Ladue & Magnussen

Case [2022] FedCFamC1F 365

Federal Circuit and Family Court of Australia

(DIVISION 1)

Ladue & Magnussen [2022] FedCFamC1F 365

File number: MLC 272 of 2020
Judgment of: MCGUIRE J
Date of judgment: 26 May 2022
Catchwords: FAMILY LAW – DIVORCE – Where the husband makes an Application for divorce – Where wife opposes the divorce order on the basis that the parties were never married - Application for divorce order is granted
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) s 4

Marriage Act 1961 (Cth) ss 88C, 88D and 88E
Cases cited:

Bahn & Bahn (1981) FLC 91–010

Briginshaw & Briginshaw (1938) 60 CLR 336

Lester & Lester [2007] FamCA 186

Division: Division 1 First Instance
Number of paragraphs: 84
Date of hearing: 21 February 2022, 4 March 2022, 24 March 2022 and 31 March 2022
Place: Melbourne delivered Hobart 
Counsel for the Applicant: Dr Alexander
Solicitor for the Applicant: Clements Family Law
Counsel for the Respondent: Ms Weiner
Solicitor for the Respondent: WMH Lawyers

ORDERS

MLC 272 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR LADUE

Applicant
AND:

MS MAGNUSSEN

Respondent

order made by:

MCGUIRE J

DATE OF ORDER:

26 May 2022

THE COURT FINDS THAT:

1.The parties, Mr Ladue and Ms Magnussen, were validly married in the F Church in City E, Country C in 2006.

2.That the marriage is proved.

3.The applicant, Mr Ladue, was at all material times domiciled in Australia.

4.The ground for the application for a divorce order – namely that the marriage has broken down irretrievably - is proved.

THE COURT, BY ORDER, DECLARES THAT IT IS SATISFIED:

5.The only children of the marriage, as that expression is defined in section 55A(3), who have not attained the age of eighteen years are the children:

(a)U - born 2008;

(b)X - born 2010;

(c)Y - born 2011;

(d)V - born 2014;

(e)Z - born 2016; and

(f)W - born 2018.

6.The Court by Order declared that it was satisfied that the only children of the marriage who have not attained the age of 18 years are the children specified in the order and that proper arrangements in all of the circumstances have been made for the care, welfare and development of the children.

THE COURT FURTHER ORDERS:

7.A divorce Order be made, such divorce order to take effect one month from the date of these Orders being 27 June 2022.

8.Ms Magnussen’s Response to Divorce Application filed 3 August 2020 is dismissed.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an…

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AGLC
Ladue & Magnussen [2022] FedCFamC1F 365
Case
[2022] FedCFamC1F 365
Decision Date

CaseChat Overview and Summary

In the matter of Mr Ladue versus Ms Magnussen, the applicant, Mr Ladue, applied for a divorce order, which was opposed by the respondent, Ms Magnussen, on the basis that the parties were never married. The legal issues before the court were whether the applicant and the respondent were validly married, and whether the marriage had irretrievably broken down. The court found that the applicant and the respondent were validly married in the F Church in City E, Country C in 2006, and that the marriage had irretrievably broken down. The court dismissed the respondent's response to the divorce application and ordered that a divorce order be made, effective one month from the date of the order. The court found that the applicant's evidence was consistent and credible, and that the respondent's evidence was inconsistent and unconvincing. The court also found that the applicant had no motive to dishonestly claim to have been married to the respondent, and that the application for a divorce would be an exercise in futility if there was no marriage. The court further found that proper arrangements had been made for the care, welfare, and development of the six children of the marriage. The court's decision was based on the evidence presented and the applicable law.
The final orders of the court were that a divorce order be made, effective one month from the date of the order, and that the respondent's response to the divorce application be dismissed. The court also declared that the only children of the marriage who had not attained the age of 18 years were the children specified in the order, and that proper arrangements had been made for the care, welfare, and development of the children. The form of the order was subject to the entry in the Court’s records. It was also noted that this copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors, or to record a variation to the order.

Orders

Orders of the court

MLC 272 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR LADUE

Applicant

AND:

MS MAGNUSSEN

Respondent

order made by:

MCGUIRE J

DATE OF ORDER:

26 May 2022

THE COURT FINDS THAT:

1. The parties, Mr Ladue and Ms Magnussen, were validly married in the F Church in City E, Country C in 2006.

2. That the marriage is proved.

3. The applicant, Mr Ladue, was at all material times domiciled in Australia.

4. The ground for the application for a divorce order – namely that the marriage has broken down irretrievably - is proved.

THE COURT, BY ORDER, DECLARES THAT IT IS SATISFIED:

5. The only children of the marriage, as that expression is defined in section 55A(3), who have not attained the age of eighteen years are the children:

(a) U - born 2008;

(b) X - born 2010;

(c) Y - born 2011;

(d) V - born 2014;

(e) Z - born 2016; and

(f) W - born 2018.

6. The Court by Order declared that it was satisfied that the only children of the marriage who have not attained the age of 18 years are the children specified in the order and that proper arrangements in all of the circumstances have been made for the care, welfare and development of the children.

THE COURT FURTHER ORDERS:

7. A divorce Order be made, such divorce order to take effect one month from the date of these Orders being 27 June 2022.

