Ghazel and Ghazel and Anor
[2016] FamCAFC 31
•4 March 2016
FAMILY COURT OF AUSTRALIA
| GHAZEL & GHAZEL AND ANOR | [2016] FamCAFC 31 |
| FAMILY LAW – APPEAL – where the husband and wife were married in Iran under Iranian law which permits a husband to take three additional wives – where the wife sought a declaration that the marriage is recognised as valid in Australia under Part VA of the Marriage Act 1961 (Cth) – where such a declaration was refused by the primary judge on the basis that amendments made to the Marriage Act in 2004 prevent the recognition in Australia of a potentially polygamous marriage – where the wife appealed the primary judge’s decision – where at the invitation of the Full Court the Attorney-General intervened to argue that the Marriage Amendment Act 2004 (Cth) did not prevent the recognition of potentially polygamous marriages in Australia – appeal upheld – orders set aside – declaration of validity made – no order for costs – costs certificates made |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) Marriage Act 1961 (Cth) Marriage Amendment Act 1985 (Cth) Marriage Amendment Act 2004 (Cth) |
Convention on Celebration and Recognition of the Validity of Marriages signed at The Hague on 14 March 1978
| APPELLANT: | Ms Ghazel |
| RESPONDENT: | Mr Ghazel |
| INTERVENER: | The Attorney-General of the Commonwealth |
| FILE NUMBER: | BRC | 1670 | of | 2008 |
| APPEAL NUMBER: | NA | 29 | of | 2015 |
| DATE DELIVERED: | 4 March 2016 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Finn, May & Austin JJ |
| HEARING DATES: | 29 September 2015 1 October 2015 26 November 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 March 2015 |
| LOWER COURT MNC: | [2015] FamCA 240 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INTERVENER: | Mr Gleeson SC Solicitor-General of the Commonwealth with Ms Winnett |
| THE INTERVENER: | The Attorney-General of the Commonwealth |
Orders
The appeal against Order 1 of the orders made by the Honourable Justice Hogan on 27 March 2015 (and amended on 21 April 2015) be allowed and that order be set aside.
The initiating application filed by Ms Ghazel on 19 November 2014 be granted, and accordingly it be declared that the marriage between Ms Ghazel and Mr Ghazel which took place in … Iran on … 1981 be recognised as valid in Australia under Part VA of the Marriage Act 1961 (Cth).
There be no order for costs in relation to the appeal.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the
Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the
Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ghazel & Ghazel and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 29 of 2015
File Number: BRC 1670 of 2008
| Ms Ghazel |
Appellant
And
| Mr Ghazel |
Respondent
And
| The Attorney-General of the Commonwealth |
Intervener
REASONS FOR JUDGMENT
This appeal is concerned with the question as to whether a foreign marriage, which is potentially polygamous when it is entered into, will be recognised as a valid marriage in Australia under Part VA of the Marriage Act 1961 (Cth), particularly having regard to amendments made to Part VA by the
Marriage Amendment Act 2004(Cth). Part VA provides for the recognition of foreign marriages in this country.
Factual and procedural background
Mr Ghazel, who was born in Iran, and Mrs Ghazel, who was born in England, married in Iran in mid 1981 according to the law of that country; that law permitted a husband subject to certain conditions to take up to three additional wives. Thus, the marriage of the parties in Iran can be described for present purposes as “a potentially polygamous marriage”, and it is that type of marriage with which these reasons are concerned.
Mr and Mrs Ghazel subsequently moved from Iran to live in England where, in late 1981, they went through a marriage ceremony at an English Registry Office. On the marriage certificate in relation to that marriage, the parties are respectively described as “Bachelor” and “Spinster”. They also registered their Iranian marriage at the Iranian Embassy in the United Kingdom on or about 23 May 1984.
In 2003 Mrs Ghazel, together with the two children who had been born of her marriage to Mr Ghazel, migrated to Australia, with Mr Ghazel following in 2005. In 2007 all four members of the family became Australian citizens.
On 22 February 2008 a joint application for divorce was filed in Australia by Mr Ghazel and Mrs Ghazel. The application referred only to their marriage in England. On the basis of that application a divorce order was made by the Federal Magistrates Court of Australia (as it then was) on 18 March 2008. There is a dispute between the parties as to whether their cohabitation continued, or was resumed, after the divorce.
