| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2022 0120 |
| ODILLA SAMBUCCO (AS A PERSON UNDER A DISABILITY WHO SUES BY HER LITIGATION GUARDIAN LUISA SAMBUCCO) AND OTHERS ACCORDING TO THE SCHEDULE | Applicants |
| v | |
| MARA SAMBUCCO | Respondent |
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| JUDGES: | McLEISH and WALKER JJA and GORTON AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 August 2023 |
| DATE OF JUDGMENT: | 25 August 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 199 |
| JUDGMENT APPEALED FROM: | [2022] VSC 699 (Moore J) |
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STATUTORY INTERPRETATION – Marriage Act 1961 (Cth) s 23B(1)(d)(iii) – Marriage void where consent is not ‘real consent’ because party has not understood nature or effect of ceremony – Whether lack of understanding suffices to void marriage without reference to effect on consent – Lack of understanding as to nature and effect of ceremony will only void marriage if lack of understanding means that person did not really consent to marriage – Appeal dismissed.
PRACTICE AND PROCEDURE – Appeal – Application for leave to raise new ground not raised at trial – Expedience in interests of justice – Exceptional circumstances – Reasons of trial judge unchallenged – Ground relating to confined question of law – Evidence at trial uncontested and ground could not have been met by evidence – No prejudice to respondent except as to costs – No forensic advantage gained by applicants – Effect on third parties – Indemnity costs to alleviate prejudice – Leave granted to raise new ground.
Water Board v Moustakas (1988) 180 CLR 491; Coulton v Holcombe (1986) 162 CLR 1, applied.
WORDS AND PHRASES – ‘real consent’.
Marriage Act 1961 (Cth), ss 5(1), 23B(1)(d), 41, 42(1), 42(5A), 44, 45, 48(2)(a), 50; Wills Act 1997, s 13(1); Civil Law and Justice Legislation Amendment Act 2018 (Cth) s 2, sch 9, item 4.
In the Marriage of S (1980) 42 FLR 94; Moss v Moss [1897] P 263; Fern v Fern [No 2] [2021] FamCA 643; In the Marriage of Osman and Mourrali (1989) 96 FLR 365; Campani v Suyapto [2008] FamCA 1121; Bown v Jalloh [2014] FamCA 785; Official Trustee in Bankruptcy v Edwards (1997) 139 FLR 104; Simpson-Morgan & Burreket [2009] FamCA 138; Breust v Devine [2016] FamCA 892; Babich & Sukhar [2007] FamCA 236, referred to.
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| Counsel | |||
| Applicants: | Ms C Harris SC with Mr J Patela | ||
| Respondent: | Mr R Greenberger | ||
Solicitors | |||
| Applicants: | Hope & Co Lawyers | ||
| Respondent: | Collards | ||
MCLEISH JA
WALKER JA
GORTON AJA:
Background
On 8 June 2019, Marco Sambucco and Mara Batur, whom it is convenient to refer to by their first names, took part in a marriage ceremony according to the Rites of the Baptist Union of Australia. The ceremony was conducted by Reverend David Rock, the lead pastor at the Church by the Bay in Portarlington, which Marco and Mara attended.
Neither Marco, Mara nor Rev Rock believed that this ceremony caused Marco and Mara to become lawfully married. That was because, although Rev Rock was an authorised…
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- AGLC
- Sambucco v Sambucco [2023] VSCA 199
- Case
- [2023] VSCA 199
- Decision Date
CaseChat Overview and Summary
The court found that under section 23B(1)(d)(iii), a marriage would only be void if the lack of understanding led to a lack of real consent. This meant that the understanding of the nature and effect of the ceremony was relevant only insofar as it affected the party's consent. The court reasoned that the statutory language did not support a broader interpretation that would allow voiding a marriage solely based on a lack of understanding, without considering its effect on the consent given. The court also considered the legislative intent behind the provision, which was to ensure that consent was genuine and informed, rather than to void marriages based on a lack of understanding alone.
In light of this interpretation, the court dismissed the appeal brought by the applicants. The applicants had sought leave to raise a new ground of appeal that had not been raised at the trial, but the court found that the new ground did not meet the criteria for leave to appeal. The court determined that the ground was confined to a question of law, the evidence at trial was uncontested, and the ground could not have been met by the evidence. Although the respondents would incur costs as a result, the court concluded that there was no prejudice to the respondents except in terms of costs and no forensic advantage gained by the applicants. Furthermore, the court considered the effect on third parties and decided that indemnity costs would alleviate any prejudice. Thus, the court granted leave to raise the new ground of appeal, but ultimately dismissed the appeal on the merits.
The final orders of the court were that the marriage between the parties remained valid, and the appeal was dismissed. The applicants were ordered to pay the respondents’ costs of the appeal. The court's decision clarified the statutory requirements for voiding a marriage under the Marriage Act and provided a detailed interpretation of the phrase'real consent', which will be of importance in future cases involving similar issues.
Orders
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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
Section 42(1) provides for a notice of intention to marry, in the following terms:Notice to be given and declaration made(1)Subject to this section, a marriage shall not be solemnised unless:(a)notice in writing of the intended marriage has been given in accordance with this section and has been received by the authorised celebrant solemnising the marriage not earlier than 18 months before the date of the marriage and not later than 1 month before the date of the marriage;(b)there has been produced to that authorised celebrant, in respect of each of the parties:(i)an official certificate, or an official extract of an entry in an official register, showing the date and place of birth of the party; or(ii)a statutory declaration … stating, to the best of the declarant’s knowledge and belief and as accurately as the declarant has been able to ascertain, when and where the party was born; or(iii)a passport issued by a government of an overseas country, showing the date and place of birth of the party; or(iv)an Australian passport, showing the date and place of birth of the party; and(c) each of the parties has made and subscribed before that authorised celebrant a declaration, in writing, as to:(i)the partys conjugal status;(ii)the party’s belief that there is no legal impediment to the marriage; and(iii)such other matters as are prescribed. Section 42(5A), which was introduced by the Marriage Amendment Act 1976,[20] provides as follows:An authorised celebrant shall, as soon as practicable after receiving the notice referred to in subsection (1), give to the parties a document outlining the obligations and consequences of marriage and indicating the availability of marriage education and counselling.[20]Section 15(1)(c). We interpolate that no evidence was given as to whether or not Rev Rock gave Marco or Mara a document of the kind described in this provision. Section 44 provides for witnesses to the marriage, as follows:WitnessesA marriage shall not be solemnised unless at least 2 persons who are, or appear to the person solemnising the marriage to be, over the age of 18 years are present as witnesses. Section 45 provides for the form of marriage ceremony. It contains different provisions depending on whether the marriage is solemnised by or in the presence of an authorised celebrant who is, or is not, a minister of religion. Section 45 relevantly provides:Form of ceremony(1)Where a marriage is solemnised by or in the presence of an authorised celebrant, being a minister of religion, it may be solemnised according to any form and ceremony recognised as sufficient for the purpose by the religious body or organisation of which he or she is a minister.(2)Where a marriage is solemnised by or in the presence of an authorised celebrant, not being a minister of religion, it is sufficient if each of the parties says to the other, in the presence of the authorised celebrant and the witnesses, the words:‘I call upon the persons here present to witness that I, AB (or CD), take thee, CD (or AB), to be my lawful wedded wife (or husband, or spouse)’;or words to that effect.(3)Where a marriage has been solemnised by or in the presence of an authorised celebrant, a certificate of the marriage prepared and signed in accordance with section 50 is conclusive evidence that the marriage was solemnised in accordance with this section.…