Calhoun & Forman

[2025] FedCFamC1A 24

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Calhoun & Forman [2025] FedCFamC1A 24

Appeal from:	Forman & Calhoun [2024] FedCFamC2F 1230
Appeal number:	NAA 253 of 2024
File number:	MLC 10747 of 2023
Judgment of:	ALDRIDGE J
Date of judgment:	24 February 2025
Catchwords:	FAMILY LAW – APPEAL – DIVORCE – Where the appellant contended the parties were not married – Where the appellant asserted the subject marriage was to a person other than herself – Where many of the grounds of appeal fail to identify purported error – Where the appellant failed to make submissions on many of her grounds of appeal – Where the appellant reagitated matters put before and dealt with by the primary judge – No error identified – Appeal dismissed.
Cases cited:	Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Number of paragraphs:	43
Date of hearing:	30 January 2025
Place:	Sydney (via video link)
The Appellant:	Self-represented litigant
The Respondent:	Self-represented litigant

ORDERS

NAA 253 of 2024
MLC 10747 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS CALHOUN

Appellant

AND:

MR FORMAN

Respondent

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	24 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The appeal is dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Calhoun & Forman has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALDRIDGE J:

1. On 6 September 2024 a judge of the Federal Circuit and Family Court of Australia (Division 2) made a divorce order having found that the parties were married in early 2014 and that the other requirements for making the order were met. Ms Calhoun (“the appellant”) has appealed contending that the finding of marriage was erroneously made.

2. There is no doubt that Mr Forman (“the respondent”) and a person called Ms B Calhoun were married in Country C on the same date in early 2014. The primary judge found that Ms B Calhoun was the same person who now calls herself Ms Calhoun, a proposition disputed by the appellant.

3. In order to understand the appeal, some history is of assistance.

4. The appellant was married to Mr D in Country C in late 2012 and was divorced some time before late 2014.

5. The respondent asserted, and the appellant denied, that Mr D was, in fact, the appellant’s brother and that that “marriage” was a sham to assist the appellant to emigrate to Australia.

6. The appellant came to live in Australia in early 2013.

7. A wedding took place in Country C on the relevant date in early 2014 between the respondent and Ms B Calhoun.

8. The Country C records also show a marriage between Ms Calhoun and the respondent in late 2014. The respondent contended that this was a sham marriage using the appellant’s correct name to support his application to migrate to Australia. The appellant contended that this was the only marriage between the parties and that it was void because at the time the respondent was married to Ms B Calhoun. She did not seek the annulment of that marriage.

9. The parties lived together from 2014 until they separated on 2 July 2022. They have one child who was born in mid-2015.

10. The main issue to be determined in the proceedings was whether the appellant and Ms B Calhoun were the same person.

11. The primary judge gave particular weight to two copies of a document headed “[Region E, Country C] Compulsory Registration of Marriage”, one of which was notarised as an official copy and one not. It recorded a wedding between Mr Forman and Ms B Calhoun on the relevant date in early 2014. It contains a colour photograph of the bride and groom. The appellant accepted that she is the bride in the photograph, which was taken on the wedding day.

12. Her Honour did not accept the evidence that the certificate was a fake as asserted by the appellant.

13. The appellant was accompanied to court to the hearing before the primary judge by Mr D, her husband from her 2012 marriage. He did not give evidence.

14. Photographs found to have been taken at the wedding ceremony in early 2014 show a person named Mr F together with the parties. Mr F is described as the father of Ms B Calhoun in the Registration of Marriage Certificate.

15. According to the marriage certificate for the 2012 marriage between Ms Calhoun and Mr D, Mr D’s father is also Mr F. This was confirmed by the appellant during cross-examination, although she claimed there could be more than one Mr F.

16. Mr D was, therefore, particularly well placed to give evidence as to his relationship to the appellant, the identity of the bride at the wedding, and the relationship of Mr F, if any, to the parties. He was clearly available to give evidence.

17. The primary judge found that the appellant did not give any plausible evidence as to Mr D accompanying her to court each day. It was found that it was more likely than not that Mr F was the appellant’s father and that Mr D was her brother, that the photos on the disputed certificate depicted a wedding on that day and that the appellant was indeed the bride.

18. The respondent’s contentions were therefore established and the divorce order made.

    THE APPEAL

19. The appellant acted for herself during the appeal, as she did at the trial.

20. The Notice of Appeal (filed 3 October 2024) contained the following grounds:

    1.        The appellant was denied the procedural fairness.

    i.        The appellant was unrepresented.

    ii.The evidence of [Ms G] was not allowed to be adduced for technical reasons.

    2.The Australian juridiction [sic] was clearly inappropriate to decide the issues involved in the case.

    i.The parties are [of Country C] origin and [Country C] citizens all the disputed issues relate to [Country C].

    ii.The primary Judge noted that the husband deposed that there are ongoing proceedings in [Country C] in relation to divorce and family law. Therefore the primary court was required to make orders that the parties to get determine [sic] their disputes in [Country C].

    iii.The wife repeatedly had been making submissions that the matter should be decided in [Country C].

    iv.The divorce order made by the Australian court is not valid in [Country C].

    3.The primary Judge ignored the fact that neither party adduced any evidence from their families and the persons available a the marriage ecermonies [sic]. But the primary Judge drew adverse inference only against the wife.