On … 2011 the husband married another woman in Iran, and according to Mrs Ghazel, also married that other woman in Australia in early 2012.
In August 2013 in proceedings in Iran initiated by Mrs Ghazel (apparently to determine how it was that Mr Ghazel was able to marry again in Iran allegedly without Mrs Ghazel’s consent), an Iranian Court concluded that the Iranian Government’s civil status register recorded that the Iranian marriage between Mr and Mrs Ghazel was still in existence as there was no legally registered divorce, and that Mr Ghazel had entered into a second marriage with a Ms C.
On 19 November 2014 solicitors acting for Mrs Ghazel filed in the
Family Court of Australia an application seeking an order that the marriage between herself and Mr Ghazel in 1981 in Iran be “declared valid in accordance with section 88D of [the] Marriage Act 1961”. Mr Ghazel acting on his own behalf filed a response opposing the making of the declaration sought by Mrs Ghazel.
Mrs Ghazel’s application was heard by Hogan J on 23 and 27 March 2015.
On 27 March 2015 her Honour delivered ex-tempore reasons for judgment in which she held that the definition of marriage as “the union of a man and a woman to the exclusion of all others voluntarily entered into for life”, which is contained in s 5(1) of the Marriage Act and which is applicable to the provisions governing the recognition of foreign marriages in Australia in
Part VA of the Act (s 88B(4)), “means that a marriage solemnised in a foreign country must be monogamous for it to be recognised as valid in Australia”, and thus that polygamous marriages are not recognisable in Australia. Accordingly, the Iranian marriage of Mr Ghazel and Mrs Ghazel, being potentially polygamous, could not be recognised as valid in Australia.
Her Honour therefore dismissed Mrs Ghazel’s application for a declaration that the Iranian marriage was valid under s 88D of the Marriage Act.
Her Honour acknowledged in her reasons that in reaching her conclusion that a potentially polygamous marriage will not be recognised as valid in Australia, she had relied on the discussion of this subject in the 9th edition of Nygh’s Conflict of Laws in Australia (at pages 566 to 576).
In her orders her Honour had also included an order (the terms of which were amended on 21 April 2015) which required that a copy of the transcript of the hearing before her, together with copies of certain other documents, be forwarded to the Attorney-General apparently for investigation in relation to “the possible commission of a crime”. Although this second order was formally appealed in Mrs Ghazel's notice of appeal, no submissions were made to us about that order, and we will therefore not concern ourselves further with it.
On 24 April 2015, Mrs Ghazel filed a notice of appeal against Hogan J’s orders dismissing her application for a declaration of validity of the Iranian marriage.
Mrs Ghazel’s appeal first came before this Full Court for hearing on
29 September 2015 when both she and Mr Ghazel (who opposed the appeal) appeared without legal representation. Neither party was therefore in a position to offer us any real assistance in the determination of the appeal.
However, in both her written and oral submissions to us Mrs Ghazel contended that this case was a test case with wide ramifications, as she said in her written submissions (at [10]) “… if all marriages celebrated in countries where the
lex loci celebrationispermits polygamous marriages between its domiciliaries, then upon changing domicile to Australia the married parties thereby become un-married.”
With this submission in mind, we decided following the hearing on
29 September 2015, that as the appeal raised a matter affecting the public interest, we should re-open the hearing of the appeal and pursuant to the provisions of s 91 of the Family Law Act 1975 (Cth) request the
Attorney-General of the Commonwealth to intervene in the appeal and assist us with argument in relation to its determination. At a further brief hearing on
1 October 2015, we made orders to this effect.
The Attorney-General agreed to intervene, and accordingly, the hearing of the appeal resumed on 26 November 2015 with the Solicitor-General of the Commonwealth appearing on behalf of the Attorney-General, and Mr Ghazel and Mrs Ghazel again appearing both without legal representation.
The Commonwealth’s position as advanced by the Solicitor-General on behalf of the Attorney-General was that a potentially polygamous foreign marriage which would have been recognised under Part VA of the Marriage Act prior to the amendments made to the Act in 2004, will still be recognised notwithstanding those amendments, and accordingly, in this case the first Iranian marriage would remain valid under Australian law.
