Slater v Slater - [2001] FCA 694

FEDERAL COURT OF AUSTRALIA
Slater v Slater [2001] FCA 694
PROCEDURE – proceeding instituted under Matrimonial Causes Act 1959 prior to Family Law Act 1975– decree nisi for dissolution of marriage – errors in entry – decree absolute – error in certification - validity of decree absolute – issues previously determined by Full Courts of the Family Court and the Federal Court – appeal dismissed
PRACTICE & PROCEDURE - Supreme Court order that no further application be filed in the matrimonial cause without order of a judge – order refusing leave to file further documents - denial of procedural fairness – application for leave to appeal - no appealable error shown – leave to appeal refused
FAMILY LAW – validity of Supreme Court order transferring proceeding to Family Court –whether application for property settlement be dealt with as if instituted under Family Law Act – property issues conclusively determined by the Family Court – other issues determined by Full Courts of the Family Court and the Federal Court - notice of motion in the Federal Court seeking to reagitate property issues – motion refused
Family Law Act 1975 (Cth), ss 9, 31(1), 45, 63
Slater v Slater (unreported, Full Court of the Family Court, Lindenmayer, Holden & Mullane JJ, 10 June 1999), referred to
Slater v The Honourable Jeffrey Allan Miles [1999] FCA 185, referred to
Slater v Slater [1997] FCA 1592, referred to
Slater v The Honourable Terence John Higgins [2001] FCA 549, referred to
McLeod v McLeod (1976) 24 FLR 399, distinguished
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, cited
MERRILEE MARGARET SLATER v WALTER LAURENCE SLATER & ANOR
A 62 of 2000
MERRILEE MARGARET SLATER v WALTER LAURENCE SLATER & ANOR
A 78 of 2000
WHITLAM, MADGWICK & KENNY JJ
12 JUNE 2001
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A 62 of 2000
A 78 of 2000

A 62 OF 2000:

BETWEEN:

MERRILEE MARGARET SLATER
Appellant

AND:

WALTER LAURENCE SLATER
First Respondent

LAURENCE WALTER SLATER
Second Respondent

A 78 OF 2000:

BETWEEN:

MERRILEE MARGARET SLATER
Applicant

AND:

WALTER LAURENCE SLATER
First Respondent

LAURENCE WALTER SLATER
Second Respondent

JUDGES:

WHITLAM, MADGWICK & KENNY JJ

DATE OF ORDER:

16 MAY 2001

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:
1.   The appeal in matter A 62 of 2000 is dismissed.
2.   The motion, notice of which is dated 7 May 2001, is refused.
3.   Leave to appeal from the judgment of Higgins J given on 17 November 2000 is refused.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A 62 of 2000
A 78 of 2000

A 62 OF 2000:

BETWEEN:

MERRILEE MARGARET SLATER
Appellant

AND:

WALTER LAURENCE SLATER
First Respondent

LAURENCE WALTER SLATER
Second Respondent

A 78 OF 2000:

BETWEEN:

MERRILEE MARGARET SLATER
Applicant

AND:

WALTER LAURENCE SLATER
First Respondent

LAURENCE WALTER SLATER

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Slater v Slater

Details

AGLC: Slater v Slater [2001] FCA 694
Case: [2001] FCA 694
Decision Date: 16 MAY 2001

CaseChat Overview and Summary

In the case of Slater v Slater, the dispute between the parties, Mr and Mrs Slater, pertains to the interpretation and execution of a property settlement agreement that was intended to be made following a hearing before Connor J in 1976. Mrs Slater alleged that a reserved judgment for the settlement of their matrimonial property existed, which was allegedly seen by her but subsequently removed from her possession. This case reached the Family Court of Australia, where various judges had previously dismissed Mrs Slater's claims regarding the existence of such a judgment.

The primary legal issue the court had to address was whether a reserved judgment or order for property settlement existed and could be enforced, as Mrs Slater contended. The court needed to determine whether the assertions made by Mrs Slater were substantiated by the facts and whether the previous judges' decisions dismissing her claims were correct.

