Alldrice and Masters
[2012] FMCAfam 914
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ALLDRICE & MASTERS | [2012] FMCAfam 914 |
| FAMILY LAW – Divorce proceedings – no marriage certificate – some assertion that there was no valid marriage. |
| Family Law Act 1975, s.55A |
| Applicant: | MR ALLDRICE |
| Respondent: | MS MASTERS |
| File Number: | PAC 2197 of 2012 |
| Judgment of: | Harman FM |
| Hearing date: | 22 August 2012 |
| Date of Last Submission: | 22 August 2012 |
| Delivered at: | Parramatta |
| Delivered on: | 22 August 2012 |
REPRESENTATION
| Applicant: | In person |
| Respondent: | No Appearance |
ORDERS
Divorce granted.
IT IS NOTED that publication of this judgment under the pseudonym Alldrice & Masters is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2197 of 2012
| MR ALLDRICE |
Applicant
And
| MS MASTERS |
Respondent
REASONS FOR JUDGMENT
These proceedings are commenced by way of Application for Divorce filed 23 May 2012.
The Applicant in the divorce is the putative husband, Mr Alldrice.
The Respondent to the proceedings is Ms Masters.
The Application came before a Sessional Registrar on 9 July 2012. The proceedings were adjourned to 6 August 2012 as the Registrar held some concerns as to arrangements for the children which arrangements must be considered pursuant to section 55A.
On 6 August 2012 the Sessional Registrar viewed a document received by the Court by fax and purportedly from the putative wife. The document is in the form of a letter dated 20 June 2012 and attaching thereto a document headed “Response to Mr Alldrice for Divorrce [sic]”. The document was unsigned and not otherwise affirmed or sworn. The Registrar took the view, based upon receipt of the document, that the divorce was no longer uncontested and thus was outside of the delegated exercise of jurisdiction by a Registrar.
It is noteworthy that the Respondent did not appear on 9 July 2012 or 6 August 2012 and has not appeared today. No application for leave to appear by telephone has been received. The Registrar would have been entitled to disregard the document in those circumstances but, to her credit, sought to afford to the Respondent an opportunity to place material, in proper form, before the Court. In those circumstances the Registrar, considering the proceedings contested and thus lacking jurisdiction, adjourned the proceedings to this list for determination.
The document that is provided by the Respondent does not comply with the Courts rules. However, that is not a matter of great significance and noting that each of these parties are self represented and each comes from a background wherein English is not their first language.
The Court might have been prepared, if there had been any appearance to prosecute a Response in the proceedings today, to exercise some flexibility and informality as required by the Federal Magistrates Court Act and Rules and may have been prepared to treat that document as a Response subject to its adoption under oath. However, the Court does not conduct proceedings based on correspondence but upon Applications and Responses properly before it and based upon evidence, sworn or affirmed, which is filed and served.
Following the adjournment of the proceedings to this list, correspondence was forwarded by the Court to each of the parties. Correspondence was forwarded to Ms Masters by ordinary prepaid post on 6 August 2012. That correspondence was forwarded to the address that was identified and affixed to the correspondence to which I have referred. That correspondence has not been returned to the Court and on the basis that the address purports to be provided by the Respondent one can assume that it is correct and thus the Court’s correspondence has been received by the Respondent.
On the basis that the matter is listed today for defended hearing it would appear, absent the Respondent’s appearance, that the matter is undefended. For proceedings to be defended there must be not only a Response (which strictly, in these proceedings, there is not) but that Response must be actively prosecuted. The Court need not have regard to any material filed by a Respondent if there is no appearance nor any active attempt to prosecute the Response.
For the sake of abundant caution I do propose to make some reference to that which has been forwarded to the Court by the Respondent.
The primary issue that is put into dispute by the Respondent is the contention that a marriage has ever occurred. It is to be remembered that the Federal Magistrates Court is not delegated or authorised to exercise jurisdiction as to a declaration of validity of marriage. I am satisfied that this is not what the Court is called upon to do in this circumstance. What the Court is called upon to deal with in this case is an Application for Divorce which, as a necessary and incidental aspect of jurisdiction, requires that a determination be made, on available evidence, as to whether a marriage has occurred and which can thus be dissolved. That is separate and distinct from a determination as to whether a marriage is valid.
The document forwarded by the Respondent suggests two limbs to her opposition. The first, upon reading the first page of that three page document, would suggest an absence of consent to marriage to the Applicant and thus could be seen to raise an issue of validity of marriage. However, no concern as to jurisdiction arises as the document indicates, both in its opening paragraph and on pages 2 and 3 thereof, that there has not, at any time, been a marriage or a marriage ceremony. Thus, what is in fact agitated by the Respondent is an absence of a marriage to be dissolved rather than an issue as to consent or any other circumstance which would vitiate against acceptance of marriage as valid.
The Sessional Registrar has indicated upon the file her concern that the material provided by the wife raised an issue as to validity of marriage. If that were, in fact, apprehended then the Application should have been transferred to the Family Court and not to a Federal Magistrate as that is a matter within the Family Court’s jurisdiction.
