NYGH and Kasey - [2010] FamCA 145

FAMILY COURT OF AUSTRALIA

NYGH & KASEY

[2010] FamCA 145

FAMILY LAW – MARRIAGE – Validity of marriage – Parties participated in Catholic wedding ceremony in Thailand – Marriage not registered – Application of the Marriage Act 1961 (Cth) and the common law principles of private international law – Application of the Hague Convention of 14 March 1978 on Celebration and Recognition of the Validity of Marriages – Whether the marriage not formally registered by the applicant because of a conscientious objection – Whether such conscientious objection constituted an exception to the rule that the formal validity of a marriage is governed by the law of the place of celebration (lex loci celebrationis) – Consideration of oft-quoted authority Milder v Milder [1959] VR 95 with respect to the words “against conscience” – HELD – Applicant held conscientious objection – Exception to presumption established – Marriage proved – Divorce order granted

Family Law Act 1975 (Cth) ss 48(2), 55(1), 55A(1), 113
Marriage Act 1961 (Cth) ss 88C(1), 88C(2), 88D(1), 88D(2), 88E(1), 88E(2)

Hague Convention of 14 March 1978 on Celebration and Recognition of the Validity of Marriages

Axon & Axon (1937) 59 CLR 395
In the marriage of Banh (1981) 6 Fam LR 643
Kochanski v Kochanska [1957] 3 All ER 142
Kuklycz v Kuklycz [1972] VR 50
Lester & Lester [2007] FamCA 186
Milder & Milder [1959] VR 95
In re Taylor, Dec’d (1961) 1 WLR 9
Savenis v Savenis [1950] SAS 309

APPLICANT:

Ms Nygh

RESPONDENT:

Mr Kasey

FILE NUMBER:

CAC

1537

2009

DATE DELIVERED:

2 March 2010

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

26 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr R. Friesen

SOLICITOR FOR THE APPLICANT:

Watts McCray McGuinness Eley
Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr D. Ridge

SOLICITOR FOR THE RESPONDENT:

Barker & Barker Solicitors

Orders

Pursuant to s 88E(1) of the Marriage Act 1961 (Cth), I find that the marriage of Ms Nygh and Mr Kasey of … January 1982 in Thailand is valid and, pursuant to s 113 of the Family Law Act 1975 (Cth), I find the marriage between the parties proved.
I find that the parties are domiciled in Australia and are citizens of Australia.
Pursuant to s 48(2) of the Family Law Act 1975 (Cth), I find the ground of irretrievable breakdown established.
Pursuant to s 55(1)(a) of the Family Law Act 1975 (Cth), I pronounce a divorce order of dissolution of marriage to become effective in one month’s time.
Pursuant to s 55A(1)(a) of the Family Law Act 1975 (Cth), I declare that there are no children of the marriage who have not already attained the age of 18 years.

IT IS ORDERED THAT:

The matter is removed from the pending cases inventory.
All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.
Any material produced subpoena which became an exhibit will…

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 NYGH and Kasey

Details

AGLC: NYGH and Kasey [2010] FamCA 145
Case: [2010] FamCA 145
Decision Date: 2 March 2010

CaseChat Overview and Summary

In the matter of NYGH and Kasey, the court was asked to determine the validity of a marriage and to grant a divorce. The parties involved were Ms Nygh and Mr Kasey. The court considered the legal framework surrounding the recognition of foreign marriages and the grounds for divorce under Australian law.

The primary legal issues before the court were whether the marriage between Ms Nygh and Mr Kasey, which took place in Thailand, was valid under Australian law, and whether the marriage had irretrievably broken down. The court was also required to determine if there were any children of the marriage who had not attained the age of 18 years.

The court applied principles of private international law and the provisions of the *Marriage Act 1961* (Cth) and the *Family Law Act 1975* (Cth). It considered the presumption of validity of a marriage duly celebrated, drawing on authorities such as *Axon v Axon* and *In re Taylor, Dec’d*, and the Full Court's decision in *Lester & Lester*. The court found that a ceremony of marriage had occurred and that the parties had cohabited and been regarded as husband and wife, which raised a presumption of validity. Crucially, the court addressed the issue of registration of the marriage in Thailand, considering whether a "conscientious objection" to registration could affect the validity of the marriage under s 88E(1) of the *Marriage Act 1961* (Cth). The court interpreted "conscientious objection" as a belief held on grounds of deeply held principles, distinguishing it from a mere whim or fancy.

The court pronounced a divorce order dissolving the marriage, to be effective in one month. It also declared that there were no children of the marriage who had not attained the age of 18 years. The matter was removed from the pending cases inventory, and orders were made for the return of subpoenaed material.

Orders

Orders of the court

Pursuant to s 88E(1) of the Marriage Act 1961 (Cth), I find that the marriage of Ms Nygh and Mr Kasey of … January 1982 in Thailand is valid and, pursuant to s 113 of the Family Law Act 1975 (Cth), I find the marriage between the parties proved.

I find that the parties are domiciled in Australia and are citizens of Australia.

Pursuant to s 48(2) of the Family Law Act 1975 (Cth), I find the ground of irretrievable breakdown established.

Pursuant to s 55(1)(a) of the Family Law Act 1975 (Cth), I pronounce a divorce order of dissolution of marriage to become effective in one month’s time.

