Melhem v Garbett SM [1997] FCA 1613

IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No.NG 610 of 1997 GENERAL DIVISION )

Between: THERESE MELHEM Applicant

And: JAMES GARRETT SM

FEDERAL COURT Respondent OF AUSTRALIA 21 JAN 2003 LIBRARY REASONS FOR JUDGMENT EINFELD J SYDNEY 18 AUGUST 1997

Introduction

Therese Melhem, who lives in Beirut, Lebanon, first applies for permission to file out of time an application for an order of review of a decision of the respondent magistrate given in the Waverley Local Court on 8 May 1997 refusing her permission to marry below the marriageable age as prescribed by the Marriage Act 1961 (the Act). She is now 174% years old and is 7 months pregnant with her fiance's child. I give leave for the motion to be returned and heard immediately. I am informed that service has been effected on the magistrate for whom there is no

appearance today.

Section 11 of the Act provides that a person is of marriageable age upon obtaining the age of 18 years. Section 12(1) provides

that if a person has attained the age of 16 years but not 18

years he or she may apply to a Judge or a magistrate in a State or Territory for an order authorising the marriage despite not being of marriageable age. Subsection (2) provides that the Judge or magistrate shall thereupon hold an inquiry, which is referred to in section 18(2) as a private inquiry, meaning that it is apparently not open to the public. If satisfied upon inquiry that the applicant is 16 years old and the circumstances

of the case are

so exceptional and unusual as to justify the making of the order

the Judge or magistrate may make the order sought but otherwise

shall refuse the application.

The respondent magistrate decided that the circumstances

do appear to be exceptional and unusual

but that they were not so exceptional and unusual as to justify