Magnussen & Ladue

[2021] FCCA 832

FEDERAL CIRCUIT COURT OF AUSTRALIA

Magnussen & Ladue [2021] FCCA 832

File number(s):

MLC 272 of 2020

Judgment of:

JUDGE HARLAND

Date of judgment:

28 April 2021

Catchwords:

FAMILY LAW – contested divorce – overseas marriage – respondent self-represented challenges validity of marriage  - deficiencies in evidence -  court lacks jurisdiction - transfer

Legislation:

Evidence Act 1995 (Cth) s 144

Family Law Act 1975 (Cth) ss (4)(a)(ii)(b), (39)(1A), (113)

Marriage Act 1961 (Cth) pt VA, ss 88D, 88G

Migration Regulations1994 (Cth) cl 309.111

Cases cited:

Alldrice & Masters [2012] FMCAfam 914

Number of paragraphs:

42

Date of last submission/s:

30 March 2021

Date of hearing:

1 March 2021

Place:

Melbourne

Counsel for the Respondent:

The Respondent appeared in person

ORDERS

MLC 272 of 2020

BETWEEN:

MR LADUE

Applicant

AND:

MS MAGNUSSEN

Respondent

ORDER MADE BY:	JUDGE HARLAND
DATE OF ORDER:	28 APRIL 2021

THE COURT ORDERS THAT:

1.Pursuant to section 39 of the Federal Circuit Court of Australia Act1999, these divorce proceedings MLC272/2020 are transferred to the Melbourne Registry of the Family Court of Australia to be listed with such priority as that Court is able to provide.

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.

IT IS NOTED that publication of this judgment under the pseudonym Ladue & Magnussen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE HARLAND

1. This matter was listed for trial before me by a registrar for a contested divorce hearing.

2. There are separate parenting and financial proceedings on foot, listed for trial before another judge. When the applicant first filed his application for divorce he did not provide a copy of the marriage certificate, explaining in an affidavit that it was lost.

   EVIDENCE OF THE MARRIAGE

3. In the applicant’s affidavit filed 13 January 2020, he explains the loss of the marriage certificate. In this affidavit, the applicant says the parties were married in the D Church in Country C. He said that he had been unable to find the marriage certificate and that he had asked the respondent to search for the marriage certificate as well, and that he had made enquiries with Centrelink and the Country D consulate, neither of which had a copy of the certificate.

4. In his affidavit filed on 1 September 2020 the applicant says that the parties were legally married in the Catholic Church in City E, Country C. He says members of the respondent’s family attended the wedding, and that neither of them would have had agreed to have children out of wedlock due to their religion.

5. Part VA of the Marriage Act 1961 (Cth) (“Marriage Act”) deals with recognition of foreign marriages. Section 88D provides that foreign marriages, which were at the time when they were solemnised recognised as valid under local law, will be recognised as valid in Australia provided none of the prohibitions set out in section 88D apply.

6. Exhibit 10 is a copy of the marriage certificate and a letter from the Department of Home Affairs. The marriage certificate refers to “Country C Church”. The certificate is only in English and includes a statement of the parish priest certifying that it is a true copy from the official register of the parish office of the F Church. The stamp on the document is illegible. The covering letter from the Department of Home Affairs dated 4 September 2020 provides a copy of the marriage certificate in response to the freedom of information request of the applicant. The applicant asked for the marriage certificate and a copy of the respondent’s Visa Application, stating that she is now denying that a marriage or wedding took place. The Department only produced a copy of the certificate and did not produce any other document in response to the request.

7. Section 88G of the Marriage Act provides that an original or certified copy of a record of marriage alleged to have been solemnised in or under the law of the foreign country will be prima facie evidence of the validity of that marriage. The certificate the applicant obtained from the Department of Home Affairs is not certified and is only in English. It does not indicate that it is a certified translation of the marriage certificate which I assume would be in Language H given that it is the official language of Country C. No evidence was presented as to the laws in Country C with respect to marriage.

8. In oral evidence the applicant says they were married in the respondent’s Country C Church in Country C rather than the Country D Church as he had stated in his 13 January 2020 affidavit. The evidence is unclear as to whether the Country C Church is the same as the Country D Church or whether they are separate branches of Catholicism. He refers to their children being baptised at B Church and says that the diocese of the Country D Church requires the parents to be lawfully married if the children are to be baptised in the Church. The applicant does not provide any evidence from any Church official that that is a requirement of the Church.

9. The applicant annexes to his affidavit filed 10 September 2020 the baptismal certificate of three of the children X, Y and Z. The certificate is in both Country D language and English and has the Church seal stamped on it. The certificates referred to the parties being lawfully married. It is not apparent from the certificate as to whether this was verified or accepted on the words of the parties. He also annexes 3 of the children’s Australian birth certificates registered with the Victorian Registry of Births, Deaths and Marriages. The certificates refer to the parties being married in City E, Country C in 2006.

