Mears and Mears
[2011] FamCAFC 121
•23 May 2011
FAMILY COURT OF AUSTRALIA
| MEARS & MEARS | [2011] FamCAFC 121 |
| FAMILY LAW - APPEAL – Application to extend time to appeal – Where the wife seeks to appeal against an order deeming her marriage valid almost five years out of time– Where the order appealed against was the order initially sought – Where there is some doubt as to the validity of the marriage as a witness to the marriage was under the age of eighteen – Where the husband supports the wife’s application – Where there is no prejudice – Application allowed. |
| Family Law Act 1975 (Cth) Marriage Act 1961 (Cth) s 41; s 44; s 45; 113 |
| Attorney General (Cth) and Kevin (2003) FLC 93-127 Gallo v Dawson (1990) 93 ALR 479 Lockhart & Lockhart (2006) FLC 93-292 |
| APPELLANT: | Mrs Mears |
| RESPONDENT: | Mr Mears |
| FILE NUMBER: | BRF | 20083 | of | 2006 |
| APPEAL NUMBER: | NA | 30 | of | 2011 |
| DATE DELIVERED: | 23 May 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 23 May 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 August 2006 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | In person |
Orders
The application for leave to appeal out of time is granted.
That the notice of appeal and any further affidavits that the wife wishes to rely on be filed within 28 days.
That the parties attend upon the Appeals Registrar for further directions.
IT IS NOTED that publication of this judgment under the pseudonym Mears & Mears is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 30 of 2011
File Number: BRF 20083 of 2006
| Mrs Mears |
Applicant
And
| Mr Mears |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
An application in an appeal was filed by the wife on 28 April 2011 seeking an extension of time to appeal the order of Coleman J made 29 August 2006, that is an order made nearly five years ago. The order is:
IT IS DECLARED THAT the marriage of [Mr Mears] and [Mrs Mears] celebrated at Rockhampton in Australia [in] October 1970 was and remains a valid marriage in accordance with the provisions of the Commonwealth Marriage Act 1961.
In the affidavit filed in support of the application for leave to appeal out of time the wife explains:
I am appealing the decision of Justice Coleman as I know in my heart that this decision was not right according to what my conscience is telling me and the guidance I have received from God.
Should leave be granted the wife seeks that the marriage be declared invalid, so that the parties can “legally marry”. The wife also wishes to not have the “illegitimacy [of the marriage] hanging over [her] family any longer”. If leave is not granted the wife will be unable to appeal and the declaration of validity of marriage will remain in place.
History
The parties were married in October 1970 in Rockhampton. There were apparently some 100 guests at the wedding.
The witnesses to the marriage were the wife’s sixteen year old bridesmaid and the husband’s eighteen year old best man.
The wife is concerned that the parties’ marriage is not legitimate due to the failure to adhere to the requirements as prescribed in s 44 of the Marriage Act 1961 (Cth) relating to the witnessing of a marriage.
The wife states that she ignored the instructions from the minister about having two witnesses over 18 years of age sign the Certificate of Marriage. In fact, the wife acknowledges that she was untruthful because she knew her bridesmaid was under 18 years of age.
It is said that the minister communicated to the parties that they would not be married if this requirement was not met and suggested the wife’s father sign the certificate of marriage as a witness. The wife did not want her father to sign the document and “went ahead rebelliously without heeding his warning”.
This decision, the wife explains, has caused her “much sorrow and regret” as she knows that the parties “are not really married”.
The wife has made several previous attempts to establish the validity of her marriage.
On 17 July 2000 the wife received a letter from the Registry of Births, Deaths and Marriages Queensland, responding to an enquiry made by the wife. That letter said:
… We thank you for your letter forwarded to us by the District Registrar of Rockhampton with regard to your marriage in 1970.
Please be advised that the slight oversight with regard to the age of one of your witnesses in no way affects the legality of your marriage. You were validly married by an authorised celebrant, who conducted a valid religious wedding ceremony, and therefore you marriage is perfectly valid in the eyes of the law. …
The background to the hearing before Coleman J is that on 23 August 2006 both parties filed an application for final orders in the Family Court of Australia. Both the wife and the husband sought the following order:
That the Court declares that the marriage of [Mrs Mears] and [Mr Mears] at Rockhampton on … October 1970 is valid.
