Oltman and Harper (No 2) - [2009] FamCA 1360

FAMILY COURT OF AUSTRALIA

OLTMAN & HARPER (NO. 2)

[2009] FamCA 1360

FAMILY LAW – MARRIAGE – Declaration of validity of marriage – Religious ceremony performed by Sheikh (Celebrant) not authorised under Australian law – Islamic ceremony of marriage – Husband arranged ceremony with no involvement of wife – Sheikh’s first Australian marriage – No compliance with forms and requirements of the wedding ceremony – Intent of the parties – Children and cohabitation born during relationship – Reputation and community acceptance as a family – Presumption of marriage

Family Law Act 1975 (Cth) ss 4, 79, 113
Marriage Act 1961 (Cth) ss 41, 42, 44, 45, 46, 48, 50

Jacombe and Jacombe (1961) 105 CLR 355
Kousal and Tack [2002] FamCA 1152
Lengyel and Rasad (1990) FLC 92-154
Lester and Lester [2007] FamCA 186
Re Taylor (deceased); Taylor v Taylor and Another [1961] 1 All ER 55
Sheludko v Sheludko [1972] VR 82
W and T [1998] FamCA 49
Wold and Kleppir [2009] FamCA 178

APPLICANT:

MR OLTMAN

RESPONDENT:

MS HARPER

FILE NUMBER:

MLC

9619

2008

DATE DELIVERED:

3 SEPTEMBER 2009

PLACE DELIVERED:

MELBOURNE

PLACE HEARD:

MELBOURNE

JUDGMENT OF:

YOUNG J

HEARING DATE:

24 JULY 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

MR KHAN

SOLICITOR FOR THE APPLICANT:

STARNET LEGAL PTY LTD

COUNSEL FOR THE RESPONDENT:

MR LETHLEAN

SOLICITOR FOR THE RESPONDENT:

WOMEN'S LEGAL SERVICE VICTORIA

Orders

Pursuant to s. 113 of the Family Law Act 1975 (Cth) IT IS DECLARED that the marriage entered into between Ms Harper and Mr Oltman in March 2000 is legally valid.
THAT the initiating application of the husband filed 13 March 2009 and paragraph 1 of the wife’s response filed 28 April 2009 be dismissed.
THAT the issue of the payment and quantum of any costs be reserved for argument before the Trial Judge.

IT IS NOTED that publication of this judgment under the pseudonym Oltman & Harper is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9619 of 2008

MR OLTMAN

Applicant

And

MS HARPER

Respondent

REASONS FOR JUDGMENT

I am asked by the applicant husband pursuant to s. 113 of the Family Law Act 1975 (Cth) (“the Act”) to declare that no valid marriage exists between he and his wife. I have identified the parties, for the purposes of this Judgment, as husband and wife because the husband’s position is that they were married religiously under Islamic law whereas the wife’s position is that they were married under Islamic religious law which was also a civil ceremony within the requirements of the Marriage Act 1961 (Cth) (“Marriage Act”).
The husband’s initiating application in this Court was filed 13 March 2009. At the time that application was issued the husband was respondent to a property application pursuant to s. 79 of the Act which was then before the Federal Magistrates Court. That matter had been adjourned during a Financial Conciliation Conference before a Registrar, and effectively stayed,…

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 Oltman and Harper (No 2)

Details

AGLC: Oltman and Harper (No 2) [2009] FamCA 1360
Case: [2009] FamCA 1360
Decision Date: 3 SEPTEMBER 2009

CaseChat Overview and Summary

In *Oltman and Harper (No 2)*, Young J of the Family Court of Australia considered a dispute concerning the validity of a marriage between Ms Harper and Mr Oltman. The husband had filed an initiating application on 13 March 2009, and the wife had responded on 28 April 2009.

The primary legal issue before the court was whether the marriage entered into by the parties in March 2000 was legally valid. This question arose in the context of proceedings initiated by the husband.

Young J declared that the marriage between Ms Harper and Mr Oltman was legally valid, pursuant to section 113 of the *Family Law Act 1975* (Cth). Consequently, the court dismissed both the husband's initiating application and the wife's response. The court also reserved the issue of costs for argument before the Trial Judge.

Orders

Orders of the court

Pursuant to s. 113 of the Family Law Act 1975 (Cth) IT IS DECLARED that the marriage entered into between Ms Harper and Mr Oltman in March 2000 is legally valid.

THAT the initiating application of the husband filed 13 March 2009 and paragraph 1 of the wife’s response filed 28 April 2009 be dismissed.

THAT the issue of the payment and quantum of any costs be reserved for argument before the Trial Judge.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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