NOWLAND & OXLEY
[2010] FMCAfam 1492
•22 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NOWLAND & OXLEY | [2010] FMCAfam 1492 |
| FAMILY LAW – Property applications – application made out of time – Nigerian customary and traditional marriage – validity of marriage. |
| Family Law Act 1975, ss.113, 44(3), 79, 102 Property Relationships Act 1984 Marriage Act 1961, s.88(d) Nigerian Marriage Act of the Federation 2004 Revenue Collection Miscellaneous Provisions Edict 1972 |
| Re Taylor (deceased) [1961] 1 All ER 55 Jacombe& Jacombe [1961] HCA 25; (1961) 105 CLR 355 Axon & Axon [1937] HCA 80; (1937) 59 CLR 395 Lester & Lester (2007) FamCA 186 |
| Applicant: | MR NOWLAND |
| Respondent: | MS OXLEY |
| File Number: | PAC 3097 of 2010 |
| Judgment of: | Harman FM |
| Hearing date: | 22 September 2010 |
| Date of Last Submission: | 22 September 2010 |
| Delivered at: | Parramatta |
| Delivered on: | 22 September 2010 |
REPRESENTATION
| Solicitors for the Respondent: | Mr Ugochukwu |
ORDERS
That pursuant to s.113 of the Family Law Act 1975 I declare that I am satisfied as to the validity and the existence of a marriage between the parties having been formalised on one or either of 8 June 1996 and/or 14 April 1998.
Pursuant to s.113 of the Act I declare that I am satisfied as to the validity of the divorce order made in the Magistrates Court of Imo State, Nigeria, 15 July 2005.
On the basis of the above findings I am satisfied that this Court is seized of jurisdiction to deal with any issue of financial adjustment or property division as between the parties, and pursuant to s.79 of the Act.
That pursuant to s.44(3) that leave is granted to the applicant to commence and to maintain proceedings for property relief under Part VIII of the Act.
That within 21 days the respondent is to file and serve a financial statement together with an affidavit setting out sufficient information to comply with the Court’s rules as regards issues of property adjustment.
Within 21 days thereafter, the applicant is to file and serve any amended response together with any further or amended - sorry, any amended application together with any amended financial statement as he considers appropriate.
I adjourn these proceedings for further mention and directions before me for mention and directions before me, 2.15 pm, Tuesday, 16 November 2010
I direct that each of the parties forthwith and within 48 hours do all things, sign all documents and give all consents, authorities and instructions necessary to cause the immediate discontinuation of proceedings before the District Court, Parramatta and under the provisions of the Property Relationships Act 1984.
A copy of these orders is to be forwarded as a matter of urgency to the Parramatta Registry of the District Court.
I restrain each of the parties from continuing any proceedings, as referred to above, before the District Court, noting that this Court upon the basis of the above declaration has sole jurisdiction to deal with the matter as a matrimonial cause.
IT IS NOTED that publication of this judgment under the pseudonym Nowland & Oxley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3097 of 2010
| MR NOWLAND |
Applicant
And
| MS OXLEY |
Respondent
REASONS FOR JUDGMENT
These proceedings come before me today with respect to property applications and responses filed by each of the parties.
The proceedings were commenced by Mr Nowland by application filed 2 July 2010. That application sought orders pursuant to s.79, and also sought an interim or interlocutory order for leave, pursuant to s.44(3), to institute proceedings out of time, it being the husband’s evidence that the parties had been married, and were divorced in 2005, and accordingly at the time of filing his application he was nearly five years out of time.
The response filed in the proceedings by the wife on 13 September 2010 sought a number of orders as follows:
(i)an order that the applicant’s application be dismissed with costs;
(ii)an order that the orders sought by the applicant be denied;
(iii)an order that the Court stay making any property order, adjustment and/or settlement until the issue of marriage and/or the parties’ de facto relationships is determined;
(iv)an order that the applicant and respondent were never married, which I interpret as being a declaration;
(v)an order that the parties lived in an on-and-off de facto relationship between March, ending 1999, and mid-July 2005;
(vi)an order that the parties be given the opportunity to mediate and consent to jurisdiction, pursuant to the Act,
(vii)an order that in the event that the Court intends to make any property adjustment settlement for the parties it should make such order under and pursuant to the Property Relationships Act, [which, of course this Court cannot do].