As mentioned the parties were successful in their application and the trial judge declared that “the marriage of [Mr Mears] and [Mrs Mears] celebrated at Rockhampton in Australia [in] October 1970 was and remains a valid marriage in accordance with the provisions of the Commonwealth Marriage Act 1961”. Apart from the order, the wife did not provide the court for the purposes of this application with reasons of Coleman J or a transcript.
Although it was the order sought by the parties, the wife now wishes to appeal the decision but needs leave to file the appeal. It is not really said by the wife that the order made by the judge was wrong, it is rather that it was not supported by her or her husband at the time and they should have asked for a different order, that is, that the marriage was not valid, allowing them to remarry.
This is a most unusual case, in the sense that usually leave is only granted to appeal where it can be demonstrated that there was some error made by the trial judge. In this case it is difficult to imagine the error, bearing in mind that the order made was as asked by the parties and may be correct.
Relevant law
The principles emerging from Gallo v Dawson (1990) 93 ALR 479 may be summarised as follows:
·The grant of an extension of time is not automatic.
·The object is to ensure that Rules which fix times do not become instruments of injustice.
·Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
·When determining whether the Rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.
·When considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.
It is the last of those matters which is of some concern.
Explanation for the delay
The order the wife seeks to appeal were delivered, as said previously, on 29 August 2006. It is now 23 May 2011, almost 5 years later.
In her affidavit the wife states “I know this has been going on for too long and we really must have closure and put this behind us so we can get on with the rest of our lives … but I have to follow what I believe God is telling me to do morally”.
The wife then explains that she now realises that she “should have pushed things more back there with the solicitor before going before the Judge as [she] did believe [she] was hearing from God, but it has been more and more as time has gone on”.
It must be observed that the delay in this case is not a significant consideration because the husband supports the application.
Prejudice
The only other possible party to the proceedings is the husband and he supports the wife’s application.
In her affidavit the wife expresses her dissatisfaction with the legal representative who acted for the parties in the proceedings before the trial judge. She asks now to be given the opportunity to “be a voice for [herself] this time”.
In essence, the wife explained to me in her oral submissions, that the orders made by the trial judge were not those that she really wanted. Rather she would like to go through another ceremony of marriage, which would be valid both in a civil and a religious sense. In other words, the wife is really asking that the order made by the trial judge be set aside.
It seems to me that the only remedy is an appeal.
The merits of the appeal
As I have mentioned the wife and I gather her husband are really asking to remarry. As the marriage has been declared valid s 113 of the Marriage Act 1961 (Cth) prevents a second marriage ceremony.
The historical and social notion of the term “marriage” was extensively discussed by the Full Court in Attorney General (Cth) and Kevin (2003) FLC 93-127.
It is of some interest to recall that s 43(1)(a) of the Family Law Act 1975 (Cth) states:
(1)The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to:
(a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;
The legal requirements for a valid marriage are provided in s 41, 44 and 45 of the Marriage Act 1961 (Cth). As Carmody J in Lockhart & Lockhart (2006) FLC 93-292 correctly summarised, this requires:
Participation in some form of official wedding ceremony performed by an authorised celebrant involving a consensual and mutual exchange of vows or commitments of lifetime fidelity and conjugal support in front of witnesses is essential for a valid marriage. The only legitimate way of dissolving a formal marriage is by decree.
The section of the Marriage Act 1961 (Cth) which concerns witnesses to the marriage is s 44. This section provides:
A marriage shall not be solemnised unless at least 2 persons who are, or appear to the person solemnising the marriage to be, over the age of 18 years are present as witnesses. (emphasis added)
It could be said that the responsibility for the witnesses was that of the priest, not the wife. However, the wife knew that one of the witnesses was under eighteen years. There was no element of mistake in this matter.
Without considering the merits of the appeal anymore than is necessary to grant an application such as this, the following matters are taken into account. First, the orders made by the trial judge were those as asked for by the applicants. Secondly, most likely the orders were correct on the material before the judge.
However, it is now apparent that there may have been a fundamental difficulty about the validly of the marriage, in particular, whether it should have been solemnised by the priest.
Should the wife be given leave it would be necessary for her to file an affidavit explaining the circumstances of the marriage and the question of the witness.
Conclusion
In the circumstances of this case I am of the view that there is marginal utility in such an appeal. The only argument appears to be that there is some doubt about whether the marriage of Mr and Mrs Mears is a legal marriage, as they did have one witness under the age of eighteen.
As both the wife and the husband ask that the Family Court of Australia decide this matter leave should be given.
I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 23 May 2011.
Associate:
Date: 7 June 2011
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