The Registrar would appear, (and I accept as the material before her was less than certain and no Respondent appeared to prosecute same), to have formed the belief that an issue of validity was apparent. In any event, the mistake made was not to apprehend that issue, as such, but to have not then transferred the proceedings to the Family Court if the belief was so held.
In any event, I am satisfied that really all that is required in the determination of this matter is a determination based on the available evidence that a marriage has occurred or has not occurred.
The Applicant asserts that a marriage occurred and that a marriage certificate was produced and provided to the Applicant. There is perfectly cogent and plausible explanation as to the absence of the marriage certificate. In that regard I note:
(1)The proceedings are undefended.
(2)Mr Alldrice, the Applicant, has filed material, both his Application for Divorce and a number of Affidavits in support, attesting to marriage having occurred between he and the Respondent on (omitted) 1991 in (omitted).
The Applicant deposes to the fact that a marriage ceremony occurred in accordance with (omitted) law. He also deposes to the fact that the ceremony was conducted by a person authorised to celebrate marriages in accordance with the law of that Country, that the Respondent, the Applicant and members of their respective families attended together with elders, and that at the conclusion of that ceremony a document was signed evidencing the marriage. There was only one copy of that document suggested to exist and that was held by the Applicant.
The Applicant goes on to indicate in his evidence:
In 1993 we had to flee our village due to the civil war. My wife and I fled across the border to (omitted) and I sent my important documents, including the marriage document to a friend in (omitted) for safe keeping.
When I crossed the border into (omitted) I asked my friend for my important personal documents. My friend said words to the effect of “They had been stolen”.
What is also of some importance in the proceedings is that the Applicant has deposed to the fact that upon travelling to Australia with the Respondent and their children, they having been granted refugee status, that both the Applicant and Respondent were provided with a travel document.
The parties arrived in Australia, with their children, on (omitted) 1996 based upon that travel document. The travel document for the parties is provided. It contains pictures of the parties and their three children and it clearly indicates that the parties are married to each other. I note this is a document to which both parties would appear to have had some input and which was generated following their processing as refugees in (omitted).
In those circumstances I am satisfied that the available evidence, which absent an appearance by the Respondent is unchallenged, establishes the existence of a marriage.
I am also satisfied that the matter can and should proceed today on an undefended basis. Personal service of the Application was affected as evidenced by an Affidavit of Service. That is Exhibit A in the proceedings. The Affidavit of Mr Alldrice upon the file containing the evidence to which I have referred is Exhibit B.
I am not satisfied that there are circumstances that would warrant an adjournment of the proceedings. The Respondent has not appeared on any occasion and has not filed any document. The Court has advised the Respondent of today’s listing and its purpose (that is, to hear the case on a final basis).
As the matter is clearly undefended and as I am satisfied as to service of the Application and notice to the Respondent (and being notice not only of today’s listing but also the purpose of the listing) I am satisfied that the matter can and should proceed. In that regard I note further that correspondence from the Court dated 6 August 2012, which shall for the purposes of this decision be Exhibit C, advises the respondent clearly:
This matter has been transferred to be heard before a Federal Magistrate as a defended hearing.
The Registrar directs the Applicant Husband to file and serve further evidence as to the validity of the marriage…before the 16th August 2012.
The reference to filing evidence as to the validity of marriage is not, in fact, evidence that could be filed as the Respondent does not raise issue as to validity. She raises issue as to the absence of a marriage and suggests that a marriage ceremony has never taken place. Again, the reality of the material forwarded by the Respondent is to place into dispute the existence of a marriage rather than the validity of a marriage.
Importantly, the letter concludes:
If there is no appearance on the next occasion, the Divorce Application may proceed on an undefended basis.
Accordingly, I am satisfied that not only does the Respondent have notice of the Application, but also of the consequences of her non-attendance today.
In all of those circumstances I accept the evidence of the Applicant and have no reason to doubt his evidence or the truthfulness of same. Indeed, the truthfulness of his evidence is borne out by the document which has been produced with the input, consent and knowledge of both parties, being the Australian travel document to which I have referred, which evidences that both parties accept and assert that they are married.
I am also satisfied that the Applicant has provided a perfectly cogent explanation as to the absence of a document evidencing the marriage he asserts and that in the circumstances his evidence, which I accept, is the best evidence that is available.
The Applicant has set out clearly, precisely and with some detail that which occurred, who was present, by whom the marriage ceremony was performed, the fact that a document was produced evidencing the marriage and a perfectly appropriate explanation, by reference to the most tragic of circumstances, as to why that document no longer is in his possession.
Accordingly, I make findings as follows.
a)I am satisfied as to jurisdiction based on the husband’s citizenship.
b)I find service proved.
c)I find marriage proved.
d)I find grounds of irretrievable breakdown proved.
e)I am not satisfied the proper arrangements are made for the care and welfare of the two children of the relationship and make the alternate declaration.
f)The divorce shall become final one month from today.
Therefore, the Divorce is granted.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 30 August 2012
0
0