That is relevant, however, as the parties also have on foot, and the evidence would suggest that there is either a part-heard matter or that proceedings are in fact listed for hearing, either to commence or conclude on 29 September 2010, being exactly a week away. When the matter had been before the Court on 9 August 2010 the jurisdictional quandary was identified, it being noted that on the evidence of the parties there is precious little that is in fact agreed, and the one matter that the parties seem at one on is that they separated in July 2005. Accordingly, in either jurisdiction they were out of time.
That would appear to be an issue, I am told in submissions by the respondent’s representative that has been addressed by the learned trial judge in the District Court of New South Wales, and determined on the basis of being satisfied that he or she is satisfied that their Court has jurisdiction.
I was also informed that the State Judge had declared that he was satisfied that there was no marriage. However, that is not a declaration that the District Court in its State jurisdiction is competent to exercise, that being declaratory relief with respect to the Marriage Act 1961, and arising from this Court’s declaratory power in s.113 of the Act, and of necessity being a matrimonial cause, as defined in s.4, and accordingly within this Court’s sole jurisdiction.
But, in any event, that is not a matter of any great moment, nor is it intended in any way to be in any way critical of the District Court. I do not have the benefit of seeing the material filed in the District Court, but on the basis of the material filed in this Court I assume that the learned State Judge had the same difficulties in wading through a morass of almost entirely conflicting evidence, as this Court is faced with. However, on 9 August 2010, which was the first return date of the proceedings, I had made a number of orders, including granting leave to the applicant to make an oral application for a declaration of validity of marriage, because that was a matter that would assume some real significance.
I made directions for the filing of further material by each of the parties, and adjourned the matter to today for a hearing estimated half a day.
The directions as to filing material have been partially complied with, but in any event, and irrespective of the date of filing, I now have material from both parties. The substantial issue that falls for this Court to determine today is not in relation to the merit or absence thereof of the parties’ respective cases, save to the extent that this would have some impact with respect to the relief sought pursuant to s.44(3). The real gravamen of today’s determination relates to the very simple proposition as to whether these parties were ever legally and validly married to each other.
In that regard there is a quantity of material, both lay and otherwise, in the proceedings. The applicant has filed three affidavits in the proceedings, being an affidavit filed 2 July, at the time that his application was lodged with the Court, and two further affidavits, filed respectively 8 and 20 September 2010. The respondent, for her part, has filed an affidavit 13 September 2010. The affidavits that each party have filed also annex affidavits sworn and declared overseas, particularly in Nigeria, by other witnesses.
In the father’s case there is an affidavit – or, indeed, a number of affidavits by a Mr M, who deposes to being a legal practitioner in Nigeria. The respondent for her part has attached to her material a number of affidavits by lay witnesses, which purport to go to the non-existence of a marriage, and the non-occurrence of a marriage ceremony. There are in total nine such affidavits.
Background:
The parties are each born in Nigeria. The applicant was born [in] 1964, and accordingly is presently 46 years of age.
The respondent was born [in] 1963, and is accordingly also 46 years of age.
The respondent emigrated to Australia in March 1986, and whilst the evidence is somewhat unclear it would appear has, since that time, obtained Australian citizenship, or at least permanent resident status, and has predominantly lived in Australia since arriving here.
The applicant came to Australia somewhat later, and the circumstances of the applicant coming to Australia have some relevance to these proceedings, particularly with respect to the respondent’s evidence, and annexure F to her affidavit, being an application for migration to Australia.
It is asserted by the respondent that the parties were never married in any form or fashion. It is asserted in the applicant’s case that the parties were indeed married and had, in fact, divorced.
A number of documents are annexed by each party to the material filed by them although there are three documents of some particular significance annexed to the applicant’s material. The first document purports to be a marriage certificate, or a certificate of marriage, under the Nigerian Marriage Act of the Federation 2004 - the certificate of marriage was the subject of some cross‑examination of the applicant, and I will return to that.
