Gellner & Gellner (No 2)

[2024] FedCFamC2F 1798

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Gellner & Gellner (No 2) [2024] FedCFamC2F 1798   

File number(s):

SYC 4187 of 2023

Judgment of:

JUDGE STREET

Date of judgment:

5 December 2024

Catchwords:

 FAMILY LAW – PROPERTY – Application in a Proceeding -seeking an order asserting that there was no jurisdiction in this Court - wife was 16 at the time of Marriage - jurisdiction conferred on this Court is not subject to the Marriage Act – Response filed raised no jurisdictional issue– wife submitted to jurisdiction of the Court - no substance in the contention of any unenforceability or invalidity of rights under Part VIII – Application in a Proceeding vexatious – dismissed.

Legislation:

Family Law Act 1975 (Cth)

Marriage Act 1961 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:

Lay v Pech [2018] NSWSC 460

Mensink v Registrar of the Federal Court of Australia [2024] FCAFC 124

Nelson v Nelson (1995) 184 CLR 538

Owners of the Ship Shin Kobe Maru v Empire Shipping (1994) 181 CLR 404

Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (2003) 214 CLR 514

Division:

Division 2 Family Law

Number of paragraphs:

17

Date of hearing:

5 December 2024 and 6 December 2024

Counsel for the Applicant:

Mr S Gardiner

Solicitor for the Applicant:

One Group Legal

Counsel for the Respondent:

Mr A Strik

Solicitor for the Respondent:

Urban Family Lawyers

ORDERS

SYC 4187 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR GELLNER

Applicant

AND:

 MS GELLNER

Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	5 DECEMBER 2024

THE COURT ORDERS THAT:

1.The Application in a Proceeding filed on 27 November 2024 is dismissed.

2.The Court reserves the costs arising from that Application.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE STREET

1. These are property proceedings that were commenced on 13 June 2023 by the applicant husband (“the husband”) against the respondent wife (“the wife”) for property orders under section 79 of the Family Law Act 1975 (Cth) (“the Act”). The wife filed a response on 22 August 2023 and has taken steps in the proceedings, which are currently part heard, having been before the Court last on 3 October 2024 and stood over part heard to today. On 27 November 2024, the wife filed an Application in a Proceeding seeking an order asserting that there was no jurisdiction in this Court because the parties were not validly married under section 88D(2) of the Marriage Act 1961 (Cth) (“the Marriage Act”).and because the wife was 16 and not the marriageable age of 18 under s 11 of the Marriage Act.

2. Mr Strik on behalf of the wife relied on a number of authorities dealing with underage marriages.  None of those proceedings reflect the circumstances of the kind in the present case, where there are part-heard proceedings under Part VIII and where steps have been taken in the proceedings of the kind that would clearly amount to a submission to jurisdiction in any event. 

3. Dealing first with the jurisdiction of this Court in respect of the property proceedings, it is conferred by s39 of the Act, and the definition of "matrimonial cause" in s 4(ca) of the Act relevantly includes proceedings between parties to a marriage in respect of the property of the parties to the marriage. Further s4(2) provides a meaning of “marriage” that includes annulment, so that the rights under Part VIII, are not lost by reason of annulment which is a term that would be construed as including invalidity of the kind alleged in the present case.

4. The jurisdiction conferred on this Court by the Act is not subject to the Marriage Act. There is a very clear principle binding principle on this Court from the unanimous decision of the High Court of Australia in the case of Owners of the Ship Shin Kobe Maru v Empire Shipping (1994) 181 CLR 404 at 421. “It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words”.

5. For those reasons alone, the application in a proceeding has to fail. Section 39 of the Act is not to be read down by the provisions of the Marriage Act.

6. Further, these are proceedings in respect of which there are express provisions that deal with a challenge to jurisdiction under r 2.19 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) that is, a response must be filed raising a challenge to jurisdiction so as not to be taken to have submitted to the jurisdiction. No response in accordance with r 2.19 of the Rules was filed, and in these circumstances, there has been a submission to the jurisdiction in relation to s 79 of the Act by the wife.

