Vordermaier & Vordermaier - [2007] FamCA 1700

FAMILY COURT OF AUSTRALIA

VORDERMAIER & VORDERMAIER

[2007] FamCA 1700

FAMILY LAW – PRACTICE AND PROCEDURE – VALIDITY OF MARRIAGE – Parties participated in marriage ceremony whilst in refugee camp in Thailand – No marriage certificate – Evidence from wife regarding nature of ceremony – In absence of documentary evidence court may inquire as to whether sufficient other evidence of proof of marriage ceremony – Documentary evidence in form of permission to marry granted by United Nations and travel documents – Parties lived together as husband and wife for nine years – Presumption of validity of marriage in absence of documentation – Husband led no evidence asserting non- existence of marriage and took no part in proceedings – Marriage deemed to be valid and legal

FAMILY LAW – D IVORCE – Parties separated in 1996 – Irretrievable breakdown of marriage – Divorce granted

Family Law Act 1975 (Cth) s 102
Marriage Act 1961 (Cth) ss 88C, 88D & 88G

Rakauskas (1962) VR 372
Jacombe v Jacombe (1961) 105 CLR 355
Sheludko v Sheludko (1972) VR 82
Banh v Banh (1981) FLC 91-010
Kousal v Tack (2003) FLC 93-134

APPLICANT:

Ms Vordermaier

RESPONDENT:

Mr Vordermaier

FILE NUMBER:

ADF

1631

2006

DATE DELIVERED:

27 July 2007

PLACE DELIVERED:

Adelaide

EX TEMPORE REASONS:

Burr J

HEARING DATE:

27 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Horvat

SOLICITOR FOR THE APPLICANT:

Legal Services Commission

COUNSEL FOR THE RESPONDENT:

No appearance by or on behalf of the respondent

SOLICITOR FOR THE RESPONDENT:

Orders

I pronounce and make an Order for divorce.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1631 of 2006

MS VORDERMAIER

Applicant

And

MR VORDERMAIER

Respondent

REASONS FOR JUDGMENT

In terms of the issue of the validity of marriage, one needs to turn to the Marriage Act 1961 as amended, and in particular Part VA thereof. Section 88C sets out the requirements for marriages entered into overseas that must be satisfied in order to attain recognition in Australia. That section essentially deals with circumstances in which there is some document or record. There is only limited documentation here and certainly no marriage certificate.
Sections 88D and 88G also require that there be a document. Section 102 of the Family Law Act provides a similar provision to section 88G of the Marriage Act, in that it also requires some documentary evidence of the marriage. The parties in these proceedings do not have a marriage certificate, but they do have a form of document indicating that they underwent a ceremony of marriage in the refugee camp in Thailand. It is annexure A to the wife's affidavit, filed 23 January 2007.
In her affidavit, the wife describes the circumstances of the ceremony that she and her husband underwent. She indicated what would constitute a traditional marriage ceremony if carried out in Laos and then indicated…

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.

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Details

AGLC: Vordermaier & Vordermaier [2007] FamCA 1700
Case: [2007] FamCA 1700
Decision Date: 27 July 2007

CaseChat Overview and Summary

The parties, Mr and Mrs Vordermaier, sought a divorce. The central dispute concerned the validity of their marriage, which was solemnised in a refugee camp in Thailand without a marriage certificate. The wife provided evidence of the ceremony, supported by documentary evidence including permission to marry from the United Nations and travel documents. The parties had cohabited as husband and wife for nine years. The husband did not participate in the proceedings and presented no evidence to dispute the existence of the marriage. The court was required to determine whether, in the absence of documentary proof of the marriage ceremony, sufficient other evidence existed to establish its validity.

The court considered the presumption of validity that applies to marriages in the absence of documentation. It found that the wife's evidence, coupled with the United Nations permission to marry and travel documents, constituted sufficient proof of the marriage ceremony. The court noted that the husband had not led any evidence to assert the non-existence of the marriage and had taken no part in the proceedings.

The court concluded that the marriage was valid and legal. Consequently, an order for divorce was pronounced and made, reflecting the irretrievable breakdown of the marriage which occurred in 1996.

Orders

Orders of the court

I pronounce and make an Order for divorce.

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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