Melhem v Garbett SM

JUDGMENT No. L'6L:'

....

l &L?

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY )

No.NG 610 of 1997

GENERAL DIVISION

)

Between: THERESE MELHEM

Applicant

And: JAMES GARBETT SM

Respondent

FEDERAL COURT

OF AUSTRALIA

2 1 J A N 2003

LIBRARY

REASONS FOR JUDGMENT

EINFELD J	SYDNEY	18 AUGUST 1997
Introduction

Therese Melhem, who lives in Beirut, Lebanon, first applies for permission to file out of time an application for an order of review of a decision of the respondent magistrate given in the Waverley Local Court on 8 May 1997 refusing her permission to marry below the marriageable age as prescribed by the Marriage Act 1961 (the Act). She is now 17% years old and is 7 months pregnant with her fiance's child. I give leave for the motion to be returned and heard immediately. I am informed that service has been effected on the magistrate for whom there is no appearance today.

Section 11 of the Act provides that a person is of marriageable age upon obtaining the age of 18 years. Section 12 (1) provides that if a person has attained the age of 16 years but not 18

years he or she may apply to a Judge or a magistrate in a State or Territory for an order authorising the marriage despite not being of marriageable age. Subsection (2) provides that the Judge or magistrate shall thereupon hold an inquiry, which is referred to in section 18(2) as a private inquiry, meaning that it is apparently not open to the public. If satisfied upon

inquiry that the applicant is 16 years old and the circumstances

of the case are

so exceptional and unusual as to justify the making of

the order

the Judge or magistrate may make the order sought but otherwise

shall refuse the application.

The respondent magistrate decided that the circumstances

do appear to be exceptional and unusual

but that they were not so exceptional and unusual as to justify the making of the order. As a consequence, he refused the order.

The application which is the subject of this matter was in fact the second application made to a court for this permission. It appears that some time earlier in 1997 the applicant's fiance made an application to the Blacktown Local Court for permission but no one attended the Court on that day to advocate the

application and it was apparently dismissed without a hearing at all. The fiance's explanation in this regard is that he did not understand what he describes as the "great complexity" of the matter. As a consequence he did not arrange for the applicant to be legally represented and she being in Lebanon was unable to appear herself. He himself was apparently at work at the time.

Jurisdiction of the Federal Court

The first question to be determined is whether this Court has jurisdiction to deal with the matter at all. As I read the Act,

there is no provision for an appeal from a magistrate's decision in such matters. There is provision in section 17 for the

rehearing of cases where magistrates refuse permission following a refusal of consent by a person whose consent to the marriage is required or where an under-age person has sought an order

dispensing with the consent of such a person. However, there

does not appear to be any provision for the rehearing of or an

appeal from a decision of a Judge or magistrate refusing to make

an order under section 12(2) of the Act as here.

On the other hand, the Act does not limit the number of times upon which such an application can be made nor, subject to the Act, the number of Courts which may be approached. The word 'Judge' in a State or Territory as it appears in section 12(1), is defined in section 5 of the Act as a Judge of the Family

Court, a Judge of a Court of a State in respect of whom an

appropriate arrangement under section 9 is in force, or a Judge of the Supreme Court of the Territory. Section 9 provides that the Governor-General may make arrangements with the Governor of a State for the performance by State Judges of the functions referred to, inter alia, in section 12. Although the same provision is apparently used to provide State magistrates with the power which was exercised in the present case, I am not informed as to whether there is an arrangement in place in

respect of Supreme Court Judges of this State.

On the other hand, a recent memorandum to the Chief Executive Officer of the Family Court from an officer of the Attorney General's Department, which has been made available to me, stated that there was a recent appeal to the Supreme Court of Western Australia from a magistrate's decision to refuse such an application. It included a quotation from the Judge who heard the matter that it was necessary to make an order under the cross-vesting legislation to his own Court, the Supreme Court, "notwithstanding the general rule that special federal matters should be heard by the Federal Court". The memorandum also referred to the fact that Justice Moore in this Court held in a recent case that a decision in relation to under-age authorisation was a decision of an administrative character and was therefore presumably subject to the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act). I have

not been shown or given a reference to either of these

decisions. The memorandum did not provide the Family Court with

copies of or references to them.

The decision in Western Australia seems to have proceeded upon the premise that the Federal Court had some jurisdiction in the matter in the first instance. While I must confess to some doubts about the use of the cross vesting legislation, I am

certainly not in a position to use that legislation in the same way. At best I could only do so if there was in place a section

9 arrangement between the Governor-General and the Governor of

New South Wales which would have given jurisdiction in the matter to the Supreme Court of New South Wales.

It seems clear that a Federal Court Judge does not have original jurisdiction to deal with an application under section 12(1).