Pursuant to s 55A(1)(a) of the Family Law Act 1975 (Cth), I declare that there are no children of the marriage who have not already attained the age of 18 years.

IT IS ORDERED THAT:

The matter is removed from the pending cases inventory.

All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

Background

Background to the litigation

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Evidence

Evidence Before The Court

A matter not raised by counsel and ultimately, in my opinion, potentially not relevant to the issues requiring my determination was the subject of consideration by the Full Court of the Family Court of Australia in Lester & Lester.[21] That judgment related to a purported marriage of an Australian to a Ghanaian in Ghana. Among the matters considered by the trial judge and subsequently the subject of consideration on appeal was the decision of his Honour Dixon J (as he then was) in Axon v Axon.[22]The presumption in favour of the validity of a marriage duly celebrated casts upon those who deny it the burden of producing reasonable evidence of the fact which renders the marriage void… Furthermore, proof that the parties lived together and were accepted as man and wife raised a presumption that they were validly married (see In re Taylor, Dec’d [23]) which is rebuttable only by clear and cogent evidence, and without suggesting that in a case like this the presumption arising from 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 so. (original emphasis)[21] Lester & Lester [2007] FamCA 186 (Kay, Warnick and May JJ). [22] Axon & Axon (1937) 59 CLR 395, 403-404. [23]In re Taylor, Dec’d (1961) 1 WLR 9. The Full Court in Lester & Lester summarise part of the judgment of the then Chief Justice of the High Court as follows:[24]In our view Taylor (supra) supports a proposition that where parties have lived together for a significantly long period of time and there is evidence of reputation from others in favour of the parties having been married the presumption arises and may be rebutted only with clear evidence showing that the parties had not married.[24] Above n 21, [50]. However, their Honours went on to comment (and respectfully, I agree), in conformity with Axon v Axon, that there had to be a ceremony of marriage. As it transpired, in Lester & Lester, there was significant doubt about whether the ceremony had ever occurred. The application of these principles to this matter would suggest that where there is no doubt that there had been a ceremony of marriage and in this case one which is validly recognised by the Catholic Church,[25] the primary basis for the application of the presumption would apply. In the circumstances before the Full Court in Lester v. Lester, the potentially competing effect of the provisions of the MarriageAct 1961 (Cth) to which I have referred above does not appear to have been considered to have been relevant. Nevertheless, in this matter those provisions are squarely raised and, in my opinion, the terms of the presumption cannot prevail over a clear statutory provision to the contrary.[25] See the certificate from Bishop … to this effect, Affidavit of the applicant, filed 9 February 2010, Annexure ‘F’. Interestingly, perhaps, while ordinarily the onus of proof that the marriage was valid would be on the applicant, the application of the presumption (as set out in Lester v. Lester, Axon v. Axon and In re Taylor, Dec’d) would seem to suggest that having established that a marriage ceremony had taken place and having shown that there was a long period of cohabitation in which the parties were regarded as husband and wife (both of which the applicant in this case has succeeded in establishing) the onus of displacing the validity of the marriage would rest with the respondent.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

However, in this matter the distinguishing fact relates not to the ceremony itself but rather to the question of registration. The Hague Marriage Convention and the subsequent amendments to the Marriage Act 1961 (Cth), in my opinion, were designed to maximise or at least to facilitate the recognition of foreign marriages. This is not a case where because of some mental reservation on the part of one of the parties it is asserted that the ceremony that took place was not intended to bring about a marriage. The only issue really for determination is whether the alleged “conscientious objection” of the applicant to the registration of the marriage in Thailand would support the validity of the marriage, even though it failed in the circumstances to comply with the lex loci celebrationis. So far as I am able to determine this issue has not, in this form, been previously determined. The submissions before me from counsel proceeded on the basis that there was an exception in the “common law rules of private international law” for conscientious objection. Counsel might be excused for accepting the broad statement of his Honour Justice Smith, quoted by the Full Court of this Court in Banh, as implicitly extending the categories of exception under the heading impossibility. For the reasons I have set out above, I do not believe Justice Smith was intending such a broad extension and I am not satisfied that the Full Court of the Family Court in Banh necessarily endorsed the broader proposition. Nevertheless the Full Court in Banh did not comment on or restrict the terms used by Justice Smith and, in my opinion, it is open to this Court and to me at first instance to accept that if the applicant had a conscientious objection to compliance with the formal requirement of registration, then this would not invalidate the marriage for that reason alone. Further, it would also bring the applicant within the exception as outlined in s 88E(1) of the Marriage Act 1961 (Cth) subject to the requirement that the marriage would otherwise be recognised according to the common law rules of private international law. Submissions were directed to what might properly constitute a conscientious objection. Mr Ridge, on behalf of the respondent, asserted, in my opinion correctly, that a conscientious objection was a “linear concept”, with at one end of the line a belief held being fanciful or whimsical and at the other, a belief held of high moral principle. The Macquarie Dictionary (Revised Third Edition) defines “conscientious objector” as follows:one who on the grounds of deeply held beliefs refuses to meet a political or communal obligation, as military service, compulsory voting, the attendance of children at school, etc. It seems clear that there might be a conscientious objection which was based on profound moral conviction. Into this category I would place conscientious objection to being conscripted on the grounds of pacifism. At the other end a mere whim or fancy that something should not occur would, objectively speaking, be ordinarily rejected as being a conscientious objection.