DUDEK & HRESKO
[2015] FamCA 505
•29 June 2015
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
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
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.
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.
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.
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 proceedings that have been instituted under this Act … and it appears to that court that it is in the interests of justice, or of convenience to the parties, that the proceedings be dealt with in another court having jurisdiction under this Act, the court may transfer the proceedings to that other court.
The application of that section was considered in Kavan & Mallery and Anor [2015] FamCAFC 82. In that case, it was confirmed, in making this order, I must be satisfied that it is in the interests of justice or the convenience of the parties that the proceedings be transferred from this Court to the Supreme Court of South Australia. I have decided that it is in the interests of justice and also the convenience of the parties for these proceedings to be so transferred for the following reasons.
The proceedings in this Court and the Supreme Court of South Australia involve a common substratum of fact, to which I have referred. Having the proceedings resolved in one forum will minimise the requirement for a multiplicity of appearances in both jurisdictions and will save costs for the parties and, ultimately, save the utilisation of public resources of the courts. Having the proceedings resolved in one forum will also avoid the possibility of separate courts arriving at different outcomes regarding the issue of the deceased’s mental capacity or incapacity. As I have indicated, that issue is of relevance to both proceedings.
Having the proceedings resolved in one forum would also enable the proceedings to be resolved by a more orderly process insofar as both the respondent and the Public Trustee are parties to the proceedings in the Supreme Court of South Australia. This will facilitate orders being made that impact upon the Public Trustee if the Court decides that is in fact necessary in order to resolve all matters in dispute.
I have considered that, while it would be possible for the Court to deal with those matters that are currently before the Supreme Court of South Australia, pursuant to this Court’s accrued jurisdiction, I think that would be inappropriate to, in effect, seek to duplicate that which has already occurred in the Supreme Court of South Australia. Accordingly, it is appropriate that these proceedings be transferred to the Supreme Court of South Australia. I note that the application is not opposed by the respondent.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 29 June 2015.
Associate:
Date: 2 July 2015