KIRKBY & KIRKBY
[2017] FamCA 884
•9 October 2017
FAMILY COURT OF AUSTRALIA
| KIRKBY & KIRKBY | [2017] FamCA 884 |
| FAMILY LAW – MARRIAGE – NULLITY – Application for declaration of nullity of marriage – Where the marriage was solemnised overseas – Where at the time of the marriage ceremony the respondent was already married – Where it is found that the marriage was therefore void – Declaration of nullity granted. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) Marriage Act 1961 (Cth) |
| Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 FamLR 123 In the marriage of Teves III and Campomayor (1995) FLC 92-578 Stephens & Stephens (2010) 44 Fam LR 117 |
| APPLICANT: | Mr Kirkby |
| RESPONDENT: | Ms Kirkby |
| FILE NUMBER: | BRC | 893 | of | 2016 |
| DATE DELIVERED: | 9 October 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 3 October 2017 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Eric Muir Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Fraser (appearing pro bono) |
| SOLICITOR FOR THE RESPONDENT: | Gold Coast Community Legal Centre & Advice Bureau Inc |
Order
It is declared that the marriage solemnised between Mr Kirkby and Ms Kirkby (formerly known as … and …) on … 2002 is void.
A decree of nullity in relation to that marriage is granted.
The respondent is to pay the applicant’s costs fixed in the sum of $2,500 on or before 9 April 2018.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kirkby & Kirkby has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 893 of 2016
| Mr Kirkby |
Applicant
And
| Ms Kirkby |
Respondent
REASONS FOR JUDGMENT
The applicant seeks a declaration that the marriage ceremony entered into between him and the respondent in Egypt in March 2002 is void and for a decree of nullity to be granted. The application is not opposed by the respondent nor is any material relied upon by her in the application.
background
The applicant and respondent met for the first time in March 2002 and were married in Egypt later that same month. At the time of the marriage the applicant was divorced from his first wife and the respondent represented that she had not been married.
The applicant contends that he was unaware until January 2003 that the respondent already had two children, C born in 1995 and D born in 1998, whom she had left with their father in Egypt upon coming to join the applicant in Australia in August 2002.
When the parties separated in 2015, having had two children together, the applicant contends that he made enquiries in Egypt and discovered that at the time of his marriage to the respondent in 2002, she was in fact still married to the father of her other children. The applicant retained agents in Egypt to search the public records and produces a certified copy and translation of a Certificate of Marriage Registration between the respondent and Mr E on in 1995. No evidence of divorce was able to be located.
While there are other factual matters addressed in the applicant’s affidavit the primary basis for his application is based upon the fact of prior marriage.
applicable law
The application purports to be made pursuant to s 51 of the Family Law Act 1975 (Cth) (“the Act”), where the only ground upon which a decree of nullity may be granted is that the marriage is void.
While there is no definition of the word ‘void’ in the Act, most applications of this type rely upon s 23B(1) of the Marriage Act 1961 (Cth) (“the Marriage Act”) which provides:
(1)A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:
(a)either of the parties is, at the time of the marriage, lawfully married to some other person;
(b)the parties are within a prohibited relationship;
(c)by reason of section 48 the marriage is not a valid marriage;
(d)the consent of either of the parties is not a real consent because:
(i)it was obtained by duress or fraud;
(ii)that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
(iii)that party is mentally incapable of understanding the nature and effect of the marriage ceremony; or
(e)either of the parties is not of marriageable age;
and not otherwise.
(emphasis added)
However the Part of the Marriage Act in which s 23B is contained only applies to marriages solemnised in Australia or those under Part V of the Marriage Act (namely, marriages of members of the defence force overseas). It does not apply to the circumstances of this case as the marriage in question was solemnised in Egypt[1].
[1]In the marriage of Teves III and Campomayor [1994] FamCA 57; (1995) FLC 92-578; Zau & Ruk [2014] FamCA 709 per Macmillan J
So then, what does ‘void’ mean in the context of this application?
In Victoria v Sutton[2] the High Court observed the difficulty arising with the use of the term ‘void’. Gaudron, Gummow and Hayne JJ said:
38. Windeyer J said of the term "void" that it "has never been an easy word" and pointed out that it did not necessarily mean that the void act had no legal effect at all. In particular, where (as here) a disposition between two parties is described as "void" at the will of a third, the preferred construction is to read "void" as "voidable".
