Wold and Kleppir (No. 2)

[2009] FamCA 188

FAMILY COURT OF AUSTRALIA

WOLD & KLEPPIR (NO. 2) [2009] FamCA 188

FAMILY LAW – COSTS – Indemnity costs sought – Circumstances justifying order – Persistence in denial of validity of marriage in the face of overwhelming evidence to the contrary – Who bears the onus of proof – Costs ordered – Reserve decision on indemnity issue

APPLICANT: Ms Wold

RESPONDENT: Mr Kleppir

FILE NUMBER: BRC 3211 of 2008

DATE DELIVERED: 17 February 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 22 – 23 January 2009 and
6 February 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Potts, Solicitor of Neumann & Turnour, Solicitors appeared for the Applicant Wife

SOLICITOR FOR THE RESPONDENT: Mr Madsen, Solicitor of  Madsen Law, Solicitors, appeared for the Respondent Husband

Orders

IT IS ORDERED THAT:

Costs Issue

1. The Mother’s application for costs is acceded to with the issue of whether the ordered costs be indemnity costs reserved to the trial of this matter commencing 10.00 am on 25 March 2009.

Further Directions for Trial 25 and 26 March 2009

1. All parties’ legal representatives to file and serve any additional affidavit material to be relied on at trial by 4.00 pm on 27 February 2009.

2. Any subpoenae to be issued by no later than 4.00 pm on 27 February 2009 and to be returnable by 4.00 pm 13 March 2009.

3. Any objections to evidence to be delivered by 4.00 pm on 13 March 2009.

4. Any response to objections to evidence to be delivered by 4.00 pm on 20 March 2009.

5. All parties’ legal representatives to indicate by 4.00 pm on 28 February 2009 which witnesses are required for cross examination at trial, which witnesses are not required for cross examination and which witnesses it is agreed may give their evidence by electronic communication.

6. All parties’ legal representatives to file lists of documents to be relied on at trial by no later than 4.00 pm on 13 March 2009.

7. Leave given to all parties’ legal representatives to inspect all subpoenaed material by 4.00 pm on 20 March 2009.

8. Leave given for updating family reports to be attended to.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC3211 of 2008

MS WOLD

Applicant

And

MR KLEPPIR

Respondent

REASONS FOR JUDGMENT

1. The brief history of this matter is that on 10 April 2008 Ms Wold (“the wife”) filed an application seeking orders in relation to the two children of the relationship and, in addition, orders by way of settlement of property.  In the following month, Mr Kleppir (“the husband”) filed a response document setting out the orders that he sought in relation to the two children and he sought a declaration from the Court that the parties are not, and never have been married.  Thereafter, that issue fell for determination as a preliminary issue.

2. The matter came before the Court in July last year when I indicated I would take evidence from the marriage celebrant who had signed a document which appeared at face value to be some sort of certificate of marriage issued by him.  In a somewhat naïve approach I was of the view if he was a registered marriage celebrant, having heard his evidence, that would be the end of the matter.  It was not and the matter then proceeded over a further two days on 22 and 23 January.  On 6 February, for reasons I gave at the time, I made a declaration that the parties were validly married.

3. There were two reasons advanced by the respondent husband as to why he says the parties were not validly married.  One is he said if the Imam performed a valid ceremony of marriage he was totally mistaken as to the nature of the ceremony.  He thought it was a conversion ceremony to Islam.  I found that that proposition by the respondent husband was facile, fatuous and totally unbelievable.

4. The second argument was that it was a potentially polygamous marriage and therefore could never be a valid marriage.  Again, for reasons given at the time I overruled that proposition.

5. The applicant wife now seeks her costs on an indemnity basis.  I have perused the submissions of the applicant and the submissions for the respondent which have been filed in this matter pursuant to directions I gave.  I have also on today's date perused costs submissions in reply filed on behalf of the applicant wife.

6. At paragraph 15 of submissions for the applicant wife it says:

   "The respondent has persisted in his denial of a valid marriage between the parties in the face of overwhelming evidence to the contrary."

   I accept that that is a perfectly valid submission to make.  This was not a case where, at the end of the day, there was any doubt.  There was the wife, there were relatives, there was the certificate, there was the evidence of the Imam and many of the propositions advanced by the applicant and/or the applicant's witnesses were not even challenged by way of cross-examination.

   RECORDED  :  NOT TRANSCRIBED

7. In the costs submissions of the applicant at paragraph 23 it is submitted:

   "Excluding the delivery of judgment on 6 February the validity of marriage issue has taken three days of Court time - 16 July, 22 and 23 January."

