DUDEK & HRESKO

[2015] FamCA 505

FAMILY COURT OF AUSTRALIA

DUDEK & HRESKO [2015] FamCA 505

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer of proceedings – Where the applicants seek a declaration that a marriage is void – Where one of the parties to that marriage is deceased – Where such a declaration would affect Supreme Court proceedings in relation to the deceased’s will – Where the transfer is not opposed – Proceedings transferred to the Supreme Court of South Australia.

Family Law Act 1975 (Cth) s 45(2)

Kavan & Mallery and Anor [2015] FamCAFC 82

APPLICANTS: Ms Dudek & Mr Dudek

RESPONDENT: Ms Hresko

FILE NUMBER: ADC 2570 of 2014

DATE DELIVERED: 29 June 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: 29 June 2015

JUDGMENT OF: McClelland J

HEARING DATE: 29 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Heywood-Smith

SOLICITOR FOR THE APPLICANT: SE Lawyers

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. BY CONSENT the Family Court proceedings are transferred to the Supreme Court of South Australia.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dudek & Hresko has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2570 of 2014

Ms Dudek & Mr Dudek

Applicants

And

Ms Hresko

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These proceedings were commenced by an initiating application filed on 12 August 2014 and concern a challenge to the validity of the marriage between Mr Dudek and Ms Hresko, which occurred in 2014.  At the time of the marriage, Mr Dudek was approximately 96 years of age and Mrs Hresko was approximately 77 years of age.  The application is bought by the children (“the applicants”) of the late Mr B Dudek who unfortunately died in 2014. 

2. By an Amended Initiating Application filed on 5 May 2015, the applicants clarified that they are seeking orders from this Court in the nature of:

   A declaration pursuant to Section 113 of the Family Law Act that pursuant to Section 23B(1)(d)(iii) of the Marriage Act 1961 the marriage of [Mr B Dudek] and [Ms Hresko] on … 2014 is void.

3. On 15 August 2014, proceedings were instituted in the Supreme Court of South Australia by the applicants against Ms Hresko and also the Public Trustee as a second respondent.  Without going into the detail of those proceedings, they involve a common substratum of fact to the matter before the Court. In particular, central to both proceedings, is the issue of the mental capacity of the deceased at the time of the marriage and also, potentially in the state Supreme Court proceedings, at the time of a possible Will that may have been executed at or about the same time as the marriage. 

4. In these circumstances, it is appropriate for these proceedings to be transferred to the Supreme Court of South Australia pursuant to s 45(2) of the Act. That section relevantly provides:

   Where there are pending in a court…