Moot 2012

Powers (Petitioner) v Petra (Respondent)

High Court of Terra Nuovo1 Petition No D3-3-8 October 2011

Chaz J:

I must admit that this appeal raises novel issues of law. The facts of the case are rather straightforward.

The respondent, Cleo Petra, is a male to female transsexual, who married Austin Powers, the petitioner in this case, a male, in 2007. The respondent had undergone a gender-reassignment surgery in 1994 in the UK when he was 20 years old and obtained a Gender Recognition Certificate in 2005 from the UK. (See Appendix 1).

Austin Powers, the petitioner, knew of the surgery but married Cleo Petra nevertheless. After experiencing boredom and the wear and tear of marriage, in June 2011 the petitioner embarked on an affair with his secretary, Ms Candy Barr. After a couple of months the petitioner decided to end his marriage. He then filed a petition to nullify his marriage on the basis that Cleo Petra was born a man and that her name was Leo and that therefore it was not a marriage to begin with.

Austin Powers also filed for custody of Bentham Powers, their five year old adopted son.

Terra Nuovo is a Commonwealth country. The population breakdown is as follows: 40% - Muslim. 40% Christian; 10% - Hindu; 7% - Buddhists; 3% - Free thinkers.The laws of Terra Nuovo are the laws of the United Kingdom. The laws of other commonwealth countries are highly persuasive.

{moot 2012}Mariette Peters

Moot 2012

After going through the facts with a fine-tooth comb, and taking into consideration the concerns of all relevant parties, I have now come to a conclusion.

I am, however, going to refrain from examining the reasons for the gender-reassignment surgery. The fact is the respondent had undergone the surgery. It must be noted however that he was born a man and on the authority of Corbett v Corbett[1971] P 83, I have to rule that Cleo Petra remains a man and by virtue of section 69 (d) of the Marriage and Divorce Act 1986 of Terra Nuovo, the marriage is null and void as both the petitioner and respondent are men and there can be no marriage as the union could not be said to have existed in the first place. The marriage is not voidable but is instead null and void.

For ease of reference section 69 of the Marriage and Divorce Act 1986 is produced as follows:

Nullity 69. Grounds on which a marriage is void. A marriage which takes place after the appointed date shall be void if (a) at the time of the marriage either party was already lawfully married and the former husband or wife of such party was living at the time of the marriage and such former marriage was then in force; (b)a male person marries under eighteen years of age or a female person who is above sixteen years but under eighteen years marries without a special licence granted by the Chief Minister under section 10; (c) the parties are within the prohibited degrees of relationship unless the Chief Minister grants a special licence under subsection (6) of section 11; or (d) the parties are not respectively male and female.

{moot 2012}Mariette Peters

Moot 2012

Although a gender recognition certificate was granted to the respondent, that certificate has no legal bearing. Whilst I am aware that several other countries such as Australia and Canada have recognised the post-operative gender of a person concerned, it is the opinion of this court that Corbett v Corbett still reflects the law of the Commonwealth and this may be seen in countries such as Malaysia and Singapore.

On that basis, Cleo Petra is not entitled to the custody of Bentham as granting custody to the respondent would place the child not only in a highly disturbing environment, but an abnormal one as well. That would impact negatively on Bentham Powers and would result in him being a very dysfunctional child. It is the duty of the court, therefore, to prevent that from occurring. The welfare of the child should be of paramount consideration. This is provided in section 88 of the Marriage & Divorce Act 1986 which reads as follows:

PROTECTION OF CHILDREN

88. Power for court to make order for custody. (1) The court may at any time by order place a child in the custody of his or her father or his or her mother or, where there are exceptional circumstances making it undesirable that the child be entrusted to either parent, of any other relative of the child or of any association the objects of which include child welfare or to any other suitable person. (2) In deciding in whose custody a child should be placed the paramount consideration shall be the welfare of the child and subject to this the court shall have regard (a)to the wishes of the parents of the child; and (b)to the wishes of the child, where he or she is of an age to express an independent opinion.

{moot 2012}Mariette Peters

Moot 2012

(3) There shall be a rebuttable presumption that it is for the good of a child below the age of seven years to be with his or her mother but in deciding whether that presumption applies to the facts of any particular case, the court shall have regard to the undesirability of disturbing the life of a child by changes of custody. (4) Where there are two or more children of a marriage, the court shall not be bound to place both or all in custody of the same person but shall consider the welfare of each independently.

Placing Bentham Powers in the custody of Cleo Petra therefore would be going against his welfare.

The petition for nullity is therefore granted with sole custody to the petitioner, Austin Powers.

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{moot 2012}Mariette Peters

Moot 2012

Appendix 1 GENDER RECOGNITION CERTIFICATE

1. Name

CLEO PETRA
2. Date of Birth

10 JUNE 1974
3. Gender

FEMALE
4. Date of Issue

7 JANUARY 2005

The above named person is, from the date of issue, of the gender shown.

CAUTION: THERE ARE OFFENCES RELATING TO MAKING OR USING A FALSE CERTIFICATE. *CROWN COPYRIGHT

WARNING: A CERTIFICATE IS NOT EVIDENCE OF IDENTITY

This certificate is issued in pursuance of the Gender Recognition Act 2004. By section 9 of the Gender Recognition Act, the person to whom this certificate has been issued is for all purposes the gender shown. Valid only if sealed or stamped by an issuing authority under the Gender Recognition Act 2004.

{moot 2012}Mariette Peters

Moot 2012

Cleo Petra now appeals to the Court of Appeal of Terra Nuovo on the following grounds:

a) That the High Court Judge erred in failing to consider the factors that determine the gender of a person.

b) That the High Court judge erred in granting custody to the petitioner on the ground that the respondent was not a suitable parent to ensure the welfare of the child, bearing in mind that the High Court judge erred in ruling that Cleo Petra is male. Alternatively, even if Cleo Petra is declared a male, this has no bearing on the custody of Bentham Powers as there is nothing to show that Cleo Petra is not capable of ensuring the welfare of Bentham Powers.

The appeal, Petra (Appellant) v Powers (Respondent)is now scheduled for hearing at the Court of Appeal of Terra Nuovo, Appeal number A1-4-8.

{moot 2012}Mariette Peters

Moot 2012

Mooting Rules

1. Each mooter will moot for a maximum of 10 minutes.

2. The first counsel for the appellant will have a further 5 minutes for rebuttal. There will be no rebuttal by the respondent.

3. Adherence to time must be observed.

4. There is a difference between the bundle and written submissions (memorial). Written submissions are based on what you have to say during the moot. Bundle of authorities refers to the bundle that comprises your cases and references.

5. There will be no prior exchange of bundles and written submissions between parties. Instead the bundles and written submissions will be exchanged in court. This means that parties must bring along two extra copies of the bundles and written submissions one for the judge and another for the opposing counsel.

6. Mooters are advised to be present half hour before their scheduled time.

7. Mooters must adhere to the dress code.

{moot 2012}Mariette Peters

Moot 2012

Moot assessment

Name

1.

Knowledge of the law (15 marks)

2.

Application of the law to the facts (15 marks)

3.

Delivery of arguments (10 marks)

4.

Bundle of documents (5 marks)

5.

Written submission (5 marks)

{moot 2012}Mariette Peters