10. The applicant relied on affidavits the respondent filed in the parenting and property proceedings, where she referred to the parties being married. Exhibit 8 is the first affidavit the respondent filed in those proceedings dated 17 March 2020, where she refers to being married and refers to the applicant as her husband. She says they met online and chatted for a few months before the applicant travelled to Country C to marry her. At paragraph 13 of that affidavit, she states that the parties started living together and married in 2006 and separated on a final basis at the end of 2016. She says there were two prior separations in 2012 and 2015 with each separation being for a few months. She says she notified Centrelink that she was separated on 16 June 2017.

11. Exhibit 9 is the affidavit of the respondent filed on 29 September 2020 in the parenting and property proceedings. In that affidavit she says she has never been known by any name other than “Ms Magnussen” and never adopted the applicant’s surname as they were not legally married, and further says she has never seen a marriage certificate. However she does say she regarded the applicant as her husband and that they lived together as husband and wife and had children together. She says that in order to be legally married in Country C one must attend the registry office and sign the correct paperwork and says that the parties did not do this. Similar to the applicant, the respondent does not provide any supporting evidence to verify this. At paragraph 7 she says they had a small religious ceremony in Country C in 2006. She believed it was a blessing and not a legal marriage, and does not recall finding any documents or receiving any marriage certificate on that day or later. She says the applicant promised to marry her when they came to Australia.

12. She refers to the baptismal certificates annexed to the applicant’s affidavit filed 1 September 2020 and says she has never seen those certificates before and has never used the applicant’s surname, but is noted with his surname on those certificates. She claimed she spoke to the priest about the certificates and says the priest told her he simply issued them at the applicant’s request, and claimed that the priest told her that the Church had no interest in whether the parents were married or not, and only that the children were christened. That priest has not sworn an affidavit in these proceedings and therefore is not available for cross-examination. She also annexes to her affidavit a letter from B Church, which simply states that the children were baptised in their Church, and that there is no record of the parties being married in their Church. This letter was also tendered and marked as Exhibit 1.

13. Exhibit 9 is email correspondence the respondent’s former solicitor received from the D Church dated 1 August 2020. This email states that they have no record of the parties being married in their Church in Country C. The applicant says this does not assist the respondent, as that was not the church he says they married in. He says that they married in the respondent’s parish church and that members of her family attended. The respondent is in a better position than the applicant to obtain evidence from Country C, she still having family there and two of her family members attended the ceremony.

14. Whilst still legally represented, the respondent filed a response to the divorce on 3 August 2020. In the response she sought that the application for divorce be dismissed on the grounds that the parties were never legally married and refers to enquiries her solicitor made with priests of the D Church. This email exchange was also tendered and is marked as Exhibit 7. In that exchange the priest states that he could not find “Mr Ladue and Ms Magnussen” in any Church register in Country C.

15. The respondent further changed her position a few days before the trial when she filed an affidavit stating “… he is not my husband as we never lived together as husband and wife and had together by raped me [sic] under the [sic]threats for 11 years.” She says she did not understand the affidavits the lawyer prepared and that they do not reflect what she told her lawyer and also complains that they were not interpreted to her. She also refers to various enquiries she says she made to Centrelink, the Country G in Canberra and the Country C Embassy, none of which have any record of marriage. She does not provide details of the enquiries and does not provide any documents. She says a relative has made enquiries in Country C and also has not found any records. That unnamed relative is not on affidavit. She says it has been difficult to gather evidence because of COVID-19. She also says she rejects the baptismal certificates and says they do not have baptisms in her religion. Again she does not provide any supporting evidence with respect to this.

16. The respondent’s tender marked as Exhibit 2 is a copy of her Country G citizenship certificate. She relies on the certificate as it refers to her being single, but as the certificate is dated 15 December 2020 this does not assist her as there is no dispute that she was single as of that date.

17. The applicant says the respondent came to Australia on a spouse visa. The respondent disputes this and says it was a business visa. Exhibit 5 is a copy of a page from her Country G passports showing her Australian visa which permits her to travel in and out of Australia until her permanent resident application is determined. The visa is described as being “UF provisional resident P620 subclass 309.” This supports the applicant’s evidence. [1]

    [1] See clause 309.111, Migration Regulations, 1994 (Cth)

18. Exhibit 3 is the respondent’s Australian citizenship certificate dated 2011. In her submissions, she relies on this certificate showing her name as “Ms Magnussen” and not “Ladue”. Exhibit 4 is a copy of a page of her Country G passports referring to her name as “Ms Magnussen”. Exhibit 6 is a copy of the page of her Australian passport showing her name as “Ms Magnussen”. Her Australian passport was issued in 2013.

