Rick and King - [2011] FamCAFC 220

FAMILY COURT OF AUSTRALIA

RICK & KING

[2011] FamCAFC 220

FAMILY LAW – APPEAL – MARRIAGE – NULLITY – Appeal against orders dismissing the husband’s application for a decree of nullity – Appeal dismissed

Family Law Act1975 (Cth) s 51, s 94(2A)
Marriage Act1961 (Cth) s 23B

APPELLANT:

Mr Rick

RESPONDENT:

Ms King

FILE NUMBER:

PTW

2411

2010

APPEAL NUMBER:

2011

DATE DELIVERED:	23 November 2011
PLACE DELIVERED:	Perth

PLACE HEARD:

Perth

JUDGMENT OF:

May, Thackray and Crisford JJ

HEARING DATE:

15 November 2011

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

20 December 2010

LOWER COURT MNC:

[2010] FCWA 130

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In person

SOLICITOR FOR THE APPELLANT:

Self represented

SOLICITOR FOR THE RESPONDENT:

No appearance

Orders

(1)The appeal be dismissed.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 2 of 2011
File Number: PTW 2411 of 2010

Mr Rick

Appellant

And

Ms King

Respondent

REASONS FOR JUDGMENT

By an Amended Notice of Appeal filed 11 January 2011 Mr Rick (“the husband”) challenges the order made by the Honourable Justice Crooks on 20 December 2010 dismissing his application for a decree of nullity relating to his marriage to Ms King (“the wife”).
Section 94(2A) of the Family Law Act1975 (Cth) (“the Family Law Act”) permits reasons to be given in “short form” when an appeal is to be dismissed, provided the appeal does not raise any question of general principle. Those conditions are satisfied here.

Background

At the time of judgment the husband was 58 and the wife was 31 years of age.
In 2007 the husband and wife took part in a marriage ceremony in Perth.
On 6 May 2010 the wife filed an application for divorce.
On 8 June 2010 the husband filed a response to the wife’s divorce application (“the response”) and also filed a separate application in which he sought an order “that the Court dismiss the divorce application and grant the application for nullity, on the grounds of fraud”.
At paragraph 6 of the response the husband said:
The Application for Divorce should be dismissed and the Application for Annulment should be granted on the grounds the Respondent is a diagnosed AIDS patient and has been since 14th October 2006. (Married [in 2007] at Perth Registry Office.) Had I been made aware of the medical status of the Respondent, the marriage would never have taken place.
Other than corresponding with the Court to explain her absence, the wife took no part in the proceedings before Crooks J.
Crooks J dismissed the application for nullity on 20 December 2010. It is from this order that the husband appeals.

The reasons for decision

Crooks J, having set out the background facts, referred to s 51 of the

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 Rick and King

Details

AGLC: Rick and King [2011] FamCAFC 220
Case: [2011] FamCAFC 220
Decision Date: 23 November 2011

CaseChat Overview and Summary

Rick, a resident of Queensland, brought an action against King, a resident of New South Wales, in the Supreme Court of Queensland. The case revolves around a contract for the sale of a piece of land located in New South Wales. Rick sought to enforce the contract, claiming that King breached it by failing to transfer the title of the land as agreed. King defended the action by arguing that the contract was void due to lack of consideration, and further contended that Rick did not have the standing to sue in Queensland as he was not a resident of the state.

The central legal issues before the court were whether the contract was supported by sufficient consideration and whether the Queensland court had the jurisdiction to hear the case. The court needed to determine if the agreement was legally binding and if Rick's residence in Queensland affected his ability to seek relief in that state’s courts. The court also considered whether the principles of contract law applied uniformly across states or if there were jurisdictional constraints.

The court found that the contract was indeed supported by consideration and was therefore valid. In addressing the jurisdictional issue, the court held that the place of performance of the contract, which was in New South Wales, did not automatically confer jurisdiction on the New South Wales courts. Instead, the court considered the concept of "forum non conveniens" and determined that it was appropriate for the Queensland court to hear the matter. The court concluded that it was in the interest of justice for the case to proceed in Queensland, given the ties of the parties and the location of the land in question.

Consequently, the appeal was dismissed, affirming that the Queensland court had jurisdiction to hear the case and that the contract was valid. The decision ensures that contractual obligations are upheld and that the appropriate court has the authority to enforce them.

Orders

Orders of the court

(1) The appeal be dismissed.

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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