Moreover, as there is no provision in the Act for rehearings or appeals in such cases as the present, it does not appear that an appeal from a magistrate can be lodged at all, let alone to the Federal Court. That no doubt underlies the present application which the solicitors for the applicant have determined should be brought under the Judicial Review Act rather than in reliance

upon any either original or appellate jurisdiction in the Federal Court. I believe, apparently with Justice Moore, that an inquiry under section 12 of the Act bears an administrative character. As the Act is not excluded by the schedules to the Judicial Review Act, I think that decisions emerging from section 12 inquiries are susceptible to review under that Act.

Delay

The circumstances of the delay in the filing of the present application reveal a quite bizarre situation for the operation of the law. The application for the order authorising the marriage was pursued before the Waverley Local Court by a solicitor retained by the applicant's fiance, to whom she is married under Lebanese law but who was not present at the hearing himself. After the hearing, the solicitor wrote to the applicant's fiance telling him that the case had been disposed of unfavourably to the applicant and that if he wished to challenge the decision he had to appeal to the Supreme Court, as he put it, "quickly". The solicitor advised that a barrister should be retained to conduct this appeal but that the costs of bringing the application would most probably equal or exceed the

cost of his travelling to Lebanon to be with his wife. The

lawyer went on to advise:

Economically it may be more prudent to apply your resources to travel to Lebanon rather than pursuing this matter through the Australian Court system.

The solicitor recommended that another lawyer be retained because he was too busy to deal with the matter, but suggested

that the applicant's fiance contact the Immigration Department to ascertain whether the applicant would be allowed to travel to Australia to marry him under Australian law in early 1998 when

she would be turning 18. After receiving that letter, the applicant's fiance made an application for legal aid but that application was refused on 24 June 1997.

The applicant's fiance then approached the present solicitor who, according to the evidence, promptly attempted to ascertain in what court the learned magistratef s decision could be

reviewed. The Family Court appeared to be undecided about the matter notwithstanding several phone calls from the solicitor and an attempt by her to file a notice of appeal in the Family Court. The documents relevant to the appeal were eventually rejected by the Family Court on 8 July but that Court referred the solicitor to the Attorney-General's Department memorandum which, in addition to the matters earlier mentioned, also suggested that "if there is an attempt to file in either the Sydney or Parramatta Registries [an application of this kind] you might wish to recommend that the couple go to the Federal Court, particularly given that the couple live in close proximity to the Sydney CBD." Of course, only one of the couple is in Australia at the present time.

Thereafter the applicant's solicitor contacted the Federal Court Registry where, after some delay, the internal memorandum of the Attorney General's Department was obtained. Eventually, on 8 August, the current application was filed. In matters of this importance to the applicant and those around her, it seems to me

that the parliamentary and legal system should be able to get

itself into sufficient order as to be able to give firm and

settled guidance to litigants and practitioners as to how and where they should proceed. Every futile telephone call or document costs money which litigants can often ill afford.

Delay is itself stressful. The community deserves better of the system than has been evidenced in this case.

E x t e n s i o n of

t i m e

The next question is whether on these facts an extension of time for filing a review application should be granted. I am persuaded that the applicant's fiance found the mysteries of the legal system in Australia just a little more than his abilities could handle. Frankly, I do not blame him. Then his lawyers could not find a way through the maze, at least partly because the registries of the Family and Federal Courts did not know either. When a way was eventually devised with the help of the Federal Court, the lawyers acted promptly. These are sufficient reasons for granting an extension of time. However, in accordance with ordinary principles, leave should not be given to file the application out of time unless the application itself has a reasonable chance of success.

The grounds of the principal application are that the magistrate's decision was unreasonable in that it took into account irrelevant factors and omitted relevant matters, and that he incorrectly applied the law to the facts by holding that

although the facts were unusual and exceptional, they were not such as to justify the making of the orders. Upon the facts as found by the respondent magistrate, I am satisfied that these

matters provide a sufficiently arguable application for an order of review and I therefore extend the time for the filing of the application to 8 August 1997 on which date it was filed.

Expedition

The next question is whether the application for an order of review should be expedited. In my opinion, the circumstances of the applicant require urgent attention such that the hearing should be expedited. I: therefore propose to proceed with the hearing immediately for the reason that, as the respondent

magistrate correctly found, no other person needs to be advised, urgency is in the public interest, and there is no harm to the community by an immediate hearing.

The facts found by the magistrate

In support of the application for an order of review, there have been filed two affidavits, one by the applicant's fiance and one

by her solicitor. The transcript of the hearing before the

learned magistrate is exhibited. As found by the magistrate, the applicant and her fiance were married in Lebanon on 3 November 1996 under Lebanese law with the consent of her parents. According to the evidence, Lebanese custom and

tradition decree that upon the marriage of a woman in Lebanon, the husband becomes responsible for her financial welfare and the woman is no longer financially supported by her parents. Of course, as the applicant's pregnancy is now well advanced, she is unable to obtain paid work to support herself and the

evidence is that she has no independent means of support.