    4.The primary Judge did not give proper weight to the fact that the fact of second marriage was disclosed by the wife herself and the husband was trying to misguide the court.

    5.The appellant/wife was not party to the marriage divorced by the primary court.

    6.        No official marriage record was produced by the husband in the court.

    7.The appellant believes that the real [Ms B Calhoun] who married [Mr Forman] is living in [Country C].

    8.Further grounds will be included after collecting the evidence from [Country C] well in advance before the final hearing of the appeal.

    (As per the original)

21. As is apparent, many of these grounds do not identify any purported error.

22. The position was not illuminated by the appellant’s Summary of Argument. Under each ground she merely wrote “Submission will be made at the time of hearing”.

    Adjournment application

23. At the hearing of the appeal the appellant effectively sought its adjournment because she had applied for a grant of legal aid.

24. She said that she had approached Legal Aid in late 2024 and was asked to provide relevant documents by early 2025, which she did. She said she told Legal Aid that the appeal was listed for hearing today. There has been no response, which is hardly encouraging.

25. The appellant has not, as far as I am aware, contacted Legal Aid since. It cannot be said that aid is likely to be granted if the appeal was adjourned.

26. The appellant also said that she wished to submit documents to the Court hearing the appeal. She identified her passport, a “complaint document in which [she has] done a complaint that they’re using [her] identity by a wrong name”, a subpoena, and documents pertaining to a visa cancellation (Transcript 30 January 2025, p.4 lines 21–29).

27. It appears that the Department of Home Affairs has cancelled the appellant’s visa and that she has sought to have that decision reviewed. She is awaiting the outcome, which she said would be relevant to these proceedings. Presumably, the appellant seeks to persuade the Department that she is a different person to Ms B Calhoun. If not, the proceedings have no relevance.

28. There is no information before me which indicates the stage the review is at or even whether the review is being conducted by the Department, a tribunal or a court, nor its subject matter.

29. In these circumstances it is difficult to give the review application any weight. I do note however, that there were Department of Immigration documents before the primary judge, which her Honour found were consistent with the respondent’s case. Ultimately her Honour gave them no weight due to the unsatisfactory evidence about the investigation and the review, preferring to rely on her own assessment of the evidence before her (at [98]).

30. The documents referred to by the appellant are either so vaguely described as to be undeserving of any consideration or appear to be documents that were available at the time of the hearing but were not relied upon. There is, therefore, little prospect of them being received into evidence on appeal.

31. I was not persuaded that the presentation of the appeal would be materially advanced if an adjournment was granted.

32. The appellant has been aware of the steps needed to prosecute this appeal for some time. She filed the Notice of Appeal on 3 October 2024. Procedural directions were made by an appeals judicial registrar on 12 November 2024. The appellant filed an Application in an Appeal seeking to discharge the registrar’s order for the provision of the trial transcript on 21 November 2024. Orders to that effect were made at a hearing before me on 13 December 2024. The appellant’s Summary of Argument was filed on 17 December 2024.

33. At no time was the involvement of Legal Aid or the provision of further documents foreshadowed by the appellant.

34. Whilst the appellant is entitled to be afforded a reasonable opportunity to prepare the appeal properly, the respondent is also entitled to have it dealt with promptly in accordance with the court’s directions. I consider that the appellant has been given sufficient time to prepare for the appeal.

35. Taking all these matters into account, I was not persuaded that the interests of justice were in favour of any adjournment and I dismissed the application.

    Disposition of appeal

36. In oral submissions the appellant did not address the grounds of appeal directly or even indirectly. There is no point attempting to deal with them seriatim for that reason. For example, the complaint as to a lack of procedural fairness cannot be pursued because the subject of it was not identified and cannot be the subject of guess work.

37. The oral submissions can be distilled into the following complaints:

    ·The marriage certificates relied on by the primary judge were not correct. They were not true copies.

    ·The certificates were not obtained properly (that is, by the respondent’s uncle and not by a government department).

    ·The appellant was waiting on a “judgment” as to her visa status.

    ·The documents record Ms B Calhoun having a different birth date to the appellant.

    ·A proper investigation needed to be undertaken.

38. Each of these points are a restatement of the appellant’s case as put to the primary judge, each of which was carefully considered by her Honour and rejected. They do not attempt to show error in that process.

39. It is for an appellant, even one in person, to identify and persuade an appellate court of error on the part of the trial judge. In Bahonko v Sterjov (2008) 166 FCR 415, the Full Court of the Federal Court said:

    3…it is a fundamental aspect of the appellate process that appeals are made available for the correction of error. This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all of the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.

    (Citations omitted)

40. I am quite unable to see any error on the part of the primary judge. There were clear inadequacies and difficulties in the evidence which were expressly dealt with by her Honour. It is for the parties to either call or not call evidence that assists their case.

41. For the avoidance of doubt, the respondent relied on the document titled “[Region E, Country C] Compulsory Registration of Marriage”. Once admitted, it cast an evidentiary onus onto the appellant to call evidence to rebut what the document showed. She did not and the primary judge took that into account. On the other hand, the respondent relied on the registration document and did not need to call further evidence in support of his case until there was evidence impugning it.

42. Further, given that the parties had lived in Australia for at least seven years, and that there were no proceedings that had been taken or contemplated in Country C, Australia was not a clearly inappropriate forum in which to pursue a divorce.

43. The appeal will be dismissed.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge.

Associate:

Dated:       24 February 2025