19. None of the documents relied on which contain Language H have been translated by a certified translator.

20. In oral evidence the husband says the parties were religiously and legally married on the same day. He also maintained that the respondent entered into Australia on a spouse visa which permits a person to apply for Centrelink benefits after 2 years and says the respondent did this.

21. When the respondent was cross-examined she complained that she did not write the previous affidavits, rather it was her lawyer who did so and that they were not translated to her. She said one affidavit was done later. She said when she confronted her lawyer about it and the mistakes her lawyer stopped acting for her. She conceded that she has not made a complaint against her former lawyer and said that she was told she would need money and a lawyer to do so. In answer to several questions about those affidavits, she said she did not make those statements and that her former lawyer wrote them. She said her lawyer misunderstood her. She also claimed that she did not apply for her visa but that the applicant did so on her behalf. She denied attending the interview at the Australian Embassy in Country C.

22. She also said that she is not a member of the church referred to on the marriage certificate. She claims the marriage certificate is a forgery and points to the fact that it does not refer to either of the parties’ surnames. She refers to her parents’ names being misspelt. 

23. The respondent, in oral evidence, denied marrying in a church in 2006 and said she did not recognise that church. She says the blessing took place at her home and her mother and brother attended. Neither are on affidavit.

    JURISDICTION

24. During the trial the issue of this Court’s jurisdiction was not raised. In most respects the jurisdictions of the Federal Circuit Court of Australia and the Family Court of Australia are identical. Divorce applications are heard in the Federal Circuit Court. The vast majority are not contested. Where the divorce is contested, it must be referred to a judge for determination. Usually the issue concerns the date of separation, or whether or not the parties separated at all.

25. The trial was held in person in Court as the respondent was self-represented and needed the assistance of an interpreter. The applicant was represented by his solicitor. Both parties were cross-examined and several documents were tendered. After reserving my decision I caused the matter to be listed for further submissions with respect to jurisdiction as to whether or not in substance the respondent’s response raised the issue of the validity of the marriage. This is important because whilst this Court has jurisdiction with respect to the divorce, it does not with respect to a declaration as to the validity or invalidity of the marriage.

26. Section 113 of the Family Law Act deals with declarations the Court may make which include a declaration that a marriage is either valid or invalid. It reads as follows:

    S 113 Proceedings for Declarations

    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.

27. Section 39(1A) states the following with respect to with jurisdiction in matrimonial causes.

    Subject to this Part, a matrimonial cause (other than proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b) of the definition of matrimonial cause in subsection4(1)) may be instituted under this Act in the Federal Circuit Court of Australia

28. The Federal Circuit Court  thus has jurisdiction with respect to matrimonial causes other than that which is defined in subparagraph (a)(ii) or (b) of the definition of matrimonial cause in section 4. It is necessary to then turn to that definition, which is as follows:

    S 4 Interpretation

    (1) In this Act, the standard Rules of Court and the related Federal Circuit Court Rules, unless the contrary intention appears:

    “matrimonial cause” means:

    (a)Proceedings between the parties to a marriage, or by the parties to a marriage for:

    (ii)a decree of nullity of marriage; or

    (b)proceedings for a declaration as to validity of:

    (i)a marriage; or

    (ii)a divorce; or

    (iii)the annulment of a marriage;

    by decree or otherwise

29. Reading those sections together, it is clear that the Federal Circuit Court does not have jurisdiction to make declarations as to the validity of marriage.

30. The applicant’s solicitors filed submissions with respect to the jurisdictional issue prior to the further mention hearing. It was apparent from the applicant solicitor’s written submissions provided in advance of further hearing, in response to an email from Chambers expressing concern about jurisdiction, that he did not appreciate that only the Family Court and not the Federal Circuit Court has power to determine the validity or other of a marriage. This becomes clear when section 39 and section 4 the definition of matrimonial cause are read together. It is clear that the Federal Circuit Court does not have jurisdiction to make the declaration as referred to in section 113 of the Family Law Act.

31. The applicant’s solicitor made oral submissions that neither party sought a declaration with respect to the validity or invalidity of marriage and that the application the husband had made was for divorce. He further submitted that if the applicant’s divorce application was dismissed the children would face ignominy and uncertainty being born outside of marriage, particularly given their religion and culture. The children would also have difficulties in the event he wished to marry in the future. Whilst these are legitimate concerns, the applicant’s submissions does not squarely address the jurisdictional issue.

32. The question I am faced with is whether it is safe for me to take the position that the applicant husband urges, being that the respondent is simply saying no marriage exists and therefore not raise the issue of declaration, or do I look to the substance of the wife’s argument particularly bearing in mind that she is now without legal representation.

