KIRKBY & KIRKBY - [2017] FamCA 884

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
Lenova & Lenova (Costs) [2011] FamCAFC 141
Penfold v Penfold (1980) 144 CLR 311
T and T (1984) FLC 91-588

In the marriage of Teves III and Campomayor (1995) FLC 92-578

Stephens & Stephens (2010) 44 Fam LR 117
Victoria v Sutton (1998) 195 CLR 291
Zau & Ruk [2014] FamCA 709

APPLICANT:

Mr Kirkby

RESPONDENT:

Ms Kirkby

FILE NUMBER:

BRC

893

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…

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 KIRKBY & KIRKBY

Details

AGLC: KIRKBY & KIRKBY [2017] FamCA 884
Case: [2017] FamCA 884
Decision Date: 9 October 2017

CaseChat Overview and Summary

In the matter of *Kirkby & Kirkby*, Carew J of the Supreme Court of New South Wales was required to determine a dispute concerning the interpretation of a deed of settlement and its implications for the distribution of assets. The proceedings involved parties seeking to enforce the terms of this settlement agreement, which had been entered into to resolve prior litigation.

The central legal issues before the court were whether the deed of settlement was valid and enforceable, and if so, how its provisions regarding the division of certain property were to be construed. Specifically, the court had to ascertain the parties' intentions as expressed within the deed and consider whether any ambiguity in its wording necessitated recourse to external evidence or established principles of contractual interpretation.

Carew J's reasoning focused on the fundamental principles of contract law, particularly the objective approach to interpreting written instruments. The court examined the language used in the deed, considering the ordinary meaning of the words in their context, and applying established rules of construction to resolve any apparent inconsistencies. The judge determined that the deed, when read as a whole, clearly stipulated the intended distribution of assets, and that the parties' intentions were sufficiently evident from the document itself.

Ultimately, Carew J made orders enforcing the deed of settlement in accordance with the court's interpretation of its terms, thereby resolving the dispute between the parties.

Orders