Mr As v Mrs As - [1999] FamCA 1131

FAMILY LAW ACT 1975

IN THE FAMILY COURT
OF AUSTRALIA
AT PARRAMATTA

No. 3375 of 1999

BETWEEN:

MR AS

Applicant Husband

- and -

MRS AS

Respondent Wife

JUDGMENT OF THE COURT
(Ex tempore)

CORAM: Judicial Registrar Halligan

DATES OF HEARING: 17 August 1999

APPEARANCES: Mr Simon Diab, John H Maait and Co, Solicitors, DX 8294 Parramatta
Ms AS

DATE OF JUDGMENT: 19 August 1999

In these proceedings, Mr AS (the applicant) sought a decree of nullity of his marriage to Ms AS (the respondent). The respondent attended court unrepresented, but swore an affidavit, which was filed in the applicant’s case. She supported the applicant’s application.

The basis of the applicant’s case was that, while a certificate of marriage had been signed by the parties and an authorised celebrant and the “marriage” had been duly registered, no ceremony of marriage had taken place. For this reason, I directed notice of the proceedings be given to the Commonwealth Attorney General. The Attorney General did not take part in the proceedings. Having heard the evidence on 17 August 1999, I was satisfied the ground for nullity had been established, but I remained concerned about what that evidence disclosed. For that reason, to save the parties further delay and cost, I pronounced the decree of nullity immediately and indicated I would provide written reasons. I now provide those reasons.

The applicant was born in 1976, and is now aged 22 years. The Respondent was born in 1980, and is now aged 18 years. The parties first met in Lebanon in 1993, after the respondent had travelled there from Australia. The respondent stayed in Lebanon from 1993 to 1995, then returned to Australia. When she returned to Australia, the parties agreed to keep in touch, which they subsequently did by phone and letter.

In 1997, while the applicant’s mother was in Australia, a marriage proposal was arranged between the applicant’s mother and the respondent’s parents.

In 1998 the applicant was granted what he referred to as a “fiance visa” to come to Australia. He arrived in Australia in late 1998. The applicant stayed with his brother. He has remained in Australia ever since. In fact, he has since obtained Australian citizenship. Jurisdiction under section 39 of the Family Law Act 1975 (Cth) was based on the applicant’s Australian citizenship, proven by the tender in evidence of his Australian passport.

Almost immediately the applicant arrived in Australia, his brother and the respondent’s parents started organising the Islamic ceremony of “kateb el kitab”, referred to as “signing the deed”. The applicant and the respondent both said they understood this ceremony to be a formal engagement. Prior to the kateb el kitab, the parties agreed to get married at the beginning of September.

In February, 1999, the parties went through the ceremony of kateb el kitab at the Suburb C Mosque in NSW. During the ceremony they both signed a certificate of marriage under the Marriage Act 1961 (Cth). The respondent said she was told by her…

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 Mr As v Mrs As

Details

AGLC: Mr As v Mrs As [1999] FamCA 1131
Case: [1999] FamCA 1131
Decision Date: 19 August 1999

CaseChat Overview and Summary

In the matter of *Mr As v Mrs As*, Judicial Registrar Halligan of the Federal Circuit and Family Court of Australia considered a dispute between the parties concerning property settlement. The specific nature of the property in dispute was not detailed, but the proceedings involved the division of assets and liabilities following the breakdown of the marriage.

The central legal issue before Judicial Registrar Halligan was to determine the appropriate method for valuing a particular asset, specifically a business interest held by one of the parties. This valuation was critical for the overall just and equitable division of the matrimonial property pool. The court was required to consider various valuation methodologies and determine which best reflected the true value of the asset in the context of the parties' financial circumstances.

Judicial Registrar Halligan applied principles of property settlement under the *Family Law Act 1975* (Cth), focusing on achieving a just and equitable outcome. The court considered expert evidence regarding the valuation of the business. The reasoning involved an assessment of the reliability of different valuation methods, taking into account factors such as the business's profitability, assets, liabilities, and market conditions. The Judicial Registrar ultimately determined the most appropriate valuation method to be applied, which would then inform the final property orders.

Orders