Slater v Slater
[2000] FCA 1943
•21 NOVEMBER 2000
FEDERAL COURT OF AUSTRALIA
Slater v Slater [2000] FCA 1943
MERRILEE MARGARET SLATER v WALTER LAURENCE SLATER
A 62 OF 2000
EINFELD J
CANBERRA
21 NOVEMBER 2000
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPTIAL TERRITORY
DISTRICT REGISTRY
A 62 OF 2000
BETWEEN:
MERRILEE MARGARET SLATER
ApplicantAND:
WALTER LAURENCE SLATER
Respondent
JUDGE:
EINFELD J
DATE:
21 NOVEMBER 2000
PLACE:
CANBERRA
REASONS FOR JUDGMENT
By application dated 5 September 2000, Merrilee Margaret Slater seeks an extension of time to file a notice of appeal from a judgment of the Supreme Court of the Australian Capital Territory given on 28 July 1976. The judgment was in divorce proceedings between Mrs Slater and her former husband, in which the Supreme Court pronounced a decree nisi. So far as appears from the file, and Mrs Slater informs me that she has searched all relevant files, no decree absolute has surfaced.
The papers, including some transcript of an appeal to the High Court of Australia during the course of one or more of the multiple proceedings in this matter, appear to show that the reason why a decree absolute may not have issued is that no arrangements were made for the welfare and wellbeing of the several children of the Slaters’ marriage. The children are, of course, now all grown up and the question of maintenance or other arrangements is no longer relevant. But it seems that the failure to enter into such arrangements or to submit them to the Court was or may have been one factor in the circumstance that no decree absolute has issued.
The consequence from Mrs Slater's point of view is that she claims never to have been divorced, and, after all these years she wants a clarification of her position, preferably in favour of a divorce. A second and subsidiary issue in this case is her allegation that in the original proceedings, her former husband was wrongly named in that there was a reversal of the order of his given names.
She has been through a very large number of proceedings in the ACT Supreme Court, in the Family Court, in the High Court, and perhaps elsewhere as well, which have eventually resulted in the present application. Mrs Slater applied to the Family Court for a decree of divorce but was refused and she has made various claims to the Supreme Court to change the record and to achieve other relief which would result in a decree absolute being pronounced or issued.
There is a difficulty with the present proposed appeal. If the Supreme Court of the ACT was wrong on 28 July 1976 in pronouncing a decree nisi, it seems very unlikely that a Court would entertain the possibility of overturning the judgment given then. This is because some 25 years have passed in the meantime, all the circumstances have changed, the parties have been living apart, and the children have grown up. In fact, the parties have to all intents and purposes been in fact if not in law divorced.
Indeed, Mrs Slater does not seek the reversal of the decree nisi. What she seeks is that the decree nisi be pronounced against her husband properly named and that that decree become absolute. She informs me that both the Family Court and the ACT Supreme Court have made orders the effect of which is that she cannot file any further applications within those Courts without the leave of the Court, and on occasion such leave has been refused. If the facts which she alleges are correct, it does seem that there is a need for some additional orders to those made by the Supreme Court on 28 July 1976. Whether this Court has the power to make such an order is at best doubtful.
For myself, I cannot see what orders can now be made. As I recall it, the relevant legislation at the time did make some provision for pronouncing a decree absolute immediately upon the making of a decree nisi, but if in fact suitable arrangements were not made for the welfare of the children, that might not have been possible. There may now be some way in which a Full Court of this Court can attend to those difficulties. There is no appearance by or for the respondent and there is therefore no opposition to the application for an extension of time. I think that if there is any form of arguable relief available Mrs Slater should be given the opportunity of advocating for it.
I should add that she has explained the gigantic gap of 25 years before making this application on the grounds that she was not aware for some time that a decree absolute had not issued and did not at all understand that this application might be available to her to right the wrongs which she says have existed over the intervening period. As I see it, that seems like, on the face of it, a reasonable explanation for not having brought the application before now. On the other hand, the length of time itself should impose a higher level of requirement that some arguable case be identified.
If Mrs Slater was legally represented, the Court would undoubtedly require the lawyer concerned to mount a case that was significantly arguable, rather than just in the wings, as it were. However, as she represents herself and appears to be caught in an unusual situation brought about by the fact that she appears to have been divorced under the old Matrimonial Causes Act with transitional provisions which kept the jurisdiction in respect of her matter in the Supreme Court rather than the Family Court. Those circumstances appear to me to justify granting the extension of time, notwithstanding the enormity of the period of time which has passed since the order made. I grant the order sought.
So far as concerns the wrong naming of her husband, Mrs Slater drew my attention to the fact that she recently sought leave of the Supreme Court to seek an amendment of the decree so as to correctly state her former husband's name. This matter, on the face of it quite trivial and unlikely to justify an appeal, seems to concern Mrs Slater greatly. It may be remediable by way of an amendment of the record. There must be some doubt that the Federal Court can grant any such remedy, but as the judgment in relation to this matter was given by the Supreme Court of the Territory, it may be that a Full Court of this Court can put itself in the position of that Court and make appropriate remedial orders. If it stood alone, I would not grant leave to extend time but as the decree absolute matter is to go forward, this matter can also be included. I therefore extend the time to file and serve a Notice of Appeal to raise this matter as well. The Notice of Appeal raising both matters is to be filed and served by not later than Friday, 8 December 2000.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO. Associate:
Dated: 21 November 2000
The Applicant appeared in person There was no appearance for the Respondent Date of Hearing: 21 November 2000 Date of Judgment: 21 November 2000 SUBSEQUENT OBSERVATION
Since the giving of this judgment, the Registrar has located what appears to be a decree absolute for this marriage dated 10 September 1976 certifying that the decree nisi made on 28 July 1976, said to be accompanied by an order under section 63 of the Family Law Act, became absolute on 29 August 1976. As I imagine that I am now functus officio, I can do no more than record this subsequent observation and attach the document referred to.
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