What happened

Mrs Mears filed an application on 28 April 2011 seeking leave to appeal out of time against a Family Court order made by Coleman J on 29 August 2006. That earlier order declared that the parties' marriage celebrated at Rockhampton in October 1970 "was and remains a valid marriage" under the Marriage Act 1961 (see [1], [13]). The wife now wishes to have that declaration set aside so that the parties can "legally marry" again; she says the earlier order does not accord with her conscience and with religious guidance (see [2], [3]).

Key facts are: the 1970 ceremony had around 100 guests; the witnesses were the wife's 16‑year‑old bridesmaid and the husband's 18‑year‑old best man (see [4]–[5]). The wife admits she knew one witness was under 18 and also admits she was untruthful when completing the marriage certificate (see [7], [4]). In 2000 the Queensland registry advised her that the apparent oversight about the age of a witness did not affect legality (see [11]). In 2006 both parties jointly applied to the Family Court for a declaration that the marriage was valid and obtained the declaration sought (see [12]–[13]). Some years later, the wife changed position and sought leave to appeal out of time (see [1], [18]).

May J heard the application for leave to appeal out of time. Applying the principles in Gallo v Dawson about extensions of time, the judge considered delay, explanation, prejudice, prospects of success and the history and conduct of the parties (see [16]–[17], [18]–[24]). Although the judge described the utility of the appeal as marginal, he identified a real issue for determination, whether the marriage was valid given the witness age issue under s 44 of the Marriage Act, and granted leave, because both parties now asked the Family Court to decide the matter and there was no prejudice given the husband's support (see [31]–[35]). The orders granted required filing of a notice of appeal and further affidavits within 28 days and attendance for directions (orders).

Why the court decided this way

The decision turned on the well-established discretionary framework for extending time to appeal: the Court must assess whether strict compliance with time limits would work an injustice to the applicant and, when exercising the discretion, consider the history of the proceedings, the conduct of the parties, the nature of the litigation, the consequences of granting or refusing the extension, and the prospects of success (applying Gallo v Dawson) (see [16]–[17]). May J applied that structure.

Key reasons that tipped the balance were:

The respondent (the husband) supported the wife's application, thus eliminating any meaningful prejudice from permitting the appeal to proceed (see [21]–[22]).
There was an arguable legal question central to the marriage's validity: s 44 of the Marriage Act requires at least two persons who are, or appear to the celebrant to be, over 18 to be present as witnesses. Here, one witness was actually 16 and the wife admits she knew this (see [29]–[31]). That raised a real issue to be ventilated.
The practical consequences of leaving the declaration in place are significant: s 113 of the Marriage Act precludes a subsequent marriage if the first is valid, which is the precise practical objection motivating the wife's application (see [25]).
Although the order appealed from was the order originally sought by both parties in 2006, the parties now ask the Court to decide the question; where the substantive question has real legal substance, it is appropriate to allow appeal even if the delay is long, provided no injustice to others will follow (see [15], [31]–[35]).

Thus, balancing the Gallo factors, May J concluded that, despite only "marginal utility" in the appeal, the presence of a genuine doubt on a fundamental legal question and the absence of prejudice justified granting leave to appeal out of time (see [34]–[35]).

Before and after state of the law

Before this decision, the applicable law was the High Court authority in Gallo v Dawson, which sets out the general principles for extensions of time: the grant is discretionary and aimed at preventing injustice; the court must consider history, conduct, nature, consequences and prospects (see [16]). The statutory rules in the Marriage Act relevant to the validity of a marriage, particularly s 41, s 44 and s 45, already articulated the essential features of a valid marriage and the witness requirement (see [28]–[29]).

This judgment does not alter the principles in Gallo, nor does it reinterpret s 44. What it demonstrates is the Family Court's application of Gallo in a factual context where the party seeking leave is the original applicant for the declaration and the respondent supports the application to extend time. The practical state after the decision is that, in similar circumstances where a real legal question exists about the validity of a marriage and there is no prejudice, the Court will be receptive to granting extensions of time even after significant delay to enable a proper legal determination (see [31]–[35]). The case stands as an example of exercises of discretion where the goal is to allow a substantive determination on a question of legal validity.