   I accept it was not a full day on 16 July, but there was certainly a significant amount of Court time taken up on that date.

8. By the respondent's submissions at paragraph 3.4 it is asserted:

   "This was never an application by the respondent for an order for nullity of marriage and the applicant bore the onus of proof."

   I do not know that that is an entirely valid submission because clearly in the respondent's documentation when he first filed he sought a declaration of no marriage.  I appreciate he was not seeking a decree of nullity of marriage, he was saying the parties are not and have not been married.  Therefore, there was no jurisdiction in relation to the property settlement issues.

9. Again, it is not an accurate submission to suggest the applicant bore the onus of proof.  The applicant bore the onus of establishing that a valid ceremony, had been performed.  So far as the issue of mistake as to the nature of the ceremony was concerned clearly the respondent carried that onus.

10. In paragraph 4.3(b) - I note that the numbering goes (a), (b), (b), but I assume it should be (c) - it is submitted that it was at all times open to the applicant to apply in a State Court under Pt 19 of the Property Law Act and thereby avoid the issue of the validity of marriage entirely. 

11. I reject that submission.  Why should she have to go to the State Court and treat herself as an unmarried woman when she says she was married, the Imam says she was married, the Court now says she was married.  The only one who persisted with the claim she was not married seemingly was the respondent.  There was no obligation on her to file in a State Court.  Having filed in this jurisdiction it was either a win or lose situation, there was no room for compromise, to be half married.

12. At paragraph 4.4 of the reply document it is submitted:

    "There is nothing improper or unusual about running an alternative defence on a discrete issue such as this and it did not significantly add to the time the trial took or to its complexity."

    Again, I reject that submission.  We have not even started the property settlement trial, we have not started the trial on children's issues and the matter has taken a considerable number of Court mention dates and two and a half days of Court hearing with numerous submissions and numerous affidavits filed.

13. So far as the alternative defence argument is concerned the respondent's position vacillated between it was not a ceremony of marriage and the Imam was mistaken in his evidence that he performed a ceremony of marriage on that date.  Well, it is a big call to argue that a marriage celebrant did not know what he was doing at the relevant time.  But then in the alternative to say, “If he did perform the ceremony of marriage I didn't realise that that was what it was."  Assuming that the alternative defence passes muster it's still a matter of returning to the basic overwhelming factor under s 117(2) and that is that the respondent has persisted in his denial of a valid marriage in the face of overwhelming evidence to the contrary.

14. In 4.7(b) of the respondent's submissions it is asserted it was the parties' own choice to go through this particular ceremony or, put another way, to not go through a proper marriage ceremony.  It was this decision which threw up a novel legal question which needed to be resolved by judicial determination.  Again, I do not accept that it is a novel legal question.  Once the evidence was laid out, once accepted, there was a written document produced, it had, as I found, the handwriting of the respondent on it, the document referred to a certificate of marriage and such like signed by witnesses and signed by the Imam.  One would ordinarily have thought that was the end of the matter.  The fact that the Imam may have committed offences under the Marriage Act by not complying strictly with the terms and obligations cast on marriage celebrants is beside the point.  It is not an obligation or a duty that is cast on the parties themselves.

15. In the reply document, I note it is submitted the applicant wife was never under a duty to comply with the Marriage Act or the marriage regulations.  I accept that.  In paragraph 7 replying to paragraph 4.2 with reference to the financial situation of the parties the submission is made the position of the respondent husband was implausible and improbable from its genesis and I accept the force of that submission.

16. At this point in time I have not had an opportunity to peruse the costs agreement entered into by the applicant with her legal representatives.  I can indicate that this is a matter where I propose to order costs.  The only matter that I will reserve on - and I will reserve this to 25 March 2009 - is the issue of whether it should be indemnity costs.  A decision will be given at that time.

17. Now, I move to the issue of directions.  Directions have previously been made.

    RECORDED  :  NOT TRANSCRIBED

18. If I make an order - this matter is down for 25 March, as I have said, which is a Wednesday - any additional affidavits to be filed and served by Friday, 27 February.  Any subpoenas to be issued to be filed no later than 27 February, returnable by Friday, 13 March.  Any objections to evidence to be delivered by Friday, 13 March.  Any response to the objections to evidence to be delivered by Friday, 20 March.

19. The parties are to indicate by 28 February which witnesses are required for cross-examination, which witnesses are not required for cross-examination, which witnesses it is agreed may give their evidence by electronic medium.

20. The parties are to file lists of documents indicating the material they intend to rely on no later than Friday, 13 March.

21. Leave given to inspect subpoenaed material no later than Friday, 20 March.

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  17 February 2009