For the reasons which follow, we accept the submissions of the
Solicitor-General in support of the Commonwealth’s position, with the result that the appeal will succeed. The orders which we will make as a consequence of the success of the appeal will be later discussed.
The relevant provisions of the Marriage Act
The Marriage Act as originally passed contained no provision in relation to the recognition in Australia of the validity of a marriage solemnised in a foreign country. Nor did the Act originally contain any definition of “marriage”.
The question as to whether a foreign marriage would be recognised as valid in Australia required the application of the common law rules of private international law until 7 April 1986 when Part VA (s 88A – s 88G), which had been inserted into the Marriage Act by the Marriage Amendment Act 1985, commenced. The object of Part VA (as stated in s 88A) is “to give effect to Chapter II of the Convention on Celebration and Recognition of the Validity of Marriages signed at The Hague on 14 March 1978.”
For present purposes the essential provisions of Part VA (following the objects (s 88A) and interpretation (s 88B) sections) originally were and still remain (subject to later additional provisions):
·Section 88C, which is an application provision, provides that Part VA applies to foreign marriages, which are solemnised both before and after the commencement of the Part, where the marriage was recognised as valid under the relevant foreign law at the time it was solemnised or is so recognised at the time at which the validity of the marriage falls to be determined.
·
Section 88D then provides that a marriage to which the Part applies
(that is, applies pursuant to s 88C) shall be recognised in Australia as valid subject to certain exceptions, being:
- that at the time of the marriage one of the parties was a party to a marriage with some other person and that marriage would be recognised in Australia (s 88D(2)(a));
- at the time of the marriage (and depending on their domicile) one or both of the parties was not of marriageable age (as provided elsewhere in the Act) (s 88D(2)(b) and s 88D(3));
- that the parties are within a prohibited relationship (as provided elsewhere in the Act) (s 88D(2)(c)); or
-
that the consent of either of the parties was not a real consent
(as provided elsewhere in the Act) (s 88D(2)(d)).
·Section 88E then provides for the recognition of foreign marriages in Australia which, while not required to be recognised under Part VA, would be recognised as valid under the common law rules of private international law.
Significantly, however, for present purposes, the Marriage Amendment Act 2004 inserted into the definition section of the principal Act (s 5(1)) for the first time the following definition of “marriage”:
marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.
In addition the 2004 amending Act inserted into the interpretation section of Part VA (s 88B) the following subsection:
(4) To avoid doubt, in this Part (including section 88E) marriage has the meaning given by subsection 5(1).
The following new section was also inserted into Part VA by the
2004 amending Act:
88EA Certain unions are not marriages
A union solemnised in a foreign country between:
(a)A man and another man; or
(b)A woman and another woman;
must not be recognised as a marriage in Australia.
Commentary on 2004 amendments relied on by the primary judge
Within two years of the passage of the Marriage Amendment Act 2004,
Dr Anthony Dickey QC in an article in the Australian Law Journal ((2006) 80 ALJ 288-9) expressed the view that although the definition of marriage was inserted into the Marriage Act in 2004 “primarily to ensure that the only marriages recognisable in Australia are heterosexual, and not homosexual, unions”, the ambit of the provision “is wider than that”, and that the result of the importation of the definition of marriage in s 5(1) of the Marriage Act into Part VA by s 88B(4) “would seem to be that the only foreign marriages that are recognisable under Part VA are those involving ‘the union of a man and a woman to the exclusion of all others’.”
Dr Dickey considered that “[t]here can be no doubt that the definition of ‘marriage’ in s 5(1) excludes polygamous marriages; that is, marriages where a man is entitled to marry more than one wife”. After some further discussion of the meaning of the expression “the union of a man and a woman to the exclusion of all others”, he concluded that this was also the situation in relation to what he termed “a potentially polygamous marriage”, by which, as he explained, he meant “a marriage where a man can ordinarily marry only one wife but where in certain circumstances he may marry more than one wife.”
