismissed by Paul Finn J of the Federal Court sitting as a judge of the Supreme Court of the ACT on 16 October 1998.
On 9 and 16 April 1998, the wife filed further applications. In the former, the wife sought orders with respect to a property, W, at M. In the second application, the wife asserted an error in the judgment of the Full Court of 10 August 1995, and sought that the husband pay 40 per cent of the total value of insurance policies and investments and other orders. Those applications came before Faulks J, as the Deputy Chief Justice then was, on 12 May 1998 and were dismissed at the conclusion of the hearing. There does not appear to have been any appeal against his Honour’s orders.
On 16 November 1998, the wife filed an application in the Family Court for substantive relief under Part VIII of the Act with respect to a home and a business and an interest in leased land.
On 20 November 1998, the wife filed an application for dissolution of marriage in the Family Court.
On 27 November 1998, the wife filed an application in the Family Court seeking that the husband be dealt with for alleged breaches of orders made on 23 March 1997.
On 27 November 1998, the wife also filed in the Family Court an enforcement summons with respect to the order for maintenance made by Connor J in the Supreme Court of the ACT on 28 July 1976. Faulks J heard that application on 15 February 1999 and ordered the husband to pay arrears of maintenance. His Honour’s order was amended pursuant to the rules in a clerical respect on 25 February 1999. The wife appealed against those orders.
On 25 February 1999, an appeal to the Full Court of the Federal Court of the ACT against the orders of Paul Finn J to which I have earlier referred was dismissed and the wife’s application for prerogative writs was concluded to constitute an abuse of process of that court.
On 4 March 1999, the wife filed an application for final orders seeking a sale and division of the property at M. On 21 September 1999 the Full Court dismissed the wife’s appeal against the orders made by Faulks J on 15 February 1999 as varied by his Honour on 25 February 1999.
On 19 November 1999, the wife filed an application in the High Court seeking prerogative writs against Miles CJ and other writs against the sheriff of the Supreme Court of the ACT. The High Court dismissed such application.
On 3 November 1999 the husband filed an application in which he sought a stay of any proceedings commenced by the wife and a response to proceedings commenced by the wife in which he sought a variation of periodic spousal maintenance.
On 30 November 1999, Faulks J made orders in the terms sought by the husband, including the order preventing the wife from instituting further proceedings without prior leave of the court. The wife appealed against those orders.
The appeal came before the Full Court on 30 November 2000. There was then no appearance on behalf of the wife or the husband and the Full Court dismissed the appeal.
On 5 September 2000, Faulks J refused an application by the wife to institute proceedings with respect to settlement of property.
On 27 June 2001, the wife filed an application seeking orders with respect to orders said to have been made in the Family Court in the transferred Supreme Court proceedings. The relief was sought pursuant to section 79A of the Act and related to the orders for settlement of property. Inferentially, those were the orders made by the late Treyvaud J in 1994 as varied by the Full Court in August 1995 and, by their refusal to grant special leave, not subsequently disturbed by the judges of the High Court.
On 30 July 2001, there was a procedural hearing with respect to part of the relief sought by the wife. Finn J’s judgment recording that the dismissal, for want of prosecution of the wife’s application, did not preclude her, the matter having not been agitated on the merits from renewing her application.
A further application seeking orders for settlement of property was filed by the wife on 26 November 2001. Faulks J dismissed that application on 29 November 2001.
On 25 February 2004, the wife filed an application seeking leave to file an application to the Full Court of the Family Court to continue Supreme Court proceedings, which were identified as those commenced in the ACT Supreme Court and, as noted earlier, transferred many years before to the Family Court by Higgins J. That application came before the Full Court on 3 May 2004. It was dismissed by the Full Court at that time.

Subsequently, there came before O’Ryan J an application by the wife which, as his Honour’s reasons for judgment recorded, was not entirely clear in terms of what it sought but which, as his Honour made clear, related to what could broadly be described as matters of property settlement. For reasons which O’Ryan J published on 27 October 2004, that application was dismissed. There has been no appeal against that decision.