Key passages with plain-English translation

"The grant of an extension of time is not automatic." (para 16)
- Plain English: The Court will not always allow late appeals; the applicant must show why the rules should not stop them.
Summary of Gallo principles (para 16)
- Plain English: To allow a late appeal the Court asks whether sticking to the time rules would be unfair. It looks at the whole case history, what the parties did, what the case is about, what happens if the Court says yes or no, and how likely the appeal is to succeed.
Quotation of s 44 (para 29)
- Plain English: A marriage can only be conducted if two people who look to the celebrant to be over 18 are there as witnesses. If witnesses are too young or do not appear old enough, that can raise legal problems.
"It seems to me that the only remedy is an appeal." (para 24)
- Plain English: If the wife wants the court's earlier decision about the marriage undone, the proper way to get that is by appealing, not by other means.
"In the circumstances of this case I am of the view that there is marginal utility in such an appeal." (para 34)
- Plain English: The judge honestly thought the chance the appeal would change the outcome was small, but still enough reason to let the appeal proceed to get the legal question fully decided.

What fact patterns trigger this precedent

This decision will be most relevant where:

A late application for leave to appeal challenges a Family Court order that declared a marriage valid, particularly when the applicant seeks to enable a new marriage (see [3], [25]).
There is a plausible statutory issue going to the fundamental validity of the ceremony, for example compliance with s 44 (age/appearance of witnesses), s 41 (requirements for consent and ceremony) or s 45 (authorised celebrant), creating a real question of law (see [28]–[31]).
The respondent does not oppose the late application, or no third party is prejudiced by the delay (see [21]–[22]).
The parties originally sought one outcome but later change position and ask the Court to decide the legal consequence of the original state of affairs (see [12], [14]–[15]).

Where those factors align, this decision indicates the Court will be willing to grant leave to appeal out of time to determine the substantive legal issue.

How later courts have treated it

The judgment itself does not record subsequent treatment by later courts. The reasoning closely follows Gallo v Dawson and simply applies that established framework to its facts (see [16]). As such, its value is predominantly as an example of applying the Gallo criteria in a family and marriage law context where both parties seek a substantive pronouncement and there is no identifiable prejudice. To determine how later courts have treated Mears & Mears would require searching subsequent decisions in databases for citations to [2011] FamCAFC 121; the present judgment does not supply post‑decision treatment or follow‑on authorities.

Still-open questions

Several issues remain unresolved or only partially addressed by this decision:

The substantive legal question of whether the 1970 marriage was invalid because one witness was actually 16 was not decided on this application; the Court granted leave to appeal so that question can be argued and determined. The ultimate interpretation of s 44 in the particular circumstances of that ceremony remains open (see [31]–[33]).
The decision observes that the celebrant's perception matters (s 44 refers to persons who are, 'or appear to the person solemnising the marriage to be, over the age of 18') but does not resolve how appearance-based assessments operate when it is known to a party that a witness is underage. In this case the wife admitted she knew the bridesmaid was under 18; whether that admission undermines the 'appearance' element at trial remains to be resolved on appeal (see [29]–[31]).
The judgment touches on tension between civil validity and religious conscience: the wife's desire for a religiously and civilly valid ceremony led her to seek vacation of the prior declaration. How courts balance private religious motivations against established declarations of legal status is a factual and legal area that will be tested on the appeal.
The role of earlier official statements (the Registry's 2000 letter saying the oversight did not affect legality) and their evidential weight in assessing prospects of success and prejudice was noted but not determinative. How such administrative advice affects later litigation strategy and the Court's assessment of prospects remains an open practical question (see [11], [19]–[21]).
Finally, a procedural question: this decision affirms that even where the original trial order was the one the parties sought, a later change of mind (supported by the other party) can justify an extension of time. The limits of that principle, for example where third parties or public interest are engaged, are not explored here and remain open for future cases (see [15], [21]–[22]).

Conclusion: May J granted leave to appeal out of time to allow a full hearing of a real legal question about marriage validity raised by the witness‑age issue, applying the conventional Gallo framework. The substantive question of validity awaits determination on appeal; practitioners should note the Court's readiness to permit late appeals where no prejudice exists and the legal issue is material and arguable.