The court found that the assertions made by Mrs Slater were without merit. The evidence, particularly the transcript of the hearing before Connor J, indicated that the property settlement questions were indeed held over for a later date, as requested by Mrs Slater's counsel. The court concluded that no such reserved judgment or undisclosed order existed since Connor J had not heard any evidence or submissions on the property issues. This finding aligns with previous decisions dismissing Mrs Slater's claims. Therefore, the court dismissed the appeal and refused the motion, upholding the judgment of Higgins J.

In summary, the appeal was dismissed, and the motion was refused. Additionally, leave to appeal from the judgment of Higgins J was denied.

Orders

Orders of the court

1. The appeal in matter A 62 of 2000 is dismissed.

2. The motion, notice of which is dated 7 May 2001, is refused.

3. Leave to appeal from the judgment of Higgins J given on 17 November 2000 is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As counsel for Mrs Slater sought to make clear at the hearing before Connor J on 28 July 1976, his Honour was not being asked to make any orders with respect to the matrimonial property of Mr and Mrs Slater. Counsel indicated that the property questions were to be considered at a later date, and his Honour did not hear any evidence or receive any submissions on those matters. In keeping with this, his Honour simply “reserved”, or held over, “the questions of settlement of property” for hearing and determination to a later time. His Honour could not have “reserved” or “held over” his decision on property issues, as Mrs Slater has come to believe, because he had not heard the parties on the property questions at the time he concluded his hearing on 28 July 1976. A Full Court of the Family Court reached the same view in Slater v Slater (unreported, Full Court of the Family Court, Lindenmayer, Holden & Mullane JJ, 10 June 1999) at [53]. No further step was taken in MC 600 of 1975 until 1993. On 28 October 1993, Mrs Slater filed a notice of motion in the Supreme Court, seeking orders for the finalisation of the property settlement questions that had been held over by Connor J in 1976. On 29 November 1993, Higgins J transferred the proceeding in MC 600 of 1975 to the Family Court of Australia. At the hearing in this Court, Mrs Slater asserted that prior to the order for transfer of the proceedings made by Higgins J on 29 November 1993, there was in existence “a reserved judgment, undisclosed, unexecuted order for property settlement arising from a reserved judgment”. In argument, she said:“I have seen the reserved judgment … . It was snatched off me in the Supreme Court. I read enough of it to tell you exactly what is in it. The husband was to transfer his interest, right title and interest in – it was called Burndong I think then, the home at Burndong, Murrumbateman, to the wife. And in return I was to sign over the interests – my interests in the business. Well, that never came about. I have seen that reserved judgment even though nobody believed me. I have seen it. It was handed to me in a small file by itself, I would say purely accidentally, and the chief clerk came up and snatched it off me.” As the transcript of the hearing before Connor J on 28 July 1976 makes plain, however, his Honour was asked by counsel for Mrs Slater to hold over the questions of settlement of property to a later date, and that is what his Honour plainly did. Indeed, his Honour could not have done anything else, since he had not heard any evidence or submissions from the parties on the subject. We do not know what it is that Mrs Slater was shown, if she was shown anything at all, but it cannot have been a decision relating to her matrimonial property. This is not the first time that Mrs Slater has made an allegation of this kind in Court. It appears that the same submission was considered and rejected by Treyvaud J on 5 July 1994, by Bell J on 12 January 1998, and by the Full Court of this Court in Slater v The Honourable Jeffrey Allan Miles on 25 February 1999: see [1999] FCA 185 at [27].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

BETWEEN:	MERRILEE MARGARET SLATER Appellant
AND:	WALTER LAURENCE SLATER First Respondent
LAURENCE WALTER SLATER Second Respondent

BETWEEN:	MERRILEE MARGARET SLATER Applicant
AND:	WALTER LAURENCE SLATER First Respondent
LAURENCE WALTER SLATER Second Respondent

BETWEEN:	MERRILEE MARGARET SLATER Appellant
AND:	WALTER LAURENCE SLATER First Respondent
LAURENCE WALTER SLATER Second Respondent

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 62 of 2000 A 78 of 2000

JUDGES:	WHITLAM, MADGWICK & KENNY JJ
DATE OF ORDER:	16 MAY 2001
WHERE MADE:	CANBERRA