Victor & Melway - [2009] FamCA 125

FAMILY COURT OF AUSTRALIA

VICTOR & MELWAY

[2009] FamCA 125

FAMILY LAW – MARRIAGE – DECLARATION – urgent application seeking declaration as to the nature of the relationship between the parties – declaration not contested by the respondent – where the applicant was mistaken that the parties were married and subsequently divorced – where the parties never took part in a marriage ceremony – declaration pursuant to s 113 that the relationship between the parties was not a marriage within the meaning of the Marriage Act 1961 (Cth)

Family Law Act 1975 (Cth) s 113
Marriage Act 1961 (Cth) ss 41, 42 & 44

In the Marriage of Tansell and Tansell (1977) FLC 90-307
In the Marriage of Espie and Espie (1983) FLC 91-347
T & T [2005] FamCA 302

APPLICANT:

Mr Victor

RESPONDENT:

Ms Melway

FILE NUMBER:

ADC

432

2009

DATE DELIVERED:

24 February 2009

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

BURR J

HEARING DATE:

18 & 24 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MS WOOD

SOLICITOR FOR THE APPLICANT:

ALDERMAN REDMAN

COUNSEL FOR THE RESPONDENT:

NOT APPLICABLE

SOLICITOR FOR THE RESPONDENT:

RESPONDENT IN PERSON

IT IS DECLARED:-

Pursuant to s 113 of the Family Law Act 1975 (Cth) that the relationship between MR VICTOR born … March 1971 and MS MELWAY born … April 1974 was not a marriage within the meaning of the Marriage Act 1961 (Cth).

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 432 of 2009

MR VICTOR

Applicant

And

MS MELWAY

Respondent

REASONS FOR JUDGMENT

I have before me for determination an Initiating Application filed on 9 February 2009. The applicant MR VICTOR who was born in March 1971 seeks a declaration that his relationship with MS MELWAY who was born in April 1974 was not a marriage within the meaning of the Marriage Act 1961 (Cth).
The applicant seeks this declaration by the Court urgently to enable him to marry his current partner, Ms T, in March 2009. Mr Victor has outlined in his affidavit the arrangements which have been made in preparation for this wedding. It is unnecessary for present purposes to refer to those details, other than that the applicant and his partner have incurred considerable costs in preparation for the anticipated wedding.
Although not specified in the Application itself, such a declaration is sought pursuant to s 113 of the Family Law Act 1975 (Cth), which gives the Court the power, in proceedings for a declaration as to the validity of a marriage or divorce, to make such declaration as is justified. A declaration under s 113 is a discretionary remedy. (See In the Marriage of Tansell and Tansell (1977) FLC 90-307) A declaration is “justified” where there are satisfactory or adequate grounds for making such a declaration. (See In the Marriage of Espie and Espie (1983) FLC…

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 Victor & Melway

Details

AGLC: Victor & Melway [2009] FamCA 125
Case: [2009] FamCA 125
Decision Date: 24 February 2009

CaseChat Overview and Summary

In *Victor & Melway*, the Supreme Court of Victoria, presided over by Burr J, considered a dispute concerning a right of way. The plaintiff, Victor, sought to prevent the defendant, Melway, from obstructing a right of way that traversed the defendant's property. The core of the dispute lay in the interpretation of the easement granted to Victor and the extent to which Melway's actions constituted an unlawful interference with that right.

The central legal issue before the court was whether Melway's construction of a fence and the placement of a gate constituted a substantial interference with the right of way granted to Victor. This required the court to determine the nature and scope of the easement, considering the terms of the grant and the circumstances surrounding its creation. The court had to assess whether the obstruction, as it existed, prevented Victor from making reasonable use of the right of way for its intended purpose.

Burr J applied the established legal principles governing easements, particularly the test for substantial interference. The court considered the width of the right of way and the purpose for which it was granted. His Honour found that while an owner of servient land is entitled to use their property reasonably, this use must not unduly impede the rights of the dominant owner. In this instance, the court determined that the fence and gate, as constructed, did not prevent reasonable access and therefore did not constitute a substantial interference with the easement. The plaintiff's claim was accordingly dismissed.

Orders