LINVILLE & LINVILLE - [2018] FamCA 953

FAMILY COURT OF AUSTRALIA

LINVILLE & LINVILLE

[2018] FamCA 953

FAMILY LAW – NULLITY – Where the applicant seeks a declaration of nullity of marriage – Where the respondent is a male to female transsexual person who underwent gender affirmation surgery years after marriage – Whether the respondent was a man at the time the marriage was solemnised – Where the applicant contends she was mistaken as to the respondent’s gender identity, but not the respondent’s physical identity, at the time of their marriage and so the marriage is void – Where the respondent supports the application – Whether s 23B(1)(d)(ii) of the Marriage Act 1961 (Cth) can be construed broadly enough to capture spouses’ mistakes about the gender identity of the person they marry – Where the Court determines the marriage remains valid – Application dismissed – No order as to costs.

Births, Deaths and Marriages Registration Act 1995 (NSW)
Family Law Act 1975 (Cth) s 51
Marriage Act 1961 (Cth) ss 23, 23B(1)

AB v State of Western Australia (2011) 244 CLR 390
Bellinger v Bellinger [2002] 1 All ER 311
Corbett v Corbett (Otherwise Ashley) [1970] 2 All ER 33
In Re Kevin (Validity of Marriage of Transsexual) (2001) FLC 93-087
In Re Kevin (Validity of Marriage of Transsexual) (No 2) (2003) FLC 93-127
In theMarriage of C and D (falsely called C) (1979) 28 ALR 524
Norrie v NSW Registrar of Births, Deaths and Marriages (2013) 84 NSWLR 697
Osman & Mourrali (1990) FLC 92-111
The Crown v Harris & McGuiness (1988) 17 NSWLR 158
Secretary, Department of Social Security v SRA (1993) 118 ALR 467
Zacharia & Paradiso [2008] FamCA 688

APPLICANT:

Ms Linville

RESPONDENT:

Ms Linville

FILE NUMBER:

NCC

2336

2017

DATE DELIVERED:

21 November 2018

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

15 June 2018; 7 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE APPLICANT:

B Lawyers

COUNSEL FOR THE RESPONDENT:

Not Applicable

SOLICiTOR FOR THE RESPONDENT:

Not Applicable

Orders

The Initiating Application filed on 4 April 2018 is dismissed.
No order as to costs.

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 Linville & Linville 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 NEWCASTLE

FILE NUMBER: NCC 2336 of 2017

Ms Linville

Applicant

And

Ms Linville

Respondent

REASONS FOR JUDGMENT

Introduction

By an Initiating Application filed on 4 April 2018, the applicant seeks a declaration that the marriage she solemnised with the respondent in…

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.

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Details

AGLC: LINVILLE & LINVILLE [2018] FamCA 0953
Case: [2018] FamCA 953
Decision Date: 01/01/2018

CaseChat Overview and Summary

The applicant sought a declaration of nullity of marriage from the Family Court of Australia. The dispute arose because the respondent, who identified as a male at the time of the marriage, later underwent gender affirmation surgery and identified as female. The applicant contended that she was mistaken as to the respondent's gender identity at the time of the marriage, arguing this rendered the marriage void. The respondent supported the applicant's application.

The central legal issue before the Court was whether the marriage was void under s 23B(1)(d)(ii) of the *Marriage Act 1961* (Cth) due to the applicant's mistaken belief about the respondent's gender identity. Specifically, the Court had to determine if the respondent was a "man" at the time of the marriage solemnisation and whether the statutory provision could be interpreted broadly to encompass a mistake regarding a spouse's gender identity, as distinct from their physical sex.

Austin J reasoned that the *Marriage Act 1961* (Cth) defines marriage as a union of a man and a woman. His Honour found that the respondent was a biological male at the time of the marriage, and therefore, the marriage was between a man and a woman as required by the Act. The Court held that the applicant's mistake related to the respondent's gender identity, not their biological sex at the time of the marriage. Consequently, the Court concluded that s 23B(1)(d)(ii) of the *Marriage Act 1961* (Cth) could not be construed to cover a mistake about gender identity in this context, and the marriage remained valid.

The Initiating Application was dismissed, and no order was made as to costs.

Orders

Orders of the court

The Initiating Application filed on 4 April 2018 is dismissed.

No order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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