Harroun & Galla

[2021] FamCAFC 147

FAMILY COURT OF AUSTRALIA

Harroun & Galla [2021] FamCAFC 147

Appeal from:

Galla & Harroun [2021] FCCA 576

Appeal number(s):

EAA 26 of 2021

File number(s):

PAC 3822 of 2020

Judgment of:

AINSLIE-WALLACE J

Date of judgment:

1 July 2021

Catchwords:

FAMILY LAW – APPEAL – DIVORCE Where the wife appeals a divorce order – Where the wife says the parties were never legally married – Whether there was a valid marriage –Where the respondent conceded that the appeal should be allowed – Where the appeal is allowed – Where costs certificates ordered.  

Legislation:

 Family Law Act 1975 (Cth)

Federal Proceedings (Costs) Act1981 ss 6, 8 and 9

Cases cited:

Cramer v Davies (1997) 72 ALJR 146

Warren v Coombes (1978-1979) 142 CLR 53

Division:

Appeal Division

Number of paragraphs:

16

Date of hearing:

1 July 2021

Place:

Sydney

The Applicant:

In person

ORDERS

EAA 26 of 2021
PAC 3822 of 2020

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MS HARROUN

Appellant

AND:

MR GALLA

Respondent

ORDER MADE BY:	AINSLIE-WALLACE J
DATE OF ORDER:	1 JULY 2021

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The orders made on 23 February 2021 be set aside.

3.The proceedings be remitted for rehearing by another judge of the Federal Circuit Court.

4.That the Court grants to the appellant wife a costs certificate pursuant to the provisions 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 her in relation to the appeal.

5.That the Court grants to the respondent husband 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 him in relation to the appeal.

That the Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 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 each of the parties in respect of the costs incurred by the appellant and respondent in relation to the rehearing of the 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

AINSLIE-WALLACE J

1. By a Notice of Appeal filed on 22 March 2021, Ms Harroun (“the appellant”) appealed from a divorce order made by Federal Circuit Court judge on 23 February 2021.  The appellant contended before the primary judge that there had been no marriage.

2. While the respondent resisted the appeal at first, when the appeal came on for hearing, counsel for the respondent sensibly and properly conceded that the appeal should be allowed.  Thus the primary judge’s order was set aside and costs certificates for both the appeal and a rehearing were ordered.  These are the reasons for making those orders.

3. First, however, it is useful to give some context both to the hearing before the primary judge and the appeal.

4. The appellant is from Country B and met the respondent in Australia where she was then living.  They formed a relationship and she became pregnant in late November 2017.  The appellant had planned a trip home at the end of 2017 and the respondent and his family joined her in early 2018.

5. The parties returned to Australia.  Their relationship soured and they separated.  The respondent applied for a divorce, the appellant opposed it contending that she had not been married and had not consented to being married.  The respondent asserted that they had in fact been married.

6. A ceremony or number of activities took place between the appellant, her family and the respondent whilst they were in Country B.  There is a dispute as to what those activities signified. The respondent contended it was a marriage ceremony, the appellant said it was a ceremony preliminary to a marriage.  She deposed that when the respondent and his family were leaving they requested a certificate attesting to a traditional marriage but, the appellant said, it was explained to them that it would not be issued until the parties were officially married.  She said that the respondent and his family pressed for a signed certificate which would only be lodged at a mosque in Country B once the parties were officially married.  The appellant agreed.  That document was not lodged at a mosque, either in Country B or in Australia. 

7. The application for divorce was thus contested and it was listed for hearing on 23 February 2021 on which date the appellant was unrepresented.

8. It appears from the transcript that two affidavits had been served on the appellant on the afternoon before the hearing.  Those affidavits are from two people in Country B, one an Imam, both attest to the parties being married in Country B.

9. At the hearing, the following exchange occurred between the appellant and the primary judge.

   HIS HONOUR: There was a – it appears as a marriage.  There’s a marriage certificate.  You say that it’s not valid because it’s not registered but it’s still a marriage.

   [Appellant]: Your Honour, it’s not a marriage.  It was a traditional engagement and the affidavit was submitted yesterday.  I just received that yesterday.  The person that’s – whose affidavit that – ..... they call them.  That said I wedded myself and Mr Galla.  We spoke to this ..... because of time difference there’s about 18 to 19 hours time difference, I had to stay up till late to speak to this man myself and my family because my grandfather is actually the chairman of the Mosque.  So he is saying that he did not write the affidavit and it’s quite ..... ‑ ‑ ‑

   HIS HONOUR:   ..... sworn in front of a – this is sworn in front of a notary public ..... ‑ ‑ ‑

   [Appellant]:   Yes.  I was told that there should be a stamp on the affidavit from the Mosque if it’s someone from the Mosque ..... the affidavit.  However, I think ..... ‑ ‑ ‑

   HIS HONOUR:   Based on the information I’ve got ‑ ‑ ‑ … there was a marriage.  I have got a marriage certificate here.  …There’s a separation.  There’s jurisdiction.  There’s a child of the relationship whose needs are being met or there has been appropriate things put in place for the child’s welfare and care.  If you want to say, down the track – the issue that I’ve got at the moment, on the material that I’ve got, there is a marriage. 