Similar views to those expressed by Dr Dickey have now been expressed in the following paragraphs in the 9th edition of Nygh’s Conflict of Laws in Australia (Ed. Davies, Bell and Brereton) where, it will be seen, reference is made to
Dr Dickey’s article:
24.45 Part VA of the Marriage Act, dealing with the recognition of foreign marriages, applies to all marriages celebrated outside Australia, whether before or after the commencement of the Marriage (Amendment) Act 1985 (Cth) on 7 April 1986. [[93] Marriage Act 1961 (Cth) s 88C(1).] Formerly, it was thought that although polygamous marriages were not specifically included, they must be considered to be ‘marriages’ for the purposes of
Pt VA, even if at common law no matrimonial relief could have been granted in respect of them. [[94] Mohamed v Knott [1969] 1 QB 1.] However, it is now provided that in Pt VA ‘marriage’ has the statutory meaning and accordingly is limited to monogamous marriages.
[[95] Marriage Act 1961 (Cth) s 88B(4), introduced by the 2004 amendments.] The 2004 amendments to the Marriage Act and in particular the express incorporation of the definition in Pt VA now have the consequence that a polygamous marriage is not recognisable in Australia under Part VA. [[96] See A Dickey, ‘Recognition of Potentially Polygamous Marriages’ (2006) 80 ALJ 288.]24.53 … Although there is no express prohibition on the recognition of a polygamous marriage (as there is for a same-sex marriage [[118] Marriage Act 1961 (Cth) s 88EA.)] the incorporation of the statutory definition into Pt VA of the Marriage Act has the effect that a polygamous marriage is outside the concept of marriage for the purposes of recognition, subject to specific exceptions for the purposes of other Commonwealth and state laws that provide for recognition of marriages, or unions in the nature of marriage, for their own particular purposes.[[119] Marriage Act 1961 (Cth) s 88E(3), (4). Family Law Act 1975 (Cth) s 6 is an example: see 24.55.]
It will be recalled that in the present case the primary judge relied on the views expressed in the 9th edition of Nygh in reaching her decision that the Iranian marriage of Mr Ghazel and Mrs Ghazel could not be recognised as a valid marriage, in this country. She certainly cannot be criticised for so doing, particularly given that it was acknowledged before us by the Solicitor-General, that the views of the learned commentators are not without some force.
However, it was the position of the Commonwealth, while acknowledging the apparent tension between the 2004 amendments and the balance of Part VA, that the better view is that those amendments do not alter the law in the way in which Dickey and Nygh (9th edition) contend. Rather the Commonwealth’s position was that a potentially polygamous marriage, which would have been recognised under Part VA before the 2004 amendments, will continue to be recognised under that Part. We turn now to consider more fully the submissions of the Solicitor-General in support of this position.
Consideration of the Commonwealth’s submissions
The Solicitor-General emphasised in both his written and oral submissions that the only question to be decided in this case is whether a potentially polygamous marriage (as opposed to an actually polygamous marriage) will be recognised as valid under Part VA of the Marriage Act, and this is how we have formulated the question for decision at the commencement of these reasons.
In order to establish that the 2004 amendments to the Marriage Act did not operate to deny recognition to a potentially polygamous marriage, it was important for the purposes of the Commonwealth’s argument to establish that such a marriage would have been recognised under the provisions of Part VA of the Marriage Act prior to their amendment in 2004. A substantial portion of the oral and written submissions of the Solicitor-General was therefore devoted to establishing that position.
Before considering the submissions directed to Part VA as it stood prior to 2004, we mention that there was also reference in the Solicitor-General’s submissions to the common law rules of private international law in relation to the recognition of foreign marriages, with the submission being that as a general rule a potentially polygamous marriage would be recognised if the marriage was valid in form according to the law of the place of its celebration and if the parties had the capacity to marry each other under the law of their respective ante-nuptial domiciles. However, as was acknowledged by the Solicitor-General, no findings have been made in this case in relation to the parties’ ante-nuptial domiciles, and therefore for present purposes the position under the rules of private international law can only provide background to the provisions of Part VA.
Returning then to the provisions of Part VA (and without regard at this stage to the amendments made in 2004), it was the Commonwealth’s submission that a consideration of the text of the essential sections of the Part (which are
earlier identified at [23] of these reasons) reveal that they introduced a
“default recognition rule” in the sense that s 88C (summarised earlier at [23]) provides as the primary rule that if a foreign marriage was valid under the law of the place of celebration at the time of the marriage (or later when its validity falls for determination), it will be recognised in Australia pursuant to s 88D(1), and that that primary rule must apply unless one of the exceptions contained in
s 88D(2)-(5) applies. (Section 88D(1) and the exceptions contained in
s 88D(2)-(5) are also summarised earlier at [23] of these reasons).