(footnotes omitted)
[2] [1998] HCA 56; (1998) 195 CLR 291
Kirby J adopted the submissions put by the respondent in that case as to the problems created by the term ‘void’ which relevantly stated:
95. …
1. The word "void" is inherently ambiguous. It sometimes means that the act in question has not, and never has had, any legal effect (void ab initio). But sometimes it means that the act becomes void as against the world or against those who cannot enforce or take advantage of it subsequently (void ex post facto). "Void" is in some contexts treated as synonymous with "voidable" or voidable at the election of the party for whose benefit a legal rule makes the transaction void. The task of a court, in differentiating between the available meanings of the word, is to ascertain the objective of the lawmaker in the particular circumstances. It is to discover the meaning to be attributed to the word which is natural to its context. Many past cases demonstrate that the use of the word "void" presents a problem of statutory construction. There is no settled meaning.
(footnotes omitted)
In considering the meaning intended to be attributed to the term ‘void’ as it is used in s 51 of the Act some assistance may be found in Part VA of the Marriage Act which sets out the circumstances in which foreign marriages may be recognised as valid under Australian law although the term ‘void’ is not used.
Relevantly, s 88C of the Marriage Act provides:
Application of Part
(1)This Part applies to and in relation to every marriage solemnised, whether before or after the commencement of this Part, in a foreign country where:
(a)under the local law, the marriage was, at the time when it was solemnised, recognised as valid; or
(b)…
…
Relevantly, s 88D of the Marriage Act provides:
Validity of marriages
(1)Subject to this section, a marriage to which this Part applies shall be recognised in Australia as valid.
(2)A marriage to which this Part applies shall not be recognised as valid in accordance with subsection (1) if:
(a)either of the parties was, at the time of the marriage, a party to a marriage with some other person and the last-mentioned marriage was, at that time, recognised in Australia as valid;
…
(emphasis added)
In Teves III and Campomayor [3] Lindenmayer J found, in similar circumstances, that a declaration of nullity i.e. that the marriage was void, could be made. His Honour said[4]:
At first I had some difficulty in accepting that submission because nowhere in Part VA of the Marriage Act is it provided that a marriage entered into in a foreign country is "void", for the purposes of Australian law, in circumstances defined in s.88D(2), but only that in those circumstances it "shall not be recognized [in Australia] as valid" (emphasis added). This may be contrasted with ss.23 and 23B, which provide that a marriage to which either of those sections directly applies "is void" in those circumstances. However, on reflection, I think that the submission is a sound one because it is inconceivable that in circumstances where a court of this country, exercising the judicial power of the Commonwealth, is obliged by a valid statute of the Commonwealth not to recognize, as valid, a marriage solemnized in a foreign country, that court could refuse to declare the marriage invalid (which is all a decree of nullity does) at the suit of one of the parties to that marriage who has properly invoked the court's jurisdiction to make such a declaration, merely because the section under which the application is brought uses the expression "void" as the basis for a nullity application rather than , say "invalid" or "not valid". In short, I conclude that if, in accordance with s.88D(2) of the Marriage Act, a marriage solemnized outside Australia is one which is required not be recognized in Australia as valid, then it is "void" within the meaning of that term as used in s.51 of the Family Law Act.
Some support for that conclusion may be obtained from s.88F of the Marriage Act which provides:"Notwithstanding any other law, the question whether a marriage solemnized in a foreign country is to be recognized in Australia as valid shall be determined in accordance with the provisions of this Part, whether or not the determination of the question is incidental to the determination of another question".
[3] (1995) FLC 92-578
[4] At 81,734
With respect I adopt that reasoning.
However, I find myself in the same position as Lindenmayer J in Teves[5] and Macmillan J Zau & Ruk[6] in that I have no expert evidence before me as to the validity of the marriage in the foreign jurisdiction. Yet, as observed in both cases, s 88G of the Marriage Act provides an evidentiary basis for finding that the marriage in question was valid under the local law (at least on a prima facie basis) and sufficient for the purposes of s88D(2) of the Marriage Act.
[5] supra
[6] supra
Section 88G of the Marriage Act provides:
Evidence
(1)A document purporting to be either the original or a certified copy of a certificate, entry or record of a marriage alleged to have been solemnised in, or under the law of, a foreign country and purporting to have been issued by:
(a)in the case of a marriage alleged to have been solemnised in a foreign country--an authority of that country or of that part of the country in which the marriage was allegedly solemnised; or
(b)in the case of a marriage alleged to have been solemnised under the law of a foreign country--an authority of that country;
is, for all purposes, prima facie evidence of the facts stated in the document and of the validity of the marriage to which the document relates.