The other documents which were annexed and in evidence in the proceedings, both as originals or copies are a certificate of registration of marriage form under the auspices of the Revenue Collection Miscellaneous Provisions Edict 1972 from Nigeria, which asserts a number of facts, including the marriage of the parties on 4 April 1998, which is a date consistent with the certificate of marriage. That document does not have any readily apparent date of completion, but one can assume from its terms that it was in fact completed in April of 1998 at the time that the certificate of marriage and registration of marriage was issued.
The other document that is produced and is of some relevance, in relation to the marriage itself, is an order of Court affirming the dissolution of customary marriage, which purports to be dated 15 July 2005, and issued by a Magistrate, whether Senior, Chief or otherwise, of the Magisterial District of Holden at Owerri in Nigeria, which grants a divorce of the parties’ marriage. There is some difficulty with that document, not necessarily as to its authenticity, although that is also challenged, but because the various dates referred to in the document could not possibly all stand.
It refers to the parties having been married on 14 April 1998, which is consistent with the certificate of marriage. It purports to dissolve the marriage by order made 15 July 2005. The difficulty with that is that whilst the respondent asserts separation from whatever form of relationship in early July 2005, the applicant asserts separation occurred on 16 July 2005, i.e., the day after the divorce. The document also, by its terms, refers to events occurring on 15 October 2005, being some months after the actual order was made, and events, which if they had occurred must, at the very least, have been anticipated.
But that is not the applicant’s document, and accordingly it can not be an issue as to his credit. The applicant did not arrive in Australia until about 1999, and prior to that arrival, as I have indicated, and appearing as annexure F to the wife’s affidavit an application for migration to Australia was completed. The respondent’s evidence in paragraph 30 of her affidavit, which refers to the annexure, is as follow:
Some time in early 1996, through my then lawyer, I made and submitted a partner’s application to sponsor Mr Nowland –
Mr Nowland being the applicant. It then goes on in paragraph 31 to indicate:
I received a support letter dated 27 September 1996 included in my partner’s application from my then pastor, [and that forms part of annexure F].
It indicates in paragraph 32:
I refer to a note on question 17 of the application for migration where the word “marriage” was ticked, but no date of marriage was entered.
It then makes clear that the applicant entered Australia on or about 31March 1999, and suggests that the parties then commenced to live together in a de facto relationship. Neither party gives any real evidence, and certainly the respondent’s evidence is silent as to what relationship had occurred prior to the applicant’s arrival in Australia, (other than denying the existence of marriage). It is entirely unclear whether the applicant alleges that the parties were acquainted, closely acquainted, or any other form of relationship or connection. That evidence is simply not placed before the Court by the respondent.
The balance of the evidence is entirely disputed. These parties do not agree on anything, other than their separation in July of 2005.
Also in evidence are a number of photographs, both of the applicant’s recent re-marriage, as well as photographs of what the applicant deposes to being the cultural or traditional wedding ceremony which occurred, and which gives rise to a claim of valid marriage on his part via exhibit F2 in the proceedings. During the course of cross‑examination regarding those photographs it was conceded by the applicant that the respondent was not in fact present at the ceremony.
His evidence was that this was not unusual, and that it was a common occurrence with respect to cultural or traditional weddings, and that a substitute or proxy could stand in, provided, however, that there was requisite compliance with the balance of matters that relate to, and render valid, a traditional marriage. The traditional marriage that is asserted in the applicant’s case did not occur on the date referred to on the certificate of marriage, being 14 April 1998. The traditional marriage that is asserted by the applicant had occurred, in fact, some time earlier, and on 8 June 1996. The applicant in his initiating affidavit indicates at paragraph 7:
On 8 June 1996 Ms Oxley and I married in Nigeria in a traditional Nigerian ceremony at the Court Registry. Annexed hereto and marked A is a true copy of the Nigerian affidavit of marriage by our client [sic] dated 10 June 1996.
The document that is then annexed to the affidavit is headed Affidavit of Marriage, Government of Imo State of Nigeria, and the deponent is the applicant. He indicates that the parties have married on 8 June 1996, and the document is itself attested 10 June 1996. What is apparent, however, from the oral evidence today is that the ceremony that is referred to by the applicant most clearly did not occur at a court registry. It occurred in the compound of a family home, and the photo shows certainly what would appear to be a celebration, but nothing more.