As indicated earlier, the application which Faulks DCJ dismissed on 27 February 2009 sought a variety of orders. I incorporate the Notice of Child Abuse or Family Violence, filed by the wife on 20 January 2009 in these Reasons for Judgment:
The offence of habitual cruelty was proven against the respondent [Mr Silver] 28 July 76 in the Supreme Court – No penalty at entry point because of his wrong name. No record of his offence. Family Court ‘abolished’ cruelty and changed it to “choose to live apart”, cruelty worsened! The Family Court is holding up the Divorce (his penalty) and prolonging the cruelty.
The Family Court denied ‘cruelty’ abolishing the reason and the ground to dissolve the marriage to end the cruelty, denying applicant her right to a divorce, under the constitution.
Cruelty was found against him 32 years ago and we are still suffering his violence through not ending the marriage.
Hospitalization, burning down houses constant attacks must be stopped by “reinstating” the cruelty finding and his penalty, a divorce granted by maintaining the same man in the proceedings and the same ground “habitual cruelty”.
The Supreme Court uncorrected the decree absolute, (denying the divorce) after the Family Court ordered it to be corrected.
The Family Court did not ‘continue’ as ordered to give the remedy divorce to stop the cruelty before he kills us.
[Mr Silver] was proven guilty of “habitual cruelty” in the Supreme Court Act family violence continued – No penalty. He has threatened to kill and attempted to kill both myself and the adult children of the marriage.
He kills our animals. He said he will kill to defeat the divorce and the claim in the Supreme Court. He must be charged for the crime he was found guilty of.
With respect to the wife, to read those paragraphs is to understand why Faulks DCJ ordered as he did, and to provide a reasonable basis for apprehending how this Court, in my view, would also conclude.
The reasons for judgment of the learned Deputy Chief Justice were, with respect, understandably brief. I refer briefly to those brief reasons.
His Honour recorded that the wife sought an order from the court that this Court continue in accordance with an order made by the ACT Supreme Court with respect to the finalisation of proceedings between the husband and the wife. His Honour concluded that the evidence before him suggested that the Family Court did, in fact, complete that continuation and that there was no current matter before the court. His Honour reasoned logically, it must be acknowledged, that if there was no current matter before the court, giving leave to continue proceedings would be nothing short of an abuse of process. It would serve no purpose.
Nothing to which the wife has referred this Court persuades me that his Honour was in error in concluding, as he did, that there was no current matter before the Family Court. I suggest that because the matters relating to dissolution of the marriage of the husband and wife had been concluded in the ACT Supreme Court, and to the extent that they were agitated in the Family Court, by orders of the Full Court there remained nothing to continue or complete with respect to principal relief. To the extent that any parenting matters may have been continuing, there is no evidence that such was or could have been the case. At the time of Faulks DCJ’s orders, the youngest child of the marriage of the parties was approaching her 33rd birthday.
So far as matters of child maintenance are concerned, there is nothing to indicate that there were or could have been proceedings with respect to child maintenance capable of being continued in the Family Court. Nor, given the orders made and undisturbed on appeal with respect to spousal maintenance was there anything which was capable of continuation with respect to spousal maintenance.
So far as matters of settlement of property were concerned, the evidence suggests to me beyond reasonable doubt that there was nothing capable of being continued in the Family Court. There had been a Part VIII determination by Treyvaud J some 14 or more years earlier. His Honour’s decision had been successfully challenged as the judgment of the Full Court of August 1995 confirms. The wife herself had unsuccessfully sought, pursuant to section 79A, to vary those orders. It might be, I think, not unreasonably inferred that to bring a section 79A application was itself an acknowledgement that there had been final orders for settlement of property.
There is simply nothing to which the wife referred the learned Deputy Chief Justice or has referred this Court which, in my view, was capable of constituting a matrimonial cause within the jurisdictional competence of the Family Court.
