NIEN & VO

[2015] FamCA 142

FAMILY COURT OF AUSTRALIA

NIEN & VO [2015] FamCA 142

FAMILY LAW – MARRIAGE – declaration of invalidity – breach of s113 of the Marriage Act 1961.

Marriage Act 1961 s113

APPLICANT: Mr Nien

RESPONDENT: Ms Vo

FILE NUMBER: PAC 3974 of 2011

DATE DELIVERED: 2 March 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 2 March 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: T Lawyers Pty Ltd

SOLICITOR FOR THE RESPONDENT: Selective Law

Orders

IT IS DECLARED THAT

1. The marriage between the parties solemnised in Suburb B, Sydney on … 1993 is not a valid marriage because it contravenes s 113 (1)(a) of the Marriage Act 1961.

THE COURT FINDS THAT

1. The marriage between the parties solemnised in Country D on 7 March 1992 is proved.

2. The parties were at all material times domiciled in Australia.

3. The ground for the application for a divorce order – namely that the marriage has broken down irretrievably – is proved. 

THE COURT, BY ORDER, DECLARES THAT IT IS SATISFIED

1. The only child of the marriage, as that expression is defined in s 55A(3), who has not attained the age of eighteen years is the child B, born … 2003, and that proper arrangements in all the circumstances have been made for the care, welfare and development of the child.

THE COURT ORDERS THAT

1. A divorce order be made, such divorce order to take effect and thereby terminate the marriage on the … 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nien & Vo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: PAC 3974 of 2011

Mr Nien

Applicant

And

Ms Vo

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. When reading the material in preparation for this hearing, I thought that it may not be appropriate to make an order declaring the marriage, entered into in 1993 in Australia, a nullity because:

   a)section 23B of the Marriage Act1961 provides the only grounds on which a marriage may be considered void; and

   b)section 51 of the Family Law Act1975 provides that the only ground for nullity is that a marriage is void. 

2. It seems to me that the combination of these sections means that a declaration as to nullity is not the appropriate order. 

3. It seems to be an accepted fact that the marriage solemnised in Australia between the parties in 1993 was contrary to the terms of section 113(1)(a) of the Marriage Act 1961 - because the parties were already legally married by virtue of a marriage solemnised in Country D in 1992. Jurisdiction exists.[1] 

   [1]pursuant to section 31(1)(a) of the Family Law Act with respect to matters under the Act in respect of which matrimonial causes are instituted; “matrimonial causes” in section 4 of the Family Law Act including proceedings between parties for a declaration as to the validity of a marriage or a divorce or the annulment of a marriage.

4. It seems to me that the appropriate declaration is one by which the Court declares that the marriage entered into between the parties in Australia on 7 August 1993 is not valid because it contravened the terms of section 113(1)(a) of the Marriage Act 1961. 

5. Each of the parties also has before the Court an application for divorce.  It appeared from reading the contents of the divorce application and the response to the divorce application that the parties have made appropriate arrangements in relation to their child, who, it seems, lives with the mother and spends time with the father for a very limited period of time per year.  Child support, it seems, is paid.

6. There are grounds upon which the court could be persuaded of those matters required under section 48 and 55 and 55A of the Family Law Act1975, namely:

   a)that the marriage between the parties has broken down irretrievably; and

   b)that the Court is satisfied that there is no reasonable likelihood of cohabitation being resumed; and

   c)that the children of the marriage, who have not attained 18 years of age, are children specified in the application and response documents; and

   d)given the parties’ agreement, proper arrangements in all the circumstances have been made for the care, welfare and development of those children.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 2 March 2015.

Associate:

Date:  10 March 2015