33. The Court cannot create jurisdiction when it does not have it and the parties cannot confer jurisdiction on the Court by consent.

34. The respondent did not address the jurisdictional issue, which is not surprising given she is unrepresented. During the course of the submissions, the respondent attempted to show documents she had on her computer screen and said that she had just received an email from the Department for Home Affairs the night before indicating that they were cancelling the certificate and correcting their file as they were satisfied the certificate was not legitimate. She said she had not provided it to the husband’s lawyer having just received the letter and also said it had private information in it. Clearly, if the email says what she alleges then it is highly relevant to the proceedings but I cannot take it into account unless it is properly in evidence before the court. I explained that she would need to bring an application seeking to reopen the trial and introduce further evidence by filing an application in a case and supporting affidavit.

35. There is little case law on this issue. Alldrice and Masters [2012] FMCA is a decision of FM Harmon (as he then was). In that case, a registrar referred the case to a judge as she had received a fax from the respondent and so treated the divorce as contested, and gave the respondent an opportunity to put material on in proper form. The respondent did not file any material, did not appear in Court on the three occasions the matter was listed and did not seek leave to appear by telephone. His Honour noted that both were self-represented and English was not their first language.

36. Whilst acknowledging that the case was proceeding undefended, FM Harman raised the issue of validity of marriage, noting that this Court does not have jurisdiction to make that declaration. He was satisfied that in the case before him that was not what he was being asked to do and that rather what he had to determine was whether or not the marriage existed on the available evidence. He considered whether or not the unsigned document the respondent sent to the court raised the validity of the marriage. FM Harman determined that the document the respondent provided did not raise an absence of consent or other circumstances going to the validity of the marriage, but rather that the marriage did not exist at all.

1. No marriage certificate was available in the case before him. The applicant filed an affidavit describing the marriage ceremony and says a marriage certificate was issued but the certificate was lost when the parties had to flee their village during a civil war. They and their children were later granted refugee status in Australia. FM Harman had a copy of the travel document the parties provided when entering Australia which referred to their marriage, included pictures and it appeared both parties had input into the document. The Court was satisfied that the marriage existed and granted the divorce. The distinction in that case was that the case proceeded on an undefended basis. A further distinction is that the substance of the respondent’s case before me raises the issue of the validity of the marriage and therefore the issue of jurisdiction.

2. Given these developments at the mention hearing, I gave the parties the opportunity to file any further written submissions within 14 days and make any application to reopen the case. Neither filed an application to reopen. The respondent filed further written submissions alleging that the marriage certificate the applicant relies on is fraudulent. She annexes her Centrelink statement for her parenting payment as a single parent. As this statement covers the period 31 December 2020 to 24 March 2021 it does not assist as neither party alleges they were in a relationship during this period. She also annexes a letter from the Department of Home Affairs dated 16 March 2021 wherein they advise that they have approved her request to annotate the Department reports to refer to her name as “Ms Magnussen” and her status as never married.

3. The applicant did not file any submissions. On 2 April 2021 he filed out of time, what appears to be a copy of a Centrelink claim. It is not dated and no context is provided. It appears to be a form completed by the applicant where he refers to being married and in a relationship, with the relationship starting in 2006.

4. As can be seen from the discussion above the state of the evidence is poor. Section 102 of the Family Law Act addresses proof of birth, parentage, death or marriage. It is as follows:

   S 102 Proof of birth, parentage death or marriage

   In proceedings under this Act, the court may receive as evidence of the facts stated in it a document purporting to be either the original or a certified copy of:

   (a)a certificate, entry or record of birth, death or marriage alleged to have taken place, whether in Australia or elsewhere; or

   (b)an entry in a register of parentage information kept under the law of the Commonwealth or of a State, Territory, or prescribed overseas jurisdiction

5. The marriage certificate in evidence is neither an original nor a certified copy. The certificate is only in English and not the official language of Country C where the marriage allegedly took place. Both parties sought to give evidence and make submissions about church practices and requirements which do not come within the scope of what is common knowledge, pursuant to s 144 of the Evidence Act 1995 (Cth), which does not require expert evidence.

6. Given the state of the evidence I am unable to grant a divorce as I cannot be satisfied that a valid marriage took place. I have indicated above gaps in the evidence and contradicting documents that are not in proper form. As I do not have jurisdiction with respect to the validity or invalidity of the marriage I am satisfied that the proper course is to transfer this matter to the Family Court for determination of the validity of the marriage, as simply dismissing the application creates much uncertainty for the parties and the children. It would also leave them in the unsatisfactory position of having some documents such as the children’s birth certificates, indicating that the parties were married and others not. The allegations of fraud are serious. The parties will need to address these issues and file further evidence in due course in the Family Court of Australia

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland.

Associate:

Dated:       28 April 2021