Lester & Lester - [2007] FamCA 186

FAMILY COURT OF AUSTRALIA

LESTER & LESTER

[2007] FamCA 186

FAMILY LAW – APPEAL AGAINST DECISION OF FAMILY COURT JUDGE – VALIDITY OF MARRIAGE – Section 113 Family Law Act 1975 - Whether the trial Judge erred as a matter of law in concluding that a marriage was established by a presumption based on cohabitation and repute – Whether the trial Judge provided adequate reasons in relation to the rebuttal of the presumption - Appeal allowed.

COSTS – Costs certificate granted to the appellant pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 – Costs certificate granted to the respondent pursuant to s 6 of the Federal Proceedings (Costs) Act 1981.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981

Jacombe and Jacombe (1960) 105 CLR 355
Kekewich J in Re Shephard, George v Thyer [1904] CH 456
Piers v Piers (1849) 2 HL Cas 331
Re Taylor (deceased) Taylor v Taylor and Another [1961] All ER 9
Sheludko v Sheludko [1972] V.R. 83
Sastry Velaider Aronegary v Sembecutty Vaigalie (1881) 6 App Cas 364 at 371
Solomon and Hatti (unreported) Supreme Court of New South Wales, Court of Appeal

APPELLANT:

LESTER

RESPONDENT:

LESTER

FILE NUMBER:

BRF

3266

2005

APPEAL NUMBER:

2006

DATE DELIVERED:

2 March 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

KAY, WARNICK & MAY JJ

HEARING DATE:

21 November 2006

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

1 June 2006

LOWER COURT MNC:

[2006] FamCA 445

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Burridge

SOLICITOR FOR THE APPELLANT:

Biggs Fitzgerald Pike

COUNSEL FOR THE RESPONDENT:

Mr Murphy SC with Mr Kidson

SOLICITOR FOR THE RESPONDENT:

Barry & Nilsson Lawyers

Orders

That the appeal be allowed.
That the orders made by Carmody J on 1 June 2006 be set aside and the Application in a Case filed 10 November 2005 be dismissed.
That the Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 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 the appellant in relation to the appeal.
That the Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 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 the respondent in relation to the appeal.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Lester and Lester.

FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 50 of 2006
File Number: BRF 3266 of 2005

MR LESTER

Appellant

And

MS LESTER

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 Lester & Lester

Details

AGLC: Lester & Lester [2007] FamCA 186
Case: [2007] FamCA 186
Decision Date: 2 March 2007

CaseChat Overview and Summary

The case of *Lester & Lester* involved an appeal before Kay, Warnick, and May JJ concerning an application for divorce. The husband opposed the divorce on the grounds that the wife lacked the capacity to marry due to a prior marriage. The central dispute revolved around whether a valid marriage had existed between the parties.

The legal issues before the court were whether the evidence sufficiently established the validity of the marriage between the parties, and consequently, whether the wife had the capacity to enter into the marriage. The court was required to determine if the presumption of a valid marriage, arising from a ceremony and cohabitation, could be rebutted by the evidence presented.

The court allowed the appeal, setting aside the previous orders and dismissing the application. Their Honours noted that the evidence, particularly a Ghanaian wedding certificate dated 13 December 1997, along with seventeen years of cohabitation as husband and wife, raised a strong presumption of the marriage's validity. This presumption, supported by the principle that proof of a marriage ceremony followed by cohabitation casts the burden of proof on those denying its validity, prevailed over the husband's assertions. The court also granted costs certificates to both the appellant and the respondent under the *Federal Proceedings (Costs) Act 1981*.

Orders

Orders of the court

That the appeal be allowed.

That the orders made by Carmody J on 1 June 2006 be set aside and the Application in a Case filed 10 November 2005 be dismissed.

That the Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 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 the appellant in relation to the appeal.