The learned Deputy Chief Justice then referred to a notice of abuse which the record reveals the wife filed on the same date as she filed her amended application, 20 January 2009. His Honour’s observations, see paragraph 3, have not, in my view, been shown to have been other than accurate. I should say that, with respect to her, I think the wife perhaps labours under the mistaken belief that a finding of cruelty, as undoubtedly was made in 1976, did not then and does not now translate into an offence.
To the extent that there is, however, any evidence of domestic violence of abuse, those are matters which fall within the jurisdictional competence of courts exercising the criminal law and are matters which, if the wife has grounds for complaint or believes that she has grounds for complaint, are matters that she ought agitate with the appropriate State or Federal Police. They are not matters which, in my view, were capable of enlivening the jurisdiction of the Family Court.
His Honour then referred to the decree absolute. His Honour concluded on the material before him that the wife had not demonstrated that the court had failed to carry out whatever was necessary to ensure that the decree absolute was appropriately recorded. With respect to the wife, the material which she herself has put in the Appeal Books provides not only an absence of evidence that his Honour was in error but, with respect to her, confirms that his Honour was absolutely correct in what he recorded. Without reiterating it in detail, if there is an error on the face of the record of the Supreme Court of the ACT in erroneously juxtaposing the Christian names of the husband on the decrees which have issued out of that court, those are clerical matters which that court has, in my view, at the very least inherent power to correct. The Family Court has similar powers in relation to decrees of another court.
His Honour then proceeded to (paragraph 6) deal further with files. His Honour recorded his conclusions in that regard in paragraph 6. Nothing to which the wife has referred this Court, in my view, begins to establish error on the part of his Honour if, which may or may not be the case, error is asserted.
The learned Deputy Chief Justice, albeit perhaps more succinctly than I have endeavoured to, at paragraph 7 of his judgment, dealt with the matter of cruelty agitated by the wife. His Honour developed that theme in paragraph 8 of his judgment. Nothing to which his Honour was referred or to which we have been referred, in my view, establishes that his Honour erred in anything which he concluded or ordered in February of this year. Quite simply, there was no matrimonial cause which the wife could have instituted in the Family Court. The court’s jurisdiction to entertain any possible matrimonial cause arising out of the marital relationship of the husband and wife had, on the material before his Honour and before this Court, been exhausted long before.
In circumstances where the jurisdiction of the court cannot be validly enlivened, to grant a party leave to commence an application is to countenance an abuse of process. The learned Deputy Chief Justice declined to do that and, in my view, not only did he not err thereby but, with respect to him, reached the only sensible conclusion reasonably open to him.
For those reasons I would not allow the wife’s appeal.
It remains, however, to consider the affidavit which, for my part, I treat as an affidavit, although not so styled or formally sought to be put before the court, by way of further evidence in the appeal pursuant to section 93A of the Act.
The affidavit of Ms T Silver, the daughter of the parties to the marriage, was sworn 2 December 2009. I incorporate the affidavit to the extent necessary into my Reasons for Judgment without reading onto the record the contents of them, in the interests of sensitivity to the deponent of the affidavit, who I apprehend may be present with the wife at this moment.
In short, to the extent that anything there raised would be capable of impacting upon a matrimonial cause within the jurisdictional competence of this Court, those matters, if accepted, could not now demonstrate appealable error where none has previously been established. To the extent that the matters are not capable, as with respect most of them, in my view, are not, of having any relevance to or admissibility in a matrimonial cause which may have been commenced or has been commenced and concluded, they are matters which, if the allegations of fact asserted by Ms Silver are correct, may give rise to causes of action in other courts but not in the Family Court. They may give rise to civil or criminal liability on the part of persons named and unnamed in the affidavit. They are not, however, matters which fall within the jurisdictional competence of the Family Court.
Applying the ratio of the majority in CDJ v VAJ (1998) 197 CLR 172 in the High Court, I am not persuaded that, if accepted, the contents of the further evidence would demonstrate appealable error with respect to the judgment of the Deputy Chief Justice.
For those reasons I would dismiss the appeal and to the extent that there is an application for leave to adduce further evidence, I would dismiss that application.