Judgment (35 paragraphs)

[1]

Mears & Mears [2011] FamCAFC 121; (23 May 2011)

[2]

[2011] FamCAFC 121

[3]

FAMILY LAW - APPEAL - Application to extend time to appeal - Where the wife seeks to appeal against an order deeming her marriage valid almost five years out of time- Where the order appealed against was the order initially sought - Where there is some doubt as to the validity of the marriage as a witness to the marriage was under the age of eighteen - Where the husband supports the wife's application - Where there is no prejudice - Application allowed.

[4]

Family Law Act 1975 (Cth)

[5]

Marriage Act 1961 (Cth) s 41; s 44; s 45; 113

[6]

Attorney General (Cth) and Kevin [2003] FamCA 94; (2003) FLC 93-127

[7]

Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479

[8]

Lockhart & Lockhart [2006] FamCA 445; (2006) FLC 93-292

[9]

(1) The application for leave to appeal out of time is granted.

(2) That the notice of appeal and any further affidavits that the wife wishes to rely on be filed within 28 days.

(3) That the parties attend upon the Appeals Registrar for further directions.

[10]

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

[11]

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

[12]

An application in an appeal was filed by the wife on 28 April 2011 seeking an extension of time to appeal the order of Coleman J made 29 August 2006, that is an order made nearly five years ago. The order is:

[13]

IT IS DECLARED THAT the marriage of [Mr Mears] and [Mrs Mears] celebrated at Rockhampton in Australia [in] October 1970 was and remains a valid marriage in accordance with the provisions of the Commonwealth Marriage Act 1961.

[14]

In the affidavit filed in support of the application for leave to appeal out of time the wife explains:

[15]

I am appealing the decision of Justice Coleman as I know in my heart that this decision was not right according to what my conscience is telling me and the guidance I have received from God.

[16]

Should leave be granted the wife seeks that the marriage be declared invalid, so that the parties can "legally marry". The wife also wishes to not have the "illegitimacy [of the marriage] hanging over [her] family any longer". If leave is not granted the wife will be unable to appeal and the declaration of validity of marriage will remain in place.

[17]

The parties were married in October 1970 in Rockhampton. There were apparently some 100 guests at the wedding.
The witnesses to the marriage were the wife's sixteen year old bridesmaid and the husband's eighteen year old best man.
The wife is concerned that the parties' marriage is not legitimate due to the failure to adhere to the requirements as prescribed in s 44 of the Marriage Act 1961 (Cth) relating to the witnessing of a marriage.
The wife states that she ignored the instructions from the minister about having two witnesses over 18 years of age sign the Certificate of Marriage. In fact, the wife acknowledges that she was untruthful because she knew her bridesmaid was under 18 years of age.
It is said that the minister communicated to the parties that they would not be married if this requirement was not met and suggested the wife's father sign the certificate of marriage as a witness. The wife did not want her father to sign the document and "went ahead rebelliously without heeding his warning".
This decision, the wife explains, has caused her "much sorrow and regret" as she knows that the parties "are not really married".
The wife has made several previous attempts to establish the validity of her marriage.
On 17 July 2000 the wife received a letter from the Registry of Births, Deaths and Marriages Queensland, responding to an enquiry made by the wife. That letter said:

[18]

... We thank you for your letter forwarded to us by the District Registrar of Rockhampton with regard to your marriage in 1970.

[19]

Please be advised that the slight oversight with regard to the age of one of your witnesses in no way affects the legality of your marriage. You were validly married by an authorised celebrant, who conducted a valid religious wedding ceremony, and therefore you marriage is perfectly valid in the eyes of the law. ...

[20]

The background to the hearing before Coleman J is that on 23 August 2006 both parties filed an application for final orders in the Family Court of Australia. Both the wife and the husband sought the following order:

[21]

That the Court declares that the marriage of [Mrs Mears] and [Mr Mears] at Rockhampton on ... October 1970 is valid.