The magistrate found, correctly as I am satisfied, that the applicant was born on 1 February 1980, notwithstanding the fact that the birth certificate seems to show that she was born one year later. The Mayor of the relevant locality has provided evidence that the registration of her birth was delayed by reason of the civil upheaval that was taking place in Lebanon at the time. The magistrate also found that the applicant is pregnant. I am satisfied by a certificate of a gynaecologist in

Lebanon - who somewhat ironically describes himself as an expert in sterility - dated 29 April 1997 that this finding was

correct. The gynaecologist actually said that the applicant was then in her sixth month of pregnancy, but if so, this baby is somewhat late. The doctor's record is presumably in error because in the affidavit of the applicant's fiance dated 4 August, he says that the pregnancy was then in its seventh month. The magistrate apparently accepted, again correctly on the evidence presented, that the fiance was the father of the child. I am also satisfied, as found by the magistrate, that the applicant is dependent upon her husband not only for spiritual and mental support but under Lebanese law also for

financial support. However, he is here working in Australia

unable to provide her with this support.

The evidence established to the satisfaction of the learned magistrate, and I accept, that the applicant has made efforts to migrate to Australia in order to be here for the birth of her child but that permission has been refused on the grounds that she is not of marriageable age and therefore cannot marry her fiance when she arrives here. She has apparently been told by an officer of the Australian Embassy in Beirut that if the Court gives permission for her to marry, she is more likely to gain permission to come here to marry her fiance.

Judicial review

I have given careful consideration to what the respondent magistrate said about this matter. His first concern was that between the Blacktown application and the Waverley hearing, there needed to be established a change of circumstances and he felt that the fact of the applicant's pregnancy, which would

have been one of the circumstances, had certainly not changed in the intervening period. In view of the fact that the Blacktown Court had no one before it to press the application, whatever happened in that Court cannot be described as a hearing on the

merits and therefore any concept of a change of circumstances is not applicable. Even if a change of circumstances had been required, it seems to me with respect that the magistrate

overlooked that, of course, the pregnancy had somewhat advanced, with no doubt a significant increase in the concern of the applicant to be with her fiance. Moreover, the more imminent the birth of her child, the more intense would be her stress at being alone for the birth itself. She is after all only 17 years old. She would also have been closer to her eighteenth birthday which would have been another change of circumstance

which the magistrate might have taken into consideration. Together they were enough, in my view, to have justified a favourable consideration of the application.

But the major question of law that has to be considered is the magistrate's interpretation of the provisions of section 12(2) of the Act. In my view this subsection requires two findings of fact by the inquiry. One is that the applicant has attained the age of 16 years; the second is that the circumstances of the case are exceptional and unusual. The magistrate found both of those facts in favour of the applicant and I agree that those findings were justified by the evidence.

But the magistrate read into the subsection a further criterion said to have been provided by the statutory requirement that the exceptional and unusual circumstances must be such as to justify the making of the order. In other words, his view was that there is something additional to exceptional and unusual circumstances that are required. The magistrate did not identify what these additional requirements might be, and for

myself, I cannot accept that the legislature had in mind establishing grades of exceptional and unusual circumstances. I think that when the circumstances are found to be exceptional and unusual, they will normally justify the making of the order, unless for example there is evidence that the woman in effect deliberately became pregnant in order to advance her interests

including for example getting around Australian migration laws.

In the absence of some such consideration, it strikes me that someone who is in an advanced state of pregnancy, is 17% years old, is not supported by her parents and is unable to work, and cannot obtain permission to enter Australia unless the Court gives its consent to her marriage here, establishes about as exceptional and unusual a set of circumstances as could be imagined. In my view, they are ample to justify the making of the order sought. With respect, the learned magistrate erred in extending the criteria of the legislation further than was intended or is justified.

Discretion

The question then is whether the order should be made in the exercise of the legislated discretion. In my opinion, once the relevant facts and circumstances are established, and the conclusion is reached that they are exceptional and unusual, it would be a rare case indeed when the discretion would not be exercised in favour of the order. There may be cases where for

example the application lacks some degree of bona fides or has been preceded by previous applications in which proffered

evidence has been established to be untrue or doubtful. In such cases it may be justified to refuse an order. But in ordinary circumstances, it seems to me that where exceptional and unusual circumstances exist, the order would normally be made. I find that the respondent magistrate erred in law by not interpreting the legislation in this way and by then applying it to the facts of this case.

Orders

I therefore order that the respondent's decision on 8 May 1997

refusing to authorise the applicant to marry her fiance in Australia be quashed and set aside. As all the facts are known, there is no purpose in referring it back to the magistrate for further factfinding. I therefore exercise the powers given to me by section 16(3) of the Judicial Review Act and order that the applicant be authorised to marry Assya Semaan despite the fact that she has not attained the age of 18 years.

1 certify th3t ?his and the

'i711an"~

pr~wecIjl.i?g

p-0-7s are a true copy of the

Rcssons fnr .Judgment herein of his Honour

Associate

Dated:

,!L/.J"77

[1997] FCA 1613

18 Aug 1997