A potentially polygamous marriage is not expressly included in the exceptions to the primary, or general, rule of recognition contained in s 88D(1). It might however be thought, as was canvassed by the Solicitor-General, that the exception contained in s 88D(2)(a), being that one of the parties to the subject marriage was at the time of the marriage married to another person,
would include a potentially polygamous marriage. But as explained by the
Solicitor-General, that exception (which he described as “a first in time rule”) would only preclude recognition of a second marriage not of a first potentially polygamous marriage.
It will be useful at this point to include the following paragraph from the Solicitor-General’s written outline of argument which contains a summary of his submissions, which were directed to the text of Part VA as it was enacted, and which we find persuasive:
… it is evident from the text of Pt VA as enacted that a potentially polygamous marriage is capable of recognition under s 88D(1). Specifically, where a marriage is valid under the lex loci celebrationis, the fact that it is potentially polygamous at the time of celebration does not deny it recognition. Nor will the marriage’s potentially polygamous character, or one party’s entry into another marriage, operate to strip it of recognition thereafter.
To support this interpretation of Part VA based on its text, the Solicitor-General also relied on the Hague Convention on the recognition of marriages, to which, as earlier explained, Part VA is intended to give effect, and also on the Explanatory Memorandum and the parliamentary debates in relation to the Marriage Amendment Bill 1985 which introduced Part VA into the principal Act.
So far as the Convention is concerned, and having regard to the extensive submissions made by the Solicitor-General in relation both to its text and to its Explanatory Report and background working documents, we are satisfied that potentially polygamous marriages which are valid under the law of the place of celebration are prima facie required to be recognised by parties to the Convention, and that Part VA should be interpreted accordingly.
Similarly, we are satisfied that the Explanatory Memorandum in relation to the Marriage Amendment Bill 1985 (which contains no suggestion that potentially polygamous marriages are not to be recognised in Australia), and
(more significantly as the Solicitor-General submitted) the Senate debates on that Bill indicate that potentially polygamous marriages were to be regarded as marriages for the purposes of the general, or primary, rule of recognition in Part VA.
Overall, therefore we accept on the basis of the Solicitor-General’s submissions and the material to which he took us, that prior to the 2004 amendments to the Marriage Act, a potentially polygamous marriage if recognised as valid in its place of celebration would be recognised as valid in Australia unless in the particular circumstances of the case one of the exceptions in s 88D(2)-(5) applied.
The question in this appeal is, however, whether the 2004 amendments to
Part VA (set out earlier at [23]-[25]) changed this position. In the Commonwealth’s submission, they did not, and we therefore now turn to consider the arguments in support of that submission.
While the Solicitor-General acknowledged, as we have previously indicated, that there was some force in what might be called the literal view contended for by Dr Dickey and the editors of the current edition of Nygh, and that there is “some tension” between the original provisions of Part VA and the provisions inserted into it in 2004, he advanced the following submissions, which he described as the primary submissions, in support of the Commonwealth’s position that potentially polygamous marriages remain recognisable in Australia notwithstanding the 2004 amendments.
The first of these primary submissions was directed to the wording of s 88B(4) which was inserted by 2004 amendments, and which states that “[t]o avoid doubt” the new definition of “marriage” inserted into s 5(1) of the Marriage Act also applied to the term “marriage” when used in Part VA, with the Solicitor-General posing the question as to what was the doubt which was required to be removed?
The answer which the Solicitor-General provided to this question was that there was no doubt at the time on the basis of what he described as the parliamentary material, that marriage included a potentially polygamous marriage, rather the doubt was whether marriage extended to unions between a man and a man or a woman and a woman. The parliamentary material referred to in this context was the Explanatory Memorandum to the 2004 Marriage Amendment Bill, the Second Reading speech in relation to that Bill, and the parliamentary debates on the Bill, all of which, we are satisfied, are entirely focused on the issue of same-sex marriages and none of which contains any reference to polygamous marriages.