That the Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 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 the respondent in relation to the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The application for divorce on behalf of the wife was opposed by the husband ultimately on the basis that Mrs Jacombe did not have the capacity to enter into the marriage, she having been previously married. At the outset of the judgment their Honours observed (p. 357):“…what we are now concerned with is whether there was in the circumstances as a whole enough to lead to the conclusion that the parties were validly married.”After discussing the evidence and the decision of the lower appeal court, the Full Court of New South Wales, their Honours concluded that the documents (p 359):“…established the dissolution of the marriage between the respondent and Urbanovics.”And said:“This conclusion is sufficient to dispose of the appeal, but in the circumstances it is desirable to express our agreement with the judges of the Full Court who dealt with the matter that proof of the ceremony of marriage at Jerusalem followed by seventeen years’ [sic] cohabitation as man and wife raised so strong a presumption of the validity of the marriage between the parties that it prevailed over such evidence as there was to the contrary.This is a case where the performance of the marriage ceremony was followed by the parties living together as man and wife for seventeen years. The performance of a marriage ceremony itself raises a presumption of the validity of the marriage and upon this point it is not necessary to do more than cite from the judgment of the present Chief Justice in Axon v. Axon (1937) 59 CLR 395 at pp 403, 404: ‘Upon proof that a marriage ceremony had been duly performed between herself and the respondent a presumption arose in favour of the validity of the marriage. It is said that the presumption is confined to the regularity and efficacy of the ceremony as a lawful mode of marriage. This, in my opinion, is not correct. The presumption in favour of the validity of a marriage duly celebrated casts upon those who deny it the burden of producing reasonable evidence of the fact which renders the marriage void, whether that fact is an impediment consisting in a prior marriage or a prohibited degree of relationship or the failure to fulfil some condition indispensable to the efficacy of the ceremony’. Furthermore, proof that the parties lived together and were accepted as man and wife raised a presumption that they were validly married (see In re Taylor, Dec'd. (1961) 1WLR 9) which is rebuttable only by clear and cogent evidence, and without suggesting that in a case like this the presumption arising from cohabitation would by itself suffice to prove a marriage it is another element to be taken into account in considering whether or not the circumstances as a whole do so.For these reasons the appeal should be dismissed.” (Emphasis added) In Axon and Axon (supra), that the parties had been through a ceremony of marriage was uncontested, the only question was whether the wife was still lawfully married to a person to whom she had previously been married at that time.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The provisions of s 113 are as follows:Proceedings for declarations 113.In proceedings of the kind referred to in paragraph (b) of the definition of matrimonial cause in subsection 4(1), the court may make such declaration as is justified. The trial Judge at first under the heading “Facts” recounted the uncontroversial facts and the respective cases of both parties. Ms Lester claimed that there was a marriage ceremony in a registry office in the town of marriage, followed by a traditional ceremony and celebration later in the village in which they were living. It is her evidence, to which his Honour referred, that her brothers and friends attended the wedding. No affidavits were submitted from any of those people. As to how the parties came to be living in Australia, his Honour said at paragraph 27:27.The parties holidayed in Australia in July 2000. While they were here the applicant applied to immigrate. Both of them informed departmental officials and signed documents confirming that they commenced a de facto relationship in 1995 but were not married. The form (PL 3) records the wife’s main language as English and her surname as ['Lester'].28.In PL 6, a Statutory Declaration, the parties affirm that they were known and accepted in the village and by other ex pats as being in a de facto relationship. However, they go on to say that their friends in Australia accepted them ‘as a married couple’. 29.PL7 records the following comment by an interviewer:Obviously committed couple. De facto relationship for five years plus. 30.Notably the applicant was still using her maiden name on travel documents in 2003. (PL 1).31.However, there is a reference in Ex. 1 to a Ghanaian wedding certificate dated 13 December 1997. The controversial issue between the parties was whether a marriage ceremony had taken place at any time. Ms Lester claimed various dates in her affidavit evidence and the trial Judge said at paragraph 21 of the judgment:“21. She does not remember the precise date (allegedly because wedding anniversaries are not culturally significant in her country) but believes it to be 13 December 1997.” The trial Judge noted however, that in paragraph 19 of her affidavit Ms Lester referred to the marriage as taking place in mid 1997 while it was stated at paragraph 20 that she ceased working in September 1997 “after our marriage”. Another difficulty observed by the trial Judge regarding Ms Lester’s assertion that the marriage took place on 13 December 1997 is that her passport suggests that she was not in Ghana on that date. At paragraph 23 of the judgment the trial Judge records that there is no doubt that Mr Lester:“23.…admits that he and the applicant referred to each other as husband and wife, occupied married quarters and were treated by his employer and within the local community as spouses (even though they were not) but categorically denies anything in the nature of a wedding.” Although, as his Honour observed, there was a reference to a marriage certificate in the documents when the parties applied to immigrate (Ex 1), no such wedding certificate was ever produced. Ms Lester said that she had tried to obtain a duplicate from the Ghanaian Registry Office in January 2005, but as she could not remember the date of the marriage and records are not held on computer this posed some difficulty.