As regards the discrepancy between the two events, i.e., the traditional marriage asserted on 8 June 1996 and the certificate of marriage, 14 April 1998, the applicant has given some evidence. There has been no cross-examination of the respondent in the matter, and her evidence is unchallenged. The disparity addressed by the applicant in his evidence is, as I comprehend it, on the following basis:
(a)the parties had discussed, and, on his evidence, consented to marriage on or before 8 June 1996;
a)on 8 June 1996 the traditional marriage proceeded;
b)following the traditional marriage application was then made for the applicant to emigrate to Australia. That is indeed the subject of the evidence referred to above, and in particular annexure F, being the application for migration form which was completed in early October 1996, being some few months after the alleged traditional ceremony. That document, again it is to be remembered, ticks the box to indicate that marriage had occurred, but no date;
c)following submission of the application for immigration it is asserted in the respondent’s case, and also by the applicant, that the Department of Immigration required some further documentation to verify matters. The applicant’s evidence, as I take it, is that as it was a traditional wedding, which, whilst valid and recognised under Nigerian law, clearly did not have any formal document to verify or recognise it. As a consequence:
d)the applicant asserts that he then attended for the purpose of obtaining a marriage certificate, and that this is, in fact, the document annexure B both to his initial affidavit and to the respondent’s affidavit. Turning to the certificate of marriage, it purports to be a document issued by the Owerri Municipal Council Office in Nigeria. It refers to a marriage between the applicant and respondent, and it refers to two other people being present, one of whom I am told in the applicant’s oral evidence is related to the respondent, one is a close friend or relative of the applicant. The document then purports to be produced on 14 April 1998, and the applicant’s evidence is that he had gone to the Registry on that day to complete it, and that again the relative of the respondent had stood in as a proxy for the purpose of that certificate being issued.
That gives rise to a number of issues, and at that point in the proceedings a warning regarding the possible consequence of the evidence being given by the applicant was raised, particularly to the extent that the certificate of marriage purports to recognise a marriage that occurred on 14 April 1998, which would not appear of itself to be correct, and could be taken to represent a fraud on the Department of Immigration. However, there is no evidence to suggest whether the circumstances that are described by the applicant, i.e., the standing in of a proxy on the respondent’s part, is or is not legally appropriate or acceptable under Nigerian law.
Indeed, there is very little evidence regarding the state of Nigerian law, which is the law which is to be applied in determining the validity of this marriage. Very little evidence, that is, save the evidence of Mr M which is annexed to the applicant’s material.
Turning to Mr M’s evidence he says as follows:
I am at 15 year old lawyer in Nigeria –
and I pause to add at that point that I take it to be, particularly from the following paragraph indicating admission and calling to the Nigerian Bar in 1995, that it is intended to suggest 15 years of experience as a lawyer, rather than 15 years of age. It goes on to give the following evidence:
I have gone through the marriage registration document before me bearing the names of Mr Nowland as husband, and Ms Oxley as wife with the witnesses Mr O and Ms O, and I do hereby certify that this is a valid document evidencing the valid marriage between Mr Nowland and Ms Oxley under the Nigerian Marriage Act of the Federation 2004.
Against, dates would appear to be somewhat problematic in documents that are produced in this case, and indeed from Nigerian authorities, and I do not intend that to be critical of Nigerian authorities at all, other than clearly the certificate itself indicates that the Marriage Act is not from 2004 but 1974. Indeed, during the course of the matter I have paused to go to the website for the Nigerian court system and legislation, which bore a number of dates with respect to the legislation, including one referring to 1914, which is clearly incorrect, but it would appear to be formal legislation, unrelated to the present Act.
The evidence of Mr M also goes to two important aspects of this case. A second affidavit is produced that says as follows:
There is a law guiding customary and traditional marriage in Nigeria. Every tribe in Nigeria has their respective law guiding traditional marriage. Any marriage made in accordance with the customary law of the land is valid. 99 per cent of the marriage ceremony in Nigeria today is done traditionally, and in accordance with the customary law of the land.
