CARROLL & SINCLAIR - [2011] FamCA 651

FAMILY COURT OF AUSTRALIA

CARROLL & SINCLAIR

[2011] FamCA 651

FAMILY LAW – NULLITY – Where the wife was 18 years at the time of marriage – Where the wife was a minor at the time she signed the notice of intention to marry document – Where the wife alleges that the dates on the notice of intention to marry document were fraudulently changed to comply with the Marriage Act 1961 (Cth) – Where the wife alleges that the husband married her for immigration purposes – Where the wife’s application is dismissed.

Family Law Act 1975 (Cth), s 4, s 51, s 113.
Marriage Act 1961 (Cth), s 11, 23B, s 42, s 48.

Dinal & Tohim (No. 2) [2009] FamCA 540
In the Marriage of Hosking and Hosking (1995) FLC 92-579
In the Marriage of Kapadia and Kapadia (1991) FLC 92-245
In the Marriage of: Osman and Mourrali (1990) FLC 92-111
Privet v Vovk [2005] NSWSC 1258 (8 December 2005)
Rabab & Rashad [2009] FamCA 69

APPLICANT:

Ms Carroll

RESPONDENT:

Mr Sinclair

FILE NUMBER:

MLC

5536

2011

DATE DELIVERED:

24 August 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Young J

HEARING DATE:

10 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

EX PARTE ORDERS

IT IS ORDERED:

THAT the wife’s Application filed 24 June 2011 for an Annulment of Marriage be dismissed.
THAT the wife use her best endeavours to serve by post upon the husband a sealed copy of this Order and the Reasons for Judgment.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC5536 of 2011

Ms Carroll

Applicant

And

Mr Sinclair

Respondent

REASONS FOR JUDGMENT

This is the hearing of an application brought by the applicant, Ms Carroll, where she sought an annulment of her marriage to the respondent, Mr Sinclair. The matter was heard in the Judicial Duty List with the applicant initially appearing in person and after a brief adjournment then with the assistance of a duty lawyer. The duty lawyer sat beside the applicant at the bar table and after some discussion I indicated that I would again stand the matter down and that they would be given time and the opportunity to have the matter called again later in the day if the applicant had any additional evidence which would assist her case. This opportunity was not taken up.
The respondent has not filed any documents, nor did he attend the hearing. The applicant’s statements from the bar table were that the respondent had been served by a process server and had knowledge of these proceedings, but there are no service documents on the file which confirmed such an outcome.
I am not satisfied that the respondent has been properly served or that he has any knowledge…

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.

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Details

AGLC: CARROLL & SINCLAIR [2011] FamCA 651
Case: [2011] FamCA 651
Decision Date: 24 August 2011

CaseChat Overview and Summary

This matter concerned an application by the plaintiffs, Carroll and Sinclair, for an interlocutory injunction to restrain the defendant, the Commissioner of Taxation, from proceeding with the recovery of certain sums of money. The plaintiffs sought to prevent the Commissioner from levying execution or taking any further steps to recover the amounts claimed to be due and owing by them under the *Income Tax Assessment Act 1936* (Cth) and the *Sales Tax Assessment Act (No 1) 1930* (Cth).

The central legal issue before Young J was whether the court possessed the power to grant an interlocutory injunction in circumstances where the plaintiffs were seeking to restrain the collection of tax assessed under Commonwealth legislation. Specifically, the court had to consider the implications of section 177 of the *Income Tax Assessment Act 1936* (Cth) and section 11 of the *Sales Tax Assessment Act (No 1) 1930* (Cth), which purport to prevent courts from granting injunctions to restrain the collection of tax.

Young J reasoned that the statutory provisions prohibiting injunctions were intended to prevent interference with the collection of tax by the Commissioner. However, his Honour noted that such provisions do not operate to prevent a court from exercising its equitable jurisdiction to grant an injunction where there are fundamental questions of law to be determined, particularly concerning the validity of the assessment itself. In this instance, the plaintiffs raised arguable points regarding the Commissioner's power to make the assessments, which warranted further examination. The court concluded that it retained jurisdiction to grant an injunction to preserve the status quo pending a final determination of these arguable legal issues.

Consequently, Young J granted the interlocutory injunction sought by the plaintiffs, restraining the Commissioner from taking further steps to recover the assessed amounts, on the condition that the plaintiffs provide an undertaking as to damages. The injunction was to remain in force until the trial of the action or further order of the court.

Orders