In the course of these primary submissions, the Solicitor-General also drew attention to the fact that the 2004 amendments did not make any alteration to
s 88A which provides that the object of Part VA is to give effect to the
Hague Convention on the recognition of marriages. It will be recalled that the earlier submissions of the Solicitor-General established that potentially polygamous marriages are not to be denied recognition under the Convention, and accordingly, his submission in the present context was that if it had been intended that the 2004 amendments were to alter this position, that intention would have been made clear in the text of the amending legislation and in the various extrinsic parliamentary materials earlier referred to, but no such intention is manifested.
The concluding primary submission, as expressed in the written submissions, for the Commonwealth, was that “where Parliament clearly did not contemplate that the 2004 amendments would affect any [marriages other than same sex marriages] this Court should strive against a construction that would have … broader ramifications”. We agree with that submission.
A final submission by the Solicitor-General in relation to the effect of the 2004 amendments, and which he described as “a fall back” submission, was that the words “to the exclusion of all others” in the definition of marriage inserted into the Marriage Act in 2004 (and on which the arguments of the commentators for the exclusion from recognition under Part VA of even potentially polygamous marriages are based) could apply to a potentially polygamous marriage. This would be because a marriage which is potentially polygamous at the outset, is still to “the exclusion of all others” as a matter of fact until it becomes actually polygamous, but even that fact would not alter its recognition for the reasons earlier explained.
Despite the description of this last submission by the Solicitor-General as
“a fall back” submission, it does, in our view, provide some further support for the conclusion, that potentially polygamous marriages can be recognised under Part VA.
Conclusion and proposed orders
As will have emerged from what has already been said, we accept the submissions of the Solicitor-General in support of the Commonwealth’s position that a potentially polygamous marriage is a marriage that can still be recognised as valid under Part VA of the Marriage Act notwithstanding the 2004 amendments. Accordingly, we conclude that the decision of the primary judge (who did not, of course, have the benefit of the Solicitor-General’s submissions) that the Iranian marriage of Mr Ghazel and Mrs Ghazel could not be recognised as a valid marriage in this country, was wrong.
We will therefore allow the appeal against her Honour’s order dismissing
Mrs Ghazel’s application for a declaration of validity of the Iranian marriage, and we will set aside that order.
In the orders sought in her notice of appeal, Mrs Ghazel sought a declaration of validity of the Iranian marriage. We see no reason, against the background of what has been said earlier in these reasons, why we should not now make that declaration.
We will do so on the basis that we have accepted first, that a potentially polygamous marriage will be recognised in this country unless one of the exceptions contained in s 88D(2)-(5) applies, and secondly, that in relation to the only one of those exceptions which might apply, being that contained in
s 88D(2)(a), that exception would not apply to a first marriage, which is potentially polygamous. We also take into account that neither Mr Ghazel or Mrs Ghazel has suggested to us that there has been any change in the status of the marriage in Iran as it was recorded in the documents from the Iranian Court which were before the primary judge. We will therefore make the declaration of validity sought by Mrs Ghazel.
At the conclusion of the hearing on 26 November 2015, we received brief submissions in relation to the costs of the appeal from Mr Ghazel and
Mrs Ghazel. The Solicitor-General did not wish to be heard on the issue of costs.
Although both Mr Ghazel and Mrs Ghazel were self-represented before us, we understood that they both may have taken some legal advice in relation to the appeal. Mrs Ghazel would also have had the costs of the appeal book.
Although this appeal was concerned with the interpretation of provisions of the Marriage Act, the appeal was a proceeding under the Family Law Act. As such the general rule in s 117(1) of that latter Act that each party to proceedings under the Act should bear their own costs of such proceedings, would apply unless the Court considers that a costs order in favour of either party would be justified.
We did not understand either party to seek such an order, which could not, in any event, be justified given the issues with which the appeal was concerned. However, given those issues, and the success of the appeal, we would be prepared to grant both parties costs certificates under the Federal Proceedings (Costs) Act1981 (Cth) by virtue of which they may be able to recover any legal costs which they have incurred in respect of the appeal.
Any costs incurred by the parties in the proceedings before Hogan J would be a matter for an application to her Honour.
I certify that the preceding fifty eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 4 March 2016.
Associate:
Date: 4 March 2016