8. Ms Magnussen’s Response to Divorce Application filed 3 August 2020 is dismissed.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The respondent offers no understandable motive for the applicant to dishonestly claim to have been married to her and I could take no inference from her evidence as to any such motive in the applicant. The implication from the applicant's evidence is that the respondent is motivated in what he says is a false assertion of there being no marriage by reason of her anger at the separation and/or are his failure to meet obligations for financial support of the six children.BACKGROUND The applicant at all relevant times is domiciled in Australia. He is 44 years of age being born in 1977. The applicant is unemployed and lives in Suburb K. The respondent is 39 years old being born in 1983. She was born in Country G. In 2005 the applicant, her mother, and her brother relocated to City E, Country C. The respondent receives Centrelink in support of herself and the children. She receives no assessed child-support over and above any statutory minimum from the applicant who is unemployed. She too lives in Suburb K. The respondent says that she has various qualifications including tertiary level qualifications in science, social science and allied health. The parties agree that they spoke online on several occasions. They further agree that the applicant arrived in City E in early 2006. The applicant says that the parties determined to marry and he travelled to City E for this purpose. The respondent says that the applicant agreed to assist her in obtaining a “Working Visa” to enter Australia and that he would travel from Australia to City E for this purpose, but with a “fee” of US $30,000 to be paid. It seems agreed that the respondent did travel to Australia in early 2006 on the basis of the granting of a “Spouse Visa”. The applicant says that the parties lived together and separated “on a final basis” on 19 June 2018. The respondent deposes in her affidavit sworn 17 February 2022 at [25] – [35] as follows:[25]The Applicant stayed in [City E, Country C] for less than two months before returning back to Australia.[26]When the Applicant returned back to Australia, he advised me that he was not able to obtain the Working Visa, on my behalf, but instead he would apply for an “Engagement Visa”.[27] The Applicant told me that he would later marry me in Australia.[28]I did not see any visa application or supporting documentation. I did not sign any paperwork.[29]I was contacted by the [Country C] Embassy on [early] 2006 and was requested to attend their office and submit my passport. I attended and they stamped my Passport.[30]I was not interviewed or questioned by any government officials regarding the Visa Application.[31]The Visa was granted and I arrived in Australia on [early] 2006. I regard Australia as my home.[32]I commenced living with the Applicant and his family as I did not have alternative accommodation. I had my own separate room and paid rent to the Applicant's family from my personal savings.[33]The Applicant began treating me differently. I was locked inside my room and not allowed to leave my room. The Applicant would leave food for me at the doorstep. The Applicant would always threaten me if I did not do as he said such as sleep with him.[34]I was no longer able to continue residing in the same house with the Applicant and his family.[35]On or about [late] 2006, I moved out of the Applicant's home and obtained my own rental accommodation.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

An alternative argument put by counsel for the respondent is that should the Court find a marriage ceremony took place as asserted by the applicant then there is no or no sufficient evidence as to the validity of that marriage in respect of its lex loci celebrations. The Full Court confronted this issue in Banh & Banh[3] where it stated at page 76,127: While conceding that the trial judge was entitled on the evidence before him to find that some ceremony between the parties had in fact taken place, the appellants counsel submitted that there must be expert evidence proving the validity of the marriage. That submission is clearly wrong: see Sheludko & Sheludko (1972) VR 82. The appellant’s counsel's alternative submission was that proof of the validity of the marriage must be established by acceptable evidence, based on knowledge. The trial judge had the evidence of the wife, which he accepted, and which was based on knowledge. He had further the evidence of Lehora Richardson. In our view, his Honour was entitled to find that the evidence established that the ceremony which did take place was in conformity with local law and tradition. [3] (1981) FLC 91-010.FINDINGS AND CONSIDERATIONS Where my determination is squarely based on a single disputed fundamental fact and therefore an issue a credit, I prefer the evidence of the applicant. His evidence has been consistent including under cross-examination in Court. His evidence withstood vigorous cross-examination. He gave plausible explanations for difficulties with his case such as his inability to provide a marriage certificate with the application for a divorce and translation inconsistencies with the copies subsequently provided. Father L offered persuasive corroborative and consistent evidence of the applicant's case. Significantly in my view the respondent can point to no motivation in the applicant, on her case, almost bizarrely making an application for divorce and proceeding in its prosecution over almost two years if, as she asserts, there was no marriage. Indeed, the issue of motivation was not to put to the applicant except by myself whereupon he offered the explanation that he would be unable to remarry unless he was divorced. It follows, of course, that the process of applying for a divorce if one is not married would be an exercise in futility. Conversely, the respondent was not so impressive a witness as was the applicant. Her material filed with the Court is replete with inconsistencies and where explanations given in Court, even taking into account language difficulties, were unconvincing with a tendency to deflect blame to others such as solicitors inaccurately drawing her documents. She did not, however, bring those alleged authors to court to corroborate her claims and where no explanation is given for the failure to adduce such evidence then it is open for me to consider, and I do, the ramifications of Jones v Dunkel (1959) 101 CLR 298 where it is open for me to find that such evidence if adduced and given honestly would not have been of assistance to the respondent's case.