FOLSTON & FOLSTON

[2009] FamCA 1118

FAMILY COURT OF AUSTRALIA

FOLSTON & FOLSTON [2009] FamCA 1118

FAMILY LAW – DECLARATION – Matrimonial cause – Whether a marriage validly entered into

Births, Deaths and Marriages Registration Act 1995 (NSW) s 33
Family Law Act 1975 (Cth) ss 4(1), 39(1), 113

APPLICANT: Mr Folston

RESPONDENT: Ms Folston

FILE NUMBER: CAC 1730 of 2009

DATE DELIVERED: 20 November 2009

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 20 November 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. In accordance with s 113 of the Family Law Act 1975 (Cth), I declare that the marriage entered into between Mr Folston and Ms Folston on … March 1970 is a valid marriage and was duly solemnized at that time.

2. I direct that the Registrar of the Registry of Births, Deaths and Marriages in the state of New South Wales note the declaration as to the validity of the parties’ marriage and the statutory requirements of s 33 of the Births, Deaths and Marriages Registration Act 1995 (NSW).

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1730 of 2009

MR FOLSTON

Applicant

And

MS FOLSTON

Respondent

REASONS FOR JUDGMENT

Introduction  

1. This matter concerns an application for final orders filed by the applicant and respondent, originally filed in the Local Court, subsequently (and incorrectly) transferred to the Federal Magistrates Court of Australia and then subsequently (and correctly) transferred to the Family Court of Australia.   

2. The parties seek for this Court to declare that their marriage, which was “duly solemnized at [W] on […] March 1970”[1] between the applicant and the respondent “was a valid marriage.”[2] The parties also seek that the Registrar of the New South Wales (NSW) Registry of Births, Deaths and Marriages “be directed to register the marriage duly solemnized” from the date which the parties state it occurred.

   [1] Application for Final Orders, filed 1 October 2009, Final Order 3 sought from the Court.

   [2] Ibid.

3. The application also seeks for the matter to be heard ex parte.  This is not, strictly speaking, the correct characterisation of the way in which this matter should proceed.  The matter has been determined by me in Chambers and delivered in open Court today.  The parties also identified themselves as joint applicants.  They should be correctly identified as applicant and respondent respectively.

The facts as detailed by the applicant

1. Mr Folston gave evidence by way of Affidavit (filed 1 October 2009) that he married Ms Folston at W, NSW on … March 1970.  Statutory declarations confirming this event were annexed to Mr Folston’s Affidavit from Mr Foltson himself, the respondent, Mr T Folston (who identifies as the applicant’s best man and is presumably Mr Folston’s brother) and Mr C (Mr Folston’s groomsman).  Mr Folston also annexed a copy of a wedding invitation from Ms Folston’s mother addressed to Mr and Mrs T Folston to attend the wedding of Ms Folston and Mr Folston at 4.00 pm on … March 1970.  Mr Folston also annexed a copy of an article from an unidentified newspaper (referred to by Mr Folston as the “Area Newspaper”) which details that the marriage occurred on Saturday at 4.00 pm on an unspecified date.[3]  The article describes the type of dress that Ms Folston apparently wore, that Mr T Folston was the applicant’s best man and that Mr C was a groomsman, as well as the names of the bridesmaids.  A photo of the couple appears at the top of the article. 

   [3] I take judicial notice that … March 1970 was, indeed, a Saturday: see Wikipedia reference: …

2. Mr Folston annexed a photo of a wedding party featuring a groom and a bride, two groomsmen and two bridesmaids.  Whilst I admit that I am not an expert in photographic analysis of faces, the faces of the apparent bride and groom that feature in the photo in the article looks to me to be identical to the photo annexed of the wedding party.

3. The dilemma which has led to the application is that at the date of the apparent ceremony, the priest apparently did not prepare a marriage certificate.  Mr Folston provided a copy of a letter from Father B of S Catholic Church, addressed to a Mr P (which was filed in the Local Court, but not annexed to Mr Folston’s Affidavit).  In this letter, Father B identifies that two of his parishioners (who are not identified but are presumably the applicant and respondent) were:

   … married in [W] by a very good priest who had a drinking problem and, unfortunately, the priest did not register the marriage.  Recently the couple found that their wedding had not been registered.

4. The applicant and the respondent both attest that neither of them received a marriage certificate from the priest at the time of the ceremony or after it.  Mr Folston provided a copy of a letter dated 19 June 2008 from the Manager, Registration Development Services, NSW Registry of Births, Deaths and Marriages to Mrs Folston (which was filed in the Local Court, but not annexed to Mr Folston’s Affidavit).  Notwithstanding that the letter identifies the respondent as Mrs Folston, the Manager stated inter alia:

   No records of [the] marriage could be located and as a result the Registry is unable to register the marriage at this stage.

The Law

1. The Family Court has jurisdiction under s 39(1) of the Family Law Act 1975 (Cth) to hear a “matrimonial cause.” A “matrimonial cause” under s 4 of the Family Law Act 1975 (Cth), includes “proceedings for a declaration as to the validity of…a marriage.” Finally, under s 113, the Court is empowered to make such declarations as is justified in proceedings of the kind referred to in paragraph (b) of the definition of “matrimonial cause” in s 4(1) of the Family Law Act 1975 (Cth) (which includes proceedings for a declaration as to the validity of a marriage).

Discussion

1. The evidence I take into account includes the Affidavit of the applicant and the statutory declarations annexed thereto of the respondent, Mr T Folston and Mr C.  On balance, I am satisfied on the evidence that has been put before the Court that the parties intended to be married on … March 1970 and that a ceremony of marriage occurred on that date.  I am satisfied that the parties have held themselves out to the world at large that they are indeed a married couple. 

2. I note that s 33 of the Births, Deaths and Marriages Registrations Act 1995 (NSW) requires a marriage that is solemnised in NSW in accordance with law, the marriage must be registered under that Act. 

3. I direct the Registrar of the Registry of Births, Deaths and Marriages in NSW to note my declaration as to the validity of the marriage between the parties and to note the requirements of s 33 of the Births, Deaths and Marriages Registration Act 1995 (NSW).

Conclusion

1. I make orders in accordance with my Judgment.  The matter is removed from the pending cases list.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.  

Legal Associate: 

Date:  20 November 2009