The Attorney-General for the Commonwealth & “Kevin and Jennifer” & Human Rights and Equal Opportunity Commission [2003] FamCA 94 (21 February 2003)

[2003] FamCA 94

APPEALS – Marriage – Validity – Appeal against declaration of validity of marriage between a woman and a post-operative female to male transsexual person – s. 113 Family Law Act 1975 – No application that the Full Court receive further evidence upon questions of fact pursuant to s. 93A – Family Law Act 1975 – Appeal dismissed.

CONSTITUTIONAL LAW – Meaning of marriage in the Constitution – Not to be regarded as frozen in time to the definition as it was understood in 1901 – W v T (1998) FLC 92-808, Attorney-General for NSW v Brewery Employees Union of NSW (1908) 6 CLR 469, Attorney-General (Vic) v The Commonwealth (1962) 107 CLR 529, Cormick & Cormick v Salmon (1984) 156 CLR 170, Re: F ex parte F (1986) 161 CLR 376, The Queen v L (1991) 174 CLR 379, Re : Wakim; ex parte McNally (1999) 198 CLR 511, Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130, Senate Hansard, 18 April 1961, ss. 46(1) and 69(2) Marriage Act 1961, ss. 43, 114(2) Family Law Act 1975, considered.

STATUTORY INTERPRETATION – Question of law what criteria should be applied in determining whether a person is a ‘man’ or a ‘woman’ for the purpose of the law of marriage – Marriage Act held not to be a code – Contemporary ordinary every day meaning is to be given to the words ‘man’ and ‘marriage’ for the purpose of the Marriage Act 1961 (Cth) – Meaning of ‘man’ includes a post-operative female to male transsexual – Question of fact whether the criteria are met in a particular case – Trial Judge correct to find on the evidence that the post-operative female to male transsexual person in this case is a ‘man’ for the purpose of the Marriage Act – R v Harris and McGuiness (1988)] 17 NSW LR 158, Secretary, Department of Social Security v SRA (1993) 118 ALR 467 followed; Corbett v Corbett (otherwise Ashley) [1971] P83 and Bellinger v Bellinger [2001] 2 FLR 1048 not followed; In the Marriage of C and D (falsely called C) (1979) FLC 90-636 disapproved; Cozens v Brutus [1973] AC 854, Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, Fitzpatrick v Sterling Housing Association Ltd [2001] AC 27, R v McMinn (1981) 38 ALR 565, Bennion (1997) Statutory Interpretation – A Code (3rd Ed) applied; W v W [2001] 2 WLR 673, Corporate Affairs Commission of NSW v Yuill (1991) 172 CLR 319, Attorney-General v Otahuhu Family Court [1995] 1 NZLR 603, Goodwin v The United Kingdom (European Court of Human Rights Application no. 28957/95; judgment delivered 11 July 2002), I v The United Kingdom (European Court of Human Rights Application no. 25680/94; judgment delivered 11 July 2002), Jones v Dunkel (1959) 101 CLR 298, The Queen v L (1991) 174 CLR 379, ss. 1, 43, 51, 114(2) Family Law Act 1975, ss. 23, 23A, 23B, 42, 66 Marriage Act 1961, ss. 155, 185 Evidence Act 1995(Cth), s. 49 Births, Deaths and Marriages Registration Act 1995 (NSW), s. 1 Nullity of Marriage Act 1971 (UK), s. 11(c) Matrimonial Causes Act 1973 (UK) considered; Maynard v Hill 125 U.S. 190 (1888), Egan v Canada [1995] 2 SCR 513, Layland v Ontario (Consumer and Commercial Relations) and others (1993) 104 DLR (4th) 214, Miron v Trudel [1995] 2 SCR 418, Quilter v Attorney-General [1998] 1 NZLR 523 cited.