KADAR and GYUSZI - [2017] FCWA 133

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: KADAR and GYUSZI [2017] FCWA 133

CORAM: O'BRIEN J

HEARD: 16 JUNE 2017

DELIVERED : 17 OCTOBER 2017

FILE NO/S: PTW 3657 of 2016

BETWEEN: MR KADAR
Applicant
AND
MS GYUSZI
Respondent

Catchwords:

DECLARATION - Validity of marriage - Where the parties were married in a refugee camp in circumstances of war - Where it was impossible for the parties to register their marriage in the manner required for it to be recognised pursuant to local law - Where the marriage would be recognised as valid pursuant to common law principles but for the fact that the wife was not of marriageable age at the date the marriage was solemnised - Distinction between exception as to marriageable age where marriage valid under local law, and exception where reliance is placed on common law principles.

Legislation:

Acts Interpretation Act 1901 (Cth), s 15AA
Family Law Act 1975 (Cth), s 113
Evidence Act 1906 (WA), s 71
Marriage Act 1961 (Cth), s 11, s 88C, s 88D, s 88E
Migration Act 1958 (Cth), s 12
Sex Discrimination Amendment Act 1991 (Cth)
Marriage Amendment Bill 1985 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self-Represented Litigant
Respondent: No Appearance

Solicitors:

Applicant: Self-Represented Litigant
Respondent: Self-Represented Litigant

Case(s) referred to in judgment(s):

Arun & Baktahri [2013] FamCA 542
Buciu v Sabau (1997) FLC 92-765
Eldalah [2016] FamCA 1103
Hooshmand and Ghasmezadegan (2000) FLC 93-044
Jacombe v Jacombe (1961) 105 CLR 355
Lester & Lester (2007) FLC 93-308
Milder v Milder [1959] VR 95
Mills v Meeking (1990) 169 CLR 214
Nygh v Kasey [2010] FamCA 145
Perlak Petroleum Maatschappij v Deen [1924] 1 KB 111
Solomon and Hatti (unreported, Supreme Court of New South Wales, Court of Appeal, 10 February 1987)
Trevisan (trustees of the Forli Pty Ltd Superannuation Fund) v Federal Commissioner of Taxation (1991) 101 ALR 26

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Mr Kadar] (“the husband”) filed an application on 27 June 2016 seeking a divorce order to end his marriage to [Ms Gyuszi] (“the wife”). The application was properly served and the wife took no steps to respond or oppose it.
2The application came on for hearing before a Registrar on 2 September 2016 and was adjourned generally, when the Registrar was unable, on the evidence then available, to make the necessary finding that the parties had been validly married.
3On 30 November 2016, the husband filed an application seeking a declaration as to the validity of the marriage. That application was properly served on the wife; again, she has taken no steps to respond or oppose it.
4The application was adjourned on two occasions to give the husband the opportunity to provide the necessary evidence to support it. He was assisted by the court to source a lawyer with the relevant background to advise him.
5The matter came on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading KADAR and GYUSZI

Details

AGLC: KADAR and GYUSZI [2017] FCWA 133
Case: [2017] FCWA 133
Decision Date: 17 OCTOBER 2017

CaseChat Overview and Summary

In the matter of Kadar and Gyuszi, the court was tasked with determining the validity of a marriage that took place in a refugee camp during wartime. The central issue was whether the marriage could be recognised in Australia despite the circumstances of its solemnisation, which did not comply with the requirements of the local law of the country where the marriage occurred. The case also raised questions about the applicability of common law principles to validate the marriage, particularly in light of the wife's age at the time of the ceremony.

The court was required to address two primary legal issues. Firstly, whether the marriage could be considered valid under Australian law despite the absence of formal registration, given the extraordinary circumstances in which it was conducted. Secondly, whether the marriage should be recognised under common law principles, notwithstanding the wife's age at the time of the marriage, which fell below the marriageable age stipulated by local law.

The court examined the exceptional circumstances under which the marriage was conducted and acknowledged that the parties were unable to comply with the local law requirements due to the war and the refugee camp conditions. However, the court distinguished between situations where a marriage is valid under local law but not registered, and situations where reliance must be placed on common law principles. The court held that while the marriage would be recognised under common law due to the extraordinary circumstances, the exception regarding the wife's age was not applicable in this context. The court found that the marriage was invalid because the wife was not of marriageable age at the time the marriage was solemnised, even under the common law exceptions.

The court concluded that the marriage was not valid and therefore could not be recognised in Australia. The judge dismissed the application for a declaration of validity, emphasising the importance of adhering to legal requirements in solemnising a marriage, particularly in relation to the age of the parties.

Orders