   [Appellant]:   Yes, your Honour.  However, there is no marriage.  It’s not acknowledged in Country B.  That’s why I submitted the letter from Department of Registry and Marriage and Civilians because we have inquire with them on several occasions.  Yes, there is traditional engagement.  So there is a three process in marriage in ..... ‑ ‑ ‑

   HIS HONOUR:   No.  But I’ve got a certificate of marriage. 

   [Appellant]:   Yes.  That’s not valid and also, I have contacted the court of Country B.  They have actually said it’s not valid and in order for me to register the marriage I have to go to the High Court, however it has been two years so they can’t register the marriage and it’s not valid.  That’s what I was told. 

   HIS HONOUR:   All right.  I’m going to have to – I’m going to grant the divorce …

10. The primary judge’s reasons for decision comprise three paragraphs:

    1. This is a matter that comes before the Court today, in a contested divorce application. The Court has viewed a marriage certificate that was filed on

    
    

    29 July 2020.  There are affidavits that have been filed on behalf of the Applicant and Respondent. The Respondent says that there was not a marriage.  There is a Marriage Certificate. The Court has considered the affidavit filed by the Respondent.  The Affidavit sworn or affirmed on 20 November 2020 and filed on 2 December 2020 attaches a certificate saying that there is no registration of the marriage.  There is a Marriage Certificate.

    2. The Court has read an Affidavit sworn by the Imam who performed the marriage saying that the parties are married and has read an affidavit of a witness saying that they were present and saw them married.  The witness deposes to being present at the marriage and seeing the Certificate of Marriage.

    3. The Court firstly finds that there is a marriage. The Court finds jurisdiction. The Court finds that the marriage has irretrievably broken down and there is a child of the marriage to which the appropriate arrangements have been made for the child’s provision.

11. The grounds of appeal contend that the primary judge failed to afford the appellant an opportunity of answering the recently filed evidence, in short failed to afford her procedural fairness.  The transcript before the primary judge clearly demonstrates that the appellant had attempted to obtain evidence to rebut the assertions made in the late filed affidavits.  It is also clear that she was attempting to explain this to the primary judge and to explain that there was no official stamp placed on the marriage certificate. However, the primary judge continued to speak over her and moved without more to make the divorce order.

12. The appellant by Application in an Appeal sought to adduce the evidence which, had she been permitted, she would have adduced in the hearing before the primary judge.  That evidence comprises two affidavits; one of her father and from another relative who was present at the ceremony that the respondent asserted was a marriage.  Each of those witnesses assert that the parties were involved in an engagement ceremony, not a marriage ceremony.

13. Although not raised as a ground of appeal, it is clear from the primary judge’s reasons that he failed to engage with the dispute raised in the hearing and, rather he based his decision on there being a marriage certificate.  However, the point of the appellant’s argument before him went to the authenticity of the certificate.  Regrettably in this way he erred.  This error, as I say was not raised by the appellant but to fail to raise it and allow it to stand unchallenged would be to perpetuate the primary judge’s error in “a complete denial of the appellate process” (Warren v Coombes (1978-1979) 142 CLR 53 at page 19).

14. Thus when the matter came on for hearing, these two frank errors were raised with counsel appearing for the respondent who as I say, on taking instructions, sensibly conceded that the appeal should succeed. 

15. This was not a case where it would be appropriate to make an order for costs inter partes, and no order was sought. Costs certificates were ordered in respect of the appeal and any rehearing.

16. Before costs certificates may be ordered, three matters must be established: namely the existence of a Federal Appeal, that the appeal has been heard and the appeal has succeeded on a question of law.  Here, clearly, the appeal is a Federal Appeal and despite the abbreviated nature of the proceedings, it has been “heard” in the relevant sense, adopting Kirby J’s broad interpretation of that phrase in Cramer v Davies (1997) 72 ALJR 146. As these reasons demonstrate, the appeal succeeded by reasons of errors of law by the primary judge. Thus certificates were ordered.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Ainslie-Wallace J.

Associate: 

Dated:       13 August 2021