Accordingly, I am satisfied that at the time of the marriage ceremony to the applicant, the respondent was already married, and thus the marriage to the applicant was not valid and is therefore void.
costs application
At the conclusion of the hearing the applicant sought costs of and incidental to the application. Each party made submissions.
how costs applications are determined
In this jurisdiction parties are generally required to bear their own costs[7]. However, where justifying circumstances exist, s 117(2) of the Act empowers the Court to make such order for costs as the Court considers just.
[7] Section 117(1) Family Law Act 1975 (Cth)
In the exercise of that discretion regard must be had to the factors set out in s 117(2A) of the Act, so far as they are relevant.
Those factors are as follows:
a)the financial circumstances of each of the parties to the proceedings;
b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
g)such other matters as the court considers relevant.
No one factor has more weight than any other nor is it necessary for more than one factor to be present[8].
[8] see Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 FamLR 123 at 130
When discussing the subparagraphs in s 117 of the Act the High Court in Penfold v Penfold[9] said:
It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in “a clear case”.
[9] [1980] HCA 4; (1980) 144 CLR 311 at 315
When considering what specific order to make, Rule 19.18 of the Family Law Rules 2004 (Cth) (“the Rules”) empowers the Court to make an order:
a)of a specific amount;
b)as assessed on a particular basis (eg lawyer and client, party/party or indemnity);
c)to be calculated in accordance with the method stated in the order; or
d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.
In considering what specific order should be made the same Rule provides that the Court may consider any of the following factors:
a)the importance, complexity or difficulty of the issues;
b)the reasonableness of each party's behaviour in the case;
c)the rates ordinarily payable to lawyers in comparable cases;
d)whether a lawyer's conduct has been improper or unreasonable;
e)the time properly spent on the case, or in complying with pre-action procedures; and
f)expenses properly paid or payable.
The term ‘costs’ is not defined in the Act but the Dictionary to the Rules provides that:
Costs means an amount paid or to be paid for work done by a lawyer, and includes expenses.
The term ‘expenses’ is also defined in the Dictionary to the Rules:
Expense means an amount paid to a third party, other than a lawyer, for work done in a case or services provided for a party.
In Stephens & Stephens[10] the Full Court observed:
67. We also observe that in Re JJT; Ex parte Victoria Legal Aid[1998] HCA 44; (1998) 195 CLR 184 the majority of the High Court (Gaudron, Gummow, Hayne and Callinan JJ, Kirby J dissenting) held that s 117(2) of the Act referred to costs in the conventional sense and thus to the payment by one party to litigation of money by way of a partial indemnity for professional legal fees and expenses actually incurred by another party in the course of the litigation: see Hayne J at 219. An order for costs is made to compensate a party against expense incurred in litigation and is not punitive in nature. Costs are not a penalty or damages: Latoudis v Casey[1990] HCA 59; (1990) 170 CLR 534 per Mason CJ at 543 and McHugh J at 567; Ruddock and Ors v Vadarlis and Ors(2001) 188 ALR 143 per Full Court of the Federal Court at [12] and Brott and Joachim [2006] FamCA 256; (2006) FLC 93-259 per Full Court (Holden, Warnick and Boland JJ) at 80,403-404.
[10][2010] FamCAFC 172; (2010) 44 Fam LR 117
It is of course well established that impecuniosity is not, of itself, a bar to a costs order[11].
[11]Lenova & Lenova (Costs) [2011] FamCAFC 141
discussion
It can be observed from the history of this application that it took a long time for the applicant to put together his evidence in an appropriate form. There have been numerous appearances. It can also be observed that the respondent initially opposed the application.
The application has ultimately succeeded at no doubt considerable expense to the applicant. For instance, the filing fee is considerable even where circumstances of financial hardship are established[12]. The applicant has been legally represented throughout.
[12] $410 with a government concession card or $1,225 without
It is submitted on behalf of the respondent that no order for costs should be made because the application was one that had to be determined by the court even if the respondent had not initially opposed it and it is said that the respondent is impecunious. The respondent is represented at the hearing only because her legal representatives appear on a pro bono basis.
It must be observed that the application arises as a result of the respondent marrying the applicant when she was already married. The applicant would not have incurred the cost of this application but for that fact.
In my view the circumstances justify a costs order being made and having regard to schedule 3 of the Rules I consider a sum of $2,500 to be a just amount. I will allow the respondent six months to pay.
whether a referral to appropriate authorities should be made
If it is considered that an offence may have been committed this Court should refer the matter to appropriate authorities[13].
[13]T and T (1984) FLC 91-588
However, I accept the submission made on behalf of the respondent that the offence of bigamy does not arise in the circumstances of this case as the marriage was not solemnised in Australia[14].
[14] See ss 8 and 94 of the Marriage Act
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 9 October 2017.
Associate:
Date: 9 October 2017
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