Vordermaier & Vordermaier
[2007] FamCA 1700
•27 July 2007
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 Rakauskas (1962) VR 372 |
| APPLICANT: | Ms Vordermaier |
| RESPONDENT: | Mr Vordermaier |
| FILE NUMBER: | ADF | 1631 | of | 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 what did actually happen in the … Refugee Camp in Thailand when they wished to be married to each other.
Her evidence today was that they underwent a ceremony with one of the elders in the refugee camp. Their wrists were bound together by cotton and in all respects they understood that they were undertaking a form of marriage to each other. She indicated in her affidavit, and indeed confirmed today, that the parties had not resided together as husband and wife prior to the ceremony, but did so afterwards.
They received permission from the United Nations to be married and the one and only document that is available to the applicant is, as I said, Annexure A. A number of matters needed to be complied with before United Nations approval could be given and, importantly, that included the authorisation of the head of the Laos community. That was given.
Further confirmation of the recognition of their status as a married couple is found in Annexure B to that affidavit, which is a document for travel to Australia. In that document the applicant is described as "now married" and there is a photograph of the husband in these proceedings on that document.
In my view though there is further support in a number of authorities, which indicate that in the absence of appropriate documentary evidence the Court may well inquire as to whether there is sufficient other evidence of proof that a marriage ceremony occurred. In the decision of Rakauskas (1962) VR, the Victorian Supreme Court considered the operation of Section 100 of the Matrimonial Causes Act 1959 which has terms very similar to Section 102 of the Family Law Act. In that case, Barry J stated (at page 373):
“The purpose of the section is auxiliary, and it does not say in terms, and I do not think that it is intended to say, that a marriage may be proved only by production of an official document recording the fact and circumstances of marriage. The existence of a marriage may be established by the testimony of the petitioner of the celebration of a marriage ceremony, where there is confirmatory evidence that the parties lived together and were reputed to be and were accepted in society as a married couple…”
That particular case referred to a marriage ceremony alleged by the parties to have occurred in Lithuania in 1936 and in relation to the particular circumstances of that case, Barry J said (at page 373):-
“Here I have no doubt that the parties are validly married, and this requirement surely does not vary according to the nature of the proceedings. Here I have no doubt that the petitioner is telling the truth. From other cases I am aware of the difficulties in obtaining official records from eastern European counties, and having regard to the events that have happened since 1936, it is not surprising that the petitioner has not been able to procure a certified record of the marriage.
The circumstances of these parties in this matter are somewhat similar in terms of modern history, in that both were refugees from Laos in 1986 and both met in the refugee camp in Thailand. In the circumstances that clearly existed at that time, it is not surprising that there was no capacity to formally record marriage ceremonies or that any formal documentation establishing proof of the marriage exists. Here the parties lived together as husband and wife for some nine years between 1987 and their separation in 1996.
I am satisfied from the material before me that they presented themselves throughout their cohabitation to the outside world as husband and wife, and on that basis I am satisfied that a valid marriage existed and does exist between the parties.
It is also possible to look for support in my finding that there is a valid marriage when reviewing the authorities on presumption of validity of marriage in the absence of documentation. What those authorities clearly indicate is that when this presumption arises, the onus of proof then falls on the person asserting the non‑existence of the marriage to lead evidence supporting that fact. There has been no such evidence led to the Court. Clearly the husband would have been the one who would be in the best position to lead such evidence. He has chosen not to do so despite the fact that he is fully aware of these proceedings, having been served with the Application for Divorce as is evidenced by the affidavit of Ms M filed on 14 August 2006 and the Acknowledgment of Service which is dated 31 July 2006 and filed 11 August 2006. If he had been of the view that there was no valid marriage, he was in a position to come to Court and tell us. There is no appearance by him today and it would appear clear from the Court file that he has chosen not to take any part in the proceedings.
In terms of the authorities in relation to the presumption of validity of marriage, in my view, it is only necessary to quote the decision of Dixon CJ, Fullagar and Menzies JJ in Jacombe v Jacombe (1961) 105 CLR 355 (at page 360):-
“…(P)roof that the parties lived together and were accepted as man and wife raised a presumption that they were validly married…which is rebuttable only by clear and cogent evidence, and…it is another element to be taken into account in considering whether or not the circumstances as a whole [suffice to prove the marriage]”.
It is though perhaps of benefit to quote from the Victorian Supreme Court case of Sheludko v Sheludko (1972) VR 82. In that case the parties were allegedly married in Poland in 1943. Subsequently the parties moved to Australia and resided in Victoria, for the next 19 years, when according to the wife, she left the matrimonial home. In this particular case, as is the case here, no formal documentary proof of marriage was produced.
In considering whether a presumption of validity of marriage existed in that case, Crockett J confirmed the relevant facts of the case and said (at page 83):-
“It is thus apparent that the two parties have lived together for almost 19 years. Throughout that period, it is clear that they gained a reputation in the eyes of the community in which they were from time to time living of being married persons.”
His Honour further stated, at pages 84 and 85:-
“The petitioner does not, it appears to me, have to rely merely on the question of who is to be believed between her and the respondent by recourse either to credibility or probabilities in relation to the question of whether there was a marriage. Even if…I were left by the evidence in a state of indecision as to whether she went through a form of marriage ceremony, the lengthy period of cohabitation during which the parties lived and were known as man and wife entitles the petitioner, in my view, in law to rely upon a presumption that they are husband and wife. That is, that a valid marriage was contracted.”
The approach of the Victorian Supreme Court in Sheludko was endorsed by the Full Court of the Family Court in Banh v Banh (1981) FLC 91-010 and, at page 76,127, Watson, Emery SJJ and Treyvaud J said:-
“While conceding that the trial Judge was entitled on the evidence before him to find that some ceremony between the parties had in fact taken place, the appellant’s counsel submitted that there must be expert evidence proving the validity of the marriage. That submission is clearly wrong: see Sheludko v Sheludko (1972) V.R. 82. The appellant’s counsel’s alternative submission was that proof of the validity of the marriage must be established by acceptable evidence, based on knowledge. The trial judge had the evidence of the wife, which he accepted, and which was based on knowledge. He had further the evidence of Leona Richardson. In our view, his Honour was entitled to find that the evidence established that the ceremony which did take place was in conformity with local law and tradition.”
As recently as 2003, the Full Court of the Family Court considered this question in the matter of Kousal v Tack (2003) FLC 93134. Kay J with whom Nicholson CJ and Monteith J agreed, at page 78,257 said this:
“40. The issue to be determined was clearly identified. Had these parties conducted themselves as man and wife following on their partaking in a marriage ceremony, whether the marriage ceremony was valid or otherwise.”
In all the circumstances I am satisfied that the parties underwent a ceremony which, in their difficult circumstances at the time, ought to be considered a marriage ceremony, and for all the reasons indicated by me above, I deem the marriage to have been a valid and legal marriage.
I now turn to the Application for Divorce. I am, as I indicated, satisfied that the parties were married and that they are domiciled and resident in Australia. I am satisfied that service has been effected as is evidenced by the affidavit of Ms M, filed on 14 August 2006, and acknowledgment of service which is dated and filed 11 August 2006. I am satisfied that the parties separated in 1996 and there is thereby an irretrievable breakdown of marriage. I am satisfied that there is one child of the marriage, N, who was born in December 1993. I declare that I am satisfied that proper arrangements have been made for her care, welfare and development.
I grant the Application for Divorce.
I certify that the preceding nineteen (19) paragraphs are a true copy of the Ex tempore Reasons for Judgment of the Honourable Justice Burr
Associate
Date: 27 July 2007
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