Also then attached is a letter, which would appear to be in the form of an advice provided by Mr M dated 11 August 2010, which indicates as follows:
Traditional customary marriages expressly provided under the customary law of the Nigerian nation. The common customary law marriage is that marriage between a man and a woman. [That then deals with and obviates the difficult that might arise under the Australian Marriage Act which would not recognise marriage between same sex couples irrespective of their legitimacy under the law of the jurisdiction in which the marriage occurred]
Traditional customary law marriage presupposes the union of the husband and the wife to the exclusion of all others. [That again, in terms of the definition of marriage contained within our Marriage Act is consistent. Although consistency with Australian marriage law is not the test, it’s validity and recognition under Nigerian law is what is relevant in this case]
It continues:
Before a traditional marriage is said to be valid the following essential agreements or requirements must be completed or fulfilled:
i)there must be consent of the bride and her parents or guardians;
ii)there must be capacity to marry;
iii)there must be payment of bride price or dowry;
iv)there must be a formal giving away or hand over of the bride to bridegroom by the family.
It is trite law that upon the fulfilment of these essential elements the traditional marriage becomes valid.
Each of those elements has been addressed in the evidence and including during the cross-examination of the applicant. The applicant’s evidence is that consent was given by the respondent on or shortly before the date of the traditional marriage ceremony in 1996. The evidence would appear to be clear that the respondent’s father was deceased at the time of that ceremony and that her mother, who is identified in photographs tendered by the applicant, was present at the ceremony and gave her consent. As to the capacity to marry, there was some cross-examination regarding a previous marriage of the respondent and difficulties with the Department of Immigration in Australia when a certificate of divorce regarding that marriage could not be produced.
The applicant’s evidence appears to suggest that when that document was not available the certificate of marriage was then produced to which I have previously referred. In any event, there is nothing to suggest and it is not asserted that as of the date in 1996 that either party was still legally married to any other person.
The third element is that there must be payment of a bride price or dowry. The affidavit completed 10 June 2006 refers to and suggests this. The certificate of divorce in 2005 refers to and corroborates the same amount.
In terms of the final element there must be a formal giving away or handover; questions were put to the applicant during his oral testimony as to how this could have occurred when the respondent was not physically present. It was suggested, and there is no evidence led to contradict it, that the formal giving away could occur by a proxy. As to whether that is the case or not under Nigerian law, the advice provided by Mr M does not extend, but if I accept the balance of the evidence there is no reason to cavil with that assertion.
Turning then to relevant case law, the most relevant decision which would appear applicable to the circumstances of these parties is a decision of Lord Evershed and Harman and Donovan JJ from the case of Re Taylor (deceased) [1961] 1 All ER 55. The issue in that case was to determine - absent any proof of registration of a marriage or the production of a marriage certificate – whether a claimant on an estate was in fact the spouse of the deceased. It quoted a number of previous authorities and in the following terms:
Where a man and woman are proved to have lived together as man and wife the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage.
I take that passage as a statement of the law which ought to be applied in a case like the present and I note the adverb “clearly”. There are certainly some issues in dispute and a lack of clarity as to what has occurred. Although there would not appear to be any substantial dispute between the parties that they have certainly lived together and absence any evidence to suggest the nature of their relationship between June 1996 and the application for immigration, October 1996, I have some difficulty in doing other than to infer that the parties considered themselves in some form of relationship.
It is certainly suggested in the respondent’s material that whilst the parties were not married they intended to, and that upon arriving in Australia that that was to occur, although clearly it did not happen here.
Other case law of some relevance arises from a decision of Jacombe & Jacombe [1961] HCA 25; (1961) 105 CLR 355 from wherein Dixon, Fallagar and Menzies JJ in the New South Wales Supreme Court then seized of matrimonial jurisdiction had the following to say as regards contest as to the validity of marriage:
In a case where the performance of the marriage ceremony –
and it is to be remembered the applicant asserts that occurred, the respondent denies it –
is followed by the parties living together as man and wife. The performance of the marriage ceremony itself raises a presumption of the validity of marriage and upon this point it is not necessary to do more than to cite from the judgment of present Chief Justice in Axon & Axon [1937] HCA 80; (1937) 59 CLR 395. Upon proof that a marriage ceremony has been duly performed between herself and the respondent a presumption arose in favour of the validity of the marriage. It is said that the presumption is confined to the regulatory and efficacy of the ceremony as a lawful mode of marriage.