[22]

As mentioned the parties were successful in their application and the trial judge declared that "the marriage of [Mr Mears] and [Mrs Mears] celebrated at Rockhampton in Australia [in] October 1970 was and remains a valid marriage in accordance with the provisions of the Commonwealth Marriage Act 1961". Apart from the order, the wife did not provide the court for the purposes of this application with reasons of Coleman J or a transcript.
Although it was the order sought by the parties, the wife now wishes to appeal the decision but needs leave to file the appeal. It is not really said by the wife that the order made by the judge was wrong, it is rather that it was not supported by her or her husband at the time and they should have asked for a different order, that is, that the marriage was not valid, allowing them to remarry.
This is a most unusual case, in the sense that usually leave is only granted to appeal where it can be demonstrated that there was some error made by the trial judge. In this case it is difficult to imagine the error, bearing in mind that the order made was as asked by the parties and may be correct.

[23]

The principles emerging from Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 may be summarised as follows:
- The grant of an extension of time is not automatic.
- The object is to ensure that Rules which fix times do not become instruments of injustice.
- Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
- When determining whether the Rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.
- When considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.
It is the last of those matters which is of some concern.

[24]

The order the wife seeks to appeal were delivered, as said previously, on 29 August 2006. It is now 23 May 2011, almost 5 years later.
In her affidavit the wife states "I know this has been going on for too long and we really must have closure and put this behind us so we can get on with the rest of our lives ... but I have to follow what I believe God is telling me to do morally".
The wife then explains that she now realises that she "should have pushed things more back there with the solicitor before going before the Judge as [she] did believe [she] was hearing from God, but it has been more and more as time has gone on".
It must be observed that the delay in this case is not a significant consideration because the husband supports the application.

[25]

The only other possible party to the proceedings is the husband and he supports the wife's application.
In her affidavit the wife expresses her dissatisfaction with the legal representative who acted for the parties in the proceedings before the trial judge. She asks now to be given the opportunity to "be a voice for [herself] this time".
In essence, the wife explained to me in her oral submissions, that the orders made by the trial judge were not those that she really wanted. Rather she would like to go through another ceremony of marriage, which would be valid both in a civil and a religious sense. In other words, the wife is really asking that the order made by the trial judge be set aside.
It seems to me that the only remedy is an appeal.

[26]

As I have mentioned the wife and I gather her husband are really asking to remarry. As the marriage has been declared valid s 113 of the Marriage Act 1961 (Cth) prevents a second marriage ceremony.
The historical and social notion of the term "marriage" was extensively discussed by the Full Court in Attorney General (Cth) and Kevin [2003] FamCA 94; (2003) FLC 93-127.
It is of some interest to recall that s 43(1)(a) of the Family Law Act 1975 (Cth) states:

[27]

(1) The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to:

[28]

(a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;

[29]

The legal requirements for a valid marriage are provided in s 41, 44 and 45 of the Marriage Act 1961 (Cth). As Carmody J in Lockhart & Lockhart [2006] FamCA 445; (2006) FLC 93-292 correctly summarised, this requires:

[30]

Participation in some form of official wedding ceremony performed by an authorised celebrant involving a consensual and mutual exchange of vows or commitments of lifetime fidelity and conjugal support in front of witnesses is essential for a valid marriage. The only legitimate way of dissolving a formal marriage is by decree.

[31]

The section of the Marriage Act 1961 (Cth) which concerns witnesses to the marriage is s 44. This section provides:

[32]

A 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. (emphasis added)

[33]

It could be said that the responsibility for the witnesses was that of the priest, not the wife. However, the wife knew that one of the witnesses was under eighteen years. There was no element of mistake in this matter.
Without considering the merits of the appeal anymore than is necessary to grant an application such as this, the following matters are taken into account. First, the orders made by the trial judge were those as asked for by the applicants. Secondly, most likely the orders were correct on the material before the judge.
However, it is now apparent that there may have been a fundamental difficulty about the validly of the marriage, in particular, whether it should have been solemnised by the priest.
Should the wife be given leave it would be necessary for her to file an affidavit explaining the circumstances of the marriage and the question of the witness.

[34]

In the circumstances of this case I am of the view that there is marginal utility in such an appeal. The only argument appears to be that there is some doubt about whether the marriage of Mr and Mrs Mears is a legal marriage, as they did have one witness under the age of eighteen.
As both the wife and the husband ask that the Family Court of Australia decide this matter leave should be given.

[35]

I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 23 May 2011.

Gallo v Dawson

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