AZMI & SHINDE - [2014] FamCA 824

FAMILY COURT OF AUSTRALIA

AZMI & SHINDE

[2014] FamCA 824

FAMILY LAW – NULLITY – where the applicant seeks a decree of nullity – where the respondent does not participate in the proceedings – where the applicant bears the onus to establish relevant grounds – where the applicant alleges duress and fraud – where the applicant alleges she did not understand the nature of the ceremony – where there are inconsistencies in the evidence given by the applicant – where no decree of nullity is made.

Family Law Act 1975 (Cth) s 51
Marriage Act 1961 (Cth) s 23B

Allesch & Maunz (2000) 203 CLR 172
Cooper (falsely called Crane) v Crane [1891] P 369
Hosking & Hosking (1995) FLC 92-579
In the Marriage of S (1980) FLC 19-820
In the Marriage of Teves & Campomayor (1995) FLC 92-578
Kennedy & Smith [2003] FamCA 136
Scott (falsely called Sebright) v Sebright (1886) 12 PD 21

APPLICANT:

Ms Azmi

RESPONDENT:

Mr Shinde

FILE NUMBER:

BRC

7697

2013

DATE DELIVERED:

12 September 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

12 September 2014

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

No appearance

Orders

The Application for Nullity filed by the Applicant on 10 September 2013 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Azmi & Shinde 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: BRC 7697 of 2013

Ms Azmi

Applicant

And

Mr Shinde

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

On 10 September 2013, the Applicant filed an Application seeking a decree of nullity in relation to marriage solemnised in Brisbane on … January 2009. There is no appearance by the Respondent. He has filed no material in response to the Application. Following attempts at service, Registrar Stoneham made an Order on 14 April 2014 which provided that, by way of substituted service, the Applicant serve documents on the Respondent by emailing them or having them emailed to his last known email address.
The material makes it apparent that this Order was made in the context of the Applicant deposing to her belief that the Respondent had been removed from the Commonwealth of Australia by officials of the Department of Immigration, as a consequence of a failure to comply with visa requirements. The contents of an affidavit filed by a process server also further indicated that the Respondent had returned to live outside of Australia.
The Applicant filed an affidavit of service on 29 July 2014. It contains evidence to the effect that the relevant documents were forwarded to the last known email address of the Respondent.
On the evidence before me, I accept that the Applicant has complied with the terms of the Order made by Registrar Stoneham on 14 April 2014.
It is clear that all that authority requires is for a party to be afforded adequate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AZMI & SHINDE

Details

AGLC: AZMI & SHINDE [2014] FamCA 824
Case: [2014] FamCA 824
Decision Date: 12 September 2014

CaseChat Overview and Summary

In *AZMI & SHINDE*, the applicant sought a decree of nullity of marriage from Hogan J of the Family Court of Australia. The respondent did not participate in the proceedings. The applicant bore the onus of establishing the grounds for nullity.

The central legal issues before the court were whether the applicant had established grounds for nullity of the marriage, specifically alleging duress and fraud, and that she did not understand the nature of the ceremony.

Hogan J found inconsistencies in the applicant's evidence. The court applied the principles that the onus rests on the applicant to prove the grounds for nullity, and that the applicant must satisfy the court on the balance of probabilities. Given the evidentiary deficiencies, the court was not satisfied that the grounds for nullity had been established.

Consequently, Hogan J dismissed the application for nullity.

Orders

Orders of the court

The Application for Nullity filed by the Applicant on 10 September 2013 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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