This, in my opinion, is correct. The presumption in favour of the validity of a marriage, duly cerebrated, casts upon those who deny it the burden of producing reasonable evidence of the fact which renders the marriage void. Whether that fact is an impediment consisting in a prior marriage or a prohibited degree of relationship or the failure to fulfil some condition indispensable to the efficacy of the ceremony.
Furthermore, proof that the parties lived together and were accepted as man and wife raises a presumption that they were validly married, which is rebuttable only by clear and cogent evidence and without suggesting that in a case like this that the presumption arising from the cohabitation would, by itself, suffice to prove a marriage, it is another element to be taken into account in considering whether or not the circumstances as a whole do.
Since the above decisions jurisdiction has passed to the Federal system, and the Family Law Act has been enacted. The Family Law Act contains a number of provisions of relevance to the relief that is sought. As I have indicated, s.113 of the Act provides this Court’s declaratory jurisdiction, and provides that:
In that proceedings of the client referred to in paragraph (b) of the Definition of Matrimonial Cause in subsection 4(1), the Court may make such declaration as is justified.
Turning to the definition in s.4, Part B proceedings are:
Proceedings for a declaration as to the validity of a marriage or divorce or annulment of a marriage by decree or otherwise.
Accordingly, and as I previously remarked, Courts exercising Federal authority under the Act, which are in limited circumstances local courts, but not otherwise within the State system, and the Family Court and Federal Magistrates Court have sole jurisdiction to grant such declaratory relief, and to the extent that any declaration has purported to be made in any other jurisdiction it would be null and void.
That then gives the Court the power to deal with, and entertain this application. Section 102 of the Act goes to issues of proof. Section 102 of the Family Law Act provides:
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 certified copy of a certificate inter alia of marriage alleged to have taken place, whether in Australia or elsewhere.
Section 88(d) of the Marriage Act deals specifically with the recognition of foreign divorces, and I am satisfied that the requirement under that section is that if the marriage is recognised, and subject to other exceptions regarding principally same-sex marriages, by the law of the jurisdiction in which the marriage is purported to have occurred, then that marriage is recognised in Australia as valid.
The quandary in this case is that there are in fact two dates asserted, and they arise for different purposes. Based on the evidence of the parties as a whole I am satisfied that indeed a traditional wedding occurred between these parties, as asserted, in June of 1996, and specifically on 8 June 1996.
That is what is deposed to, not only in the applicant’s evidence in this case, but also in the affidavit of marriage that was completed contemporaneously or nearly on 10 June 1996. Based on the evidence that is available I am satisfied that the certificate of marriage evidences a marriage that is valid pursuant to section 102 of the Act. Mr M has cited the document, indicates having undertaken some inquiry, and certifies that it is correct, and deposes that is represents a valid document and a valid ceremony.
I am satisfied, based on the advice provided by Mr M, and it is the only evidence in relation to the law that is before me, that the traditional marriage ceremony that occurred on 8 June 1996 represents a valid marriage in accordance with Nigerian law, and accordingly, pursuant to s.88(d) of the Marriage Act, should be recognised as valid in this country.
Having arrived at that point, it then becomes an issue as to what one is to do. The urgency that has caused the matter to proceed today, notwithstanding that at the outset of the matter the applicant had indicated that he has parted company with his lawyer, and I can infer that he was seeking an adjournment. I have chosen to proceed with the matter.
That is principally because there are proceedings pending and listed for hearing in another jurisdiction and a very real issue as to which legislation applies, let alone which jurisdiction is properly seized of the matter. Having taken that view, and also by reference to the decision of the Full Court comprising, Kay, Warnick and May JJ in Lester & Lester (2007) FamCA 186, I am satisfied the circumstances of this case are not dramatically dissimilar in a number of respects.
That case had dealt with an application for a declaration of validity or non-validity of a marriage that had occurred in Ghana. Similarly, a marriage certificate was not available. It was asserted in that case that the date of marriage could not be remembered. That is a matter upon which very little has turned in this case, but similar evidence being given as to how the relationship occurred, and, importantly, how the parties dealt with and proceeded with each other. It has not been suggested in submissions, but it may well be inferred, that whilst the respondent’s evidence is that the applicant was sponsored to come to Australia to undertake a marriage ceremony, (and that marriage ceremony never occurred), that this could well be because the parties considered themselves married.