BOLAND J

I agree with the reasons given by the presiding Judge. I, too, would dismiss the appeal. I would also, to the extent that the affidavit to which he has referred is to be treated as an application to adduce further evidence, dismiss that application.
I would just like to make a brief comment. In reciting the chronology in this matter, the presiding Judge diverted to refer to the wife’s complaints about the decree absolute. They were twofold. First, she asserted that there was an error in referring to section 63 of the Act and, secondly, that the husband’s given names had been reversed on the decree.
Those issues were dealt with by the Full Court of this Court, comprised of Lindenmayer, Holden and Mullane JJ in their very comprehensive reasons for judgment of 10 June 1999.
At paragraph 25 their Honours explained the circumstances which pertained from the date of the filing of the decree and then the matter being heard by Connor J in the ACT Supreme Court. They said:
25.Mrs [Silver’s] application for dissolution and ancillary relief was filed prior to the commencement of the Family Law Act 1975 but came on for hearing after the commencement of that Act on 5 January 1976. The proceedings were able to be continued by virtue of s 9 of the Family Law Act 1975 which at the commencement of the Act, in 1975, provided, relevantly:
9.(1) Subject to sub-section (2), pending proceedings for a decree of dissolution of marriage or for a decree of nullity of marriage on the ground that the marriage is voidable, and pending proceedings for a separation order, may be continued and shall be dealt with as if this Act had not been passed.
(2)Where the parties have lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the commencement of this Act, pending proceedings for a decree of dissolution of marriage shall, if the applicant so requests, be dealt with as if they were proceedings instituted under this Act on the ground referred to in section 48, and, in relation to proceedings in which such a request is made, sub-section 48(2) has effect as if the proceedings for dissolution of marriage had been instituted by an application filed on the date of the commencement of this Act.
(4)Pending proceedings constituting a matrimonial cause, not being proceedings for principal relief, whether instituted under the repealed Act or under the law of a State or Territory, may be continued and shall be dealt with as if they were proceedings instituted under this Act.
(8)The law to be applied, and the practice and the procedure to be followed, in and in relation to pending proceedings that are continued as if this Act had not been passed shall be the same as if this Act had not been passed.”
Their Honours also went on in paragraph 28, and said:
Thus it is clear, although the dissolution proceedings were, by virtue of s.9(1) being continued and dealt with under the then repealed Matrimonial Causes Act 1959, as the decree nisi was made after the date of commencement of sub.-s.9(7A)of the Family Law Act 1975, the relevant section for the making of an order declaring the Court’s satisfaction with the arrangements for the welfare of the children of the marriage was s.63 of the Family Law Act, rather than the (almost identical) s.71 of the Matrimonial Causes Act.
I also refer to paragraph 30 of their Honours’ reasons where they record that his Honour (Connor J) was correct in finding proper arrangements had been made for the children. They then say the decree having been absolute and issued by the Supreme Court also correctly recorded the declaration under section 63.
At paragraph 34 their Honours referred to the wife’s contention that the Family Court had no power to correct the Supreme Court’s decree and, therefore, the matter should be transferred to the Supreme Court. Their Honours went on and said:
Pursuant to section 3(2) (c)(ii) of the Act, the decree nisi and decree absolute continue to have effect as if made under the Act. Therefore, the error is able to be amended pursuant to the slip rule contained in the Family Law Rules.
Order 2 of their Honours’ orders was in the following terms:
That the Registrar of the Family Court of Australia at Canberra be and is hereby directed to amend the decree nisi and the memorandum of decree becoming absolute by showing the husband’s correct name to be [W L Silver].
As appears in the wife’s own documents filed in this matter, that has occurred and I am satisfied, therefore, that the complaints that have been raised in relation to the decree nisi and decree absolute, although not directly relevant to this appeal, have been fully addressed by the Full Court of this Court.

THACKRAY J

I concur with the reasons given by the presiding Judge. I would also dismiss the appeal and if there is such an application dismiss it for the introduction of further evidence.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 22 December 2009