7. The decision in Mensink v Registrar of the Federal Court of Australia [2024] FCAFC 124 at 33 makes clear voluntary acts not preserving a purported challenge to jurisdiction will amount to a surrender to the jurisdiction of the Court. There has been a surrender or submission to jurisdiction of the Court by the wife in these proceedings by the steps she has voluntarily taken in that regard. For this additional reason the Application in a Proceeding must be dismissed.

8. Further, there is a decision in Lay v Pech [2018] NSWSC 460 that usefully summarises the obvious proposition that allegations of fraud or illegality must be expressly identified in the relevant pleading, in this case, a response and this would include the allegation of alleged unlawful conduct now advanced in the present case. The relevant passage is at pg 59, citing relevantly Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (2003) 214 CLR 514 at 534.

9. The response filed by the wife raised no such issue. To file an Application in a Proceeding on 27 November 2024 purporting to challenge jurisdiction at this stage of the proceedings of itself is a non-compliance with the Rules that would enliven a discretionary power for dismissal of the Application in a Proceeding. The relevant steps that should have been taken in that regard were the filing of an application seeking leave to file a proposed response identifying the grounds of alleged illegality. Given the stage reached of the proceedings on this discretionary ground the Application in a Proceeding should be dismissed.

10. The statutory provisions in the Marriage Act provide no prohibition of an express kind preventing pursuit of property proceedings, as identified by the learned McHugh J in Nelson v Nelson (1995) 184 CLR 538 at 613. The consequences in respect of alleged unlawful conduct may be identified by the statute disclosing an intention that those rights should be unenforceable in all the circumstances. There is no such express provision in s 11 or s88D of the Marriage Act that kind. McHugh J then identifies the approach that must be then adopted, and that is in paragraph (b)(i) to (b)(iii) at page 613, which are as follows:

    (b)(i) the sanction of refusing to enforce those rights is not disproportionate to the seriousness of the unlawful conduct;

    (ii) the imposition of the sanction is necessary, having regard to the terms of the statute, to protect its objects or policies; and

    (iii) the statute does not disclose an intention that the sanctions and remedies contained in the statute are to be the only legal consequences of a breach of the statute or the frustration of its policies

11. The alleged unlawful conduct in the present case is in respect of the marriage overseas that occurred between the parties in Country D.

12. There has been a substantial period of marriage, albeit with one break, and children from that marriage. The principles identified by the learned McHugh J identify that refusing to enforce this Court's property jurisdiction under Part VIII would be disproportionate to the alleged illegality or unlawfulness even if there was illegality. Nor is a sanction of un-enforcement, having regard to the terms of the statute, necessary to protect its objects or policies in relation to the Marriage Act, which is not concerned with the alteration of property interests the subject of s79 of the Act. Further, the Marriage Act provisions to which the Court has referred do not disclose an intention to prevent remedies in respect of property rights arising under the Marriage Act. For this additional reason the application in a proceeding must be dismissed.

13. Further, there are no proceedings that have been brought, and they could not be in these proceedings for a declaration referable to the marriage being void or invalid.  They are separate proceedings that must be separately instituted.  For all these reasons this Application in a Proceeding was vexatious and should not have been filed. 

14. Further, when one goes to the Marriage Act in respect of s 88D, it refers to a person being under the age of 16 in the relevant provision, whereas the wife in the present case was of the age of 16.

15. There is no substance in the contention of any unenforceability or invalidity arising from s 88D of the Marriage Act that would prevent the enforcement of the property rights in the present case. Nor does the contravention of s 11 of the Marriage Act by the husband give rise to consequences that there should not be enforceable property rights under s 79 of the Act.

16. To the extent that it is contended that the wife was a resident of Australia at the time of getting married in Country D, the Court does not have to resolve the issue as to whether or not the proposition of a contravention of s 11 of the Marriage Act is in fact correct, given that the marriage did not take place in Australia and Australian statutes do not have extraterritorial force unless expressly identified as doing so and subject to the constraints of private international law.

17. It is for these reasons the Court makes the above orders.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Street.

Associate:

Dated:       16 December 2024