I also have some comfort in the acceptance of the validity of a marriage between the parties, irrespective of whether it is that which occurred clearly at the Municipal Office on 14 April 1998, or the traditional ceremony alleged on 8 June 1996, as the parties have, in fact, been divorced by a Nigerian Court, which recognised a marriage, albeit it that it is asserted by the respondent that the Court was misled by the statement, “Their customary marriage was contracted on the 14th day of April 1998.” Clearly the evidence of the applicant is that the customary marriage had occurred in 1996. However, and it is the marriage evidenced by the certificate of marriage in April 1998 which was in fact dissolved by the Court.
But on any basis, and in the absence of some serious contest to the ceremony that occurred, can I be satisfied that either of the marriages was not legally or validly recognised? The fact that the divorce order refers to a customary marriage as being that which is dissolved again gives me some reassurance that what Mr M has referred to in his letter of advice is indeed correct, and that Nigerian law recognises traditional marriage. As a consequence of the above findings I make the following orders;
Having made the above orders, there then remains the issue of leave, pursuant to s.44(3). Clearly, no matter which jurisdiction these parties are in, they are out of time. That would appear to be a hurdle that has been overcome by the respondent in the District Court proceedings, as the matter in which he is the plaintiff is proceeding and has done so to date.
In these proceedings, the evidence that is before me is, no doubt, similar. It is suggested in the husband’s case that he had delayed as he was attempting to address the relationship and, further, had been attempting to address matters between the parties on the following basis:
The reasons why I have not brought is [sic] matter to Court before now was I thought we can settle this matter traditionally by the Elders here amicably.
Ordinarily, that would not of itself represent particularly strong grounds, pursuant to s.44(3), but added to that is also the respondent’s evidence that in the District Court proceedings there had been delay as there was severe disruption of the parties’ relationship and a suggestion that there was no knowledge of or no means of being able to contact and attempt to negotiate and resolve matters, as a consequence of a lack of knowledge of the applicant’s whereabouts.
The applicant in his evidence gives some indication of property that has been purchased during the relationship, particularly in paragraphs 17 onwards of his first affidavit, filed 2 July 2010. It is unclear from that material whether the properties that are referred to are owned in joint names or whether solely in the respondent’s name, although it is suggested, in paragraph 19:
Ms Oxley was extremely secretive in relation to finances.
And it is also asserted, perhaps as an admission against interests, by the applicant that a number of transactions have occurred since separation and in paragraph 31, he asserts:
I have made no contribution to either the [R] or [H] properties following separation.
He also indicates in paragraph 32:
I have had no contact with Ms Oxley since separation. As a result, I have limited knowledge of the current financial situation. As a result, it may be necessary to amend my initiating application following disclosure.
All of that suggests to me that there is, at least in a cultural context, some reason for delay, if not, as asserted by the respondent, some real, practical and logistic impediment to proceedings having commenced earlier. The cultural context is not insignificant. Both of these parties are from Nigeria. The material filed in the father’s case would suggest that his literacy is a recent thing and certainly documents that have been completed by him in Nigeria have been read to him with an illiteracy jurat appended.
Those difficulties aside, the cultural aspect of the matter and the plea, if it might be called that, made in the father’s material: that he had had a desire to resolve things in a traditional and culturally appropriate fashion through the assistance and intervention of Elders gives me some reassurance that both parties have delayed. The respondent has had the benefit of a determination already granting her leave. One would presume, as noted previously, the only issue as to which these parties agree is that their separation occurred in July of 2005 and both parties clearly have issues that need to be dealt with.
As regards whether the applicant has established a good case or not, it is clear from his own evidence that he is somewhat limited in information at the moment. Appropriately, the only document that has been filed in these proceedings by the respondent is a response which challenges the Court’s jurisdiction and which also, it should be noted, seeks as an interim or procedural order:
An order to determine which Court has the jurisdiction over this matter: the District Court of New South Wales or the Federal Magistrates Court of Australia.
No financial statement has been filed. Until such time as either the respondent submits to the Court’s jurisdiction or the Court makes declarations, as has now occurred, there is no compulsion for the respondent to join the fight, as it were. Those are matters that will be addressed shortly, with some directions. But in any event, I am also satisfied for the above reasons that leave should be granted and accordingly I make the following further orders:
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 1 August 2011
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