Dinal & Tohim (No. 2) - [2009] FamCA 540

FAMILY COURT OF AUSTRALIA

DINAL & TOHIM (NO. 2)

[2009] FamCA 540

FAMILY LAW – DECLARATION – Validity of marriage

Family Law Act 1975 (Cth)

C v D (1979) FLC 90-636
Casim v Casim (1962) Probate Cases 224
Harsheft v Harsheft No. 1 (1953) Probate Cases 161
Kapadia (1991) FLC 92-245

APPLICANT:

Mr Dinal

RESPONDENT:

Ms Tohim

FILE NUMBER:

MLC 46 of 2009

DATE DELIVERED:

12 June 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

12 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr P.A. Marchetti

SOLICITOR FOR THE APPLICANT:

Lampe Family Lawyers

THE RESPONDENT:

Litigant in person

Orders

IT IS DECLARED

That the marriage and marriage ceremony that took place at L, Australia on … March 2000 was not a valid marriage by virtue of the provisions of s 113 of the Marriage Act 1961 (Cth).

IT IS REQUESTED

That the Registrar of Births, Deaths and Marriages (Victoria) note the declaration herein and amend the records accordingly.
That pursuant to s 113 of the Family Law Act 1975 (Cth), IT IS DECLARED that the husband and the wife were divorced from each other in Egypt on 5 July 2008 and that such divorce is valid for all purposes of Australian law.
That the application for divorce filed by the husband on 5 January 2009 is dismissed.
That the application in a case filed by the husband on 12 May 2009 and the response of the wife thereto filed 2 June 2009 be otherwise dismissed.

AND THE COURT NOTES

A.That the file be otherwise returned to the Federal Magistrates Court of Australia for the completion of all extant proceedings between the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 46 of 2009

MR DINAL

Applicant

And

MS TOHIM

Respondent

REASONS FOR JUDGMENT

On 5 January 2009, the husband filed for divorce in the Federal Magistrates Court. Throughout these reasons, for my convenience, I will refer to Mr Dinal as the husband and Ms Tohim as the wife, notwithstanding there may be some confusion about the state of their conjugal relationship.
The husband's application was supported by an affirmation asserting that the facts were true. He made that affirmation in Cairo. His application asserted the date and place of marriage on his marriage certificate was L, Australia on … March 2000.
According to s 39 of the Family Law Act 1975 (Cth) (“the Act”), proceedings for a divorce may be instituted under the Act if at the date of the filing of the application either party to the marriage satisfied citizenship, domicile or residence requirements. Divorce or validity of marriage proceedings as defined by s 4 of the Act refers to proceedings between the parties to a marriage or by the parties to a marriage for a divorce order in relation to the marriage, but it also…

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 Dinal & Tohim (No. 2)

Details

AGLC: Dinal & Tohim (No. 2) [2009] FamCA 540
Case: [2009] FamCA 540
Decision Date: 12 June 2009

CaseChat Overview and Summary

In *Dinal & Tohim (No. 2)*, Cronin J of the Federal Court of Australia considered the validity of a marriage and a subsequent divorce in the context of Australian family law. The dispute arose between a husband and wife concerning the legal status of their marriage and divorce proceedings.

The court was required to determine whether the marriage ceremony conducted in Australia in March 2000 was valid under Australian law, specifically in light of section 113 of the *Marriage Act 1961* (Cth). Furthermore, the court had to ascertain the validity and effect of a divorce obtained by the husband in Egypt on 5 July 2008 for the purposes of Australian law, and whether this Egyptian divorce rendered the husband's subsequent Australian divorce application redundant.

Cronin J declared that the Australian marriage ceremony was invalid by virtue of section 113 of the *Marriage Act 1961* (Cth). The court also declared that the divorce obtained by the husband in Egypt on 5 July 2008 was valid for all purposes of Australian law, pursuant to section 113 of the *Family Law Act 1975* (Cth). Consequently, the husband's application for divorce filed in Australia on 5 January 2009 was dismissed, as were further applications and responses filed in May and June 2009. The court directed the Registrar of Births, Deaths and Marriages (Victoria) to amend records to reflect the declaration regarding the invalidity of the marriage. The file was otherwise returned to the Federal Magistrates Court for the completion of extant proceedings.

Orders

Orders of the court

IT IS DECLARED

That the marriage and marriage ceremony that took place at L, Australia on … March 2000 was not a valid marriage by virtue of the provisions of s 113 of the Marriage Act 1961 (Cth).

IT IS REQUESTED

That the Registrar of Births, Deaths and Marriages (Victoria) note the declaration herein and amend the records accordingly.

That pursuant to s 113 of the Family Law Act 1975 (Cth), IT IS DECLARED that the husband and the wife were divorced from each other in Egypt on 5 July 2008 and that such divorce is valid for all purposes of Australian law.

That the application for divorce filed by the husband on 5 January 2009 is dismissed.

That the application in a case filed by the husband on 12 May 2009 and the response of the wife thereto filed 2 June 2009 be otherwise dismissed.

AND THE COURT NOTES

A. That the file be otherwise returned to the Federal Magistrates Court of Australia for the completion of all extant proceedings between the parties.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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