Belluomo & Akabane
[2024] FedCFamC1F 677
•8 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Belluomo & Akabane [2024] FedCFamC1F 677
File number(s): SYC 6715 of 2024 Judgment of: ALTOBELLI J Date of judgment: 8 October 2024 Catchwords: FAMILY LAW – NULLITY – Where the parties solemnised their marriage in Sydney – Where the parties believed that they were both unmarried at the time of solemnisation – Where the respondent had not validly terminated her marriage to a previous spouse – Where the applicant terminated the relationship with the respondent as a result of her non-disclosure – Decree of nullity ordered. Legislation: Family Law Act1975 (Cth) s 51
Marriage Act1961 (Cth) s 23B
Cases cited: Pennington & Mosely [2023] FedCFamC1F 632 Division: Division 1 First Instance Number of paragraphs: 11 Date of hearing: 8 October 2024 Place: Sydney via videoconference The Applicant: Litigant in person The Respondent: Litigant in person ORDERS
SYC 6715 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BELLUOMO
Applicant
AND: MS AKABANE
Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
8 OCTOBER 2024
THE COURT ORDERS THAT:
1.The marriage between the Applicant husband and the Respondent wife solemnized in 2021 is declared null and void pursuant to s 51 of the Family Law Act 1975 (Cth) and s 23B(1)(a) of the Marriage Act 1961 (Cth).
2.All outstanding applications otherwise are dismissed and the matter removed from the list of cases awaiting finalisation.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Belluomo & Akabane has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
By way of an application for nullity filed on 28 August 2024, Mr Belluomo (“the applicant”), seeks orders of nullity relating to his purported marriage to Ms Akabane (“the respondent”). The purported marriage was solemnised in 2021. As it turns out, the applicant contends and the respondent agrees, that the respondent was already married on that date.
EVIDENCE
Sworn material
The application for nullity is supported by an affidavit of the applicant filed on 28 August 2024. He deposes that he discovered the previous marriage on 1 August 2022, which was the date of his separation from the respondent. By way of a communication from the Department of Home Affairs, being a letter of that date, which I will make Exhibit A1, he discovered that the respondent was already married.
He deposes that he was unaware of this, and indeed, that the respondent had indicated to him that she too, was unaware that the man who she was previously married to had not, in fact, terminated the previous marriage. He deposes to the fact that on the date of the letter, the relationship with Ms Akabane ended. As I've indicated, the letter from the Department of Home Affairs is Exhibit A1, and the document which purports to be a marriage certificate of the ceremony that took place in early 2021 will become Exhibit A2.
The respondent, who as I've indicated does not oppose the making of the order, also filed an affidavit on 28 August 2024. She deposes that she supports the application for nullity. She agrees that she was previously married at the time of the marriage to the applicant but was under the impression that her previous marriage had been legally dissolved.
Oral evidence
Both the applicant and respondent appeared before me. The applicant was sworn in under oath, whilst the respondent gave an affirmation. Both confirmed that the contents of their respective affidavits were true and correct. I asked a number of questions of each of them.
For present purposes, the respondent indicated that she had been previously married to a gentleman by the name of Mr B. That marriage had occurred in Sydney in about 2016, and the relationship had only lasted a year, or in fact, less. She told me that he, that is, Mr B, had told her that he was, “sorting it all out”, and that there was no need for her to do anything on her end. Accordingly, she felt that she was free to marry the applicant. That is the evidence before the Court.
THE APPLICABLE LAW
An application of this sort is governed by two relevant provisions. Firstly, s 51 of the Family Law Act1975 (Cth) (“the Act”) explains that nullity is based on the ground that the marriage is void. Section 51 of the Act relevantly provides:
An application under this Act for a decree of nullity of marriage shall be based on the ground that the marriage is void.
Section 23B of the Marriage Act 1961 (Cth) (“the Marriage Act”) sets out the relevant grounds of voidness of marriage:
Grounds on which marriages are void
(1)A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:
(a)either of the parties is, at the time of the marriage, lawfully married to some other person;
(b)the parties are within a prohibited relationship;
(c) by reason of section 48 the marriage is not a valid marriage;
(d) the consent of either of the parties is not a real consent because:
(i) it was obtained by duress or fraud;
(ii)that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
(iii)that party did not understand the nature and effect of the marriage ceremony; or
(e) either of the parties is not of marriageable age;
and not otherwise.
(2) Marriages of parties within a prohibited relationship are marriages:
(a) between a person and an ancestor or descendant of the person; or
(b) between 2 siblings (whether of the whole blood or the half-blood).
(3)Any relationship specified in subsection (2) includes a relationship traced through, or to, a person who is or was an adopted child, and, for that purpose, the relationship between an adopted child and the adoptive parent, or each of the adoptive parents, of the child shall be deemed to be or to have been the natural relationship of child and parent.
(4)Nothing in subsection (3) makes it lawful for a person to marry a person whom the first-mentioned person could not lawfully have married if that subsection had not been enacted.
(5)For the purposes of this section:
(a)a person who has at any time been adopted by another person shall be deemed to remain the adopted child of that other person notwithstanding that any order by which the adoption was effected has been annulled, cancelled or discharged or that the adoption has for any other reason ceased to be effective; and
(b)a person who has been adopted on more than one occasion shall be deemed to be the adopted child of each person by whom the first-mentioned person has been adopted.
(6) For the purposes of this section:
"adopted", in relation to a child, means adopted under the law of any place (whether in or out of Australia) relating to the adoption of children.
"ancestor", in relation to a person, means any person from whom the first-mentioned person is descended including a parent of the first-mentioned person.
For present purposes, the relevant ground is s 23B(1)(a) which talks about there being a marriage to another person at the time.
In an earlier decision of mine, Pennington & Mosely [2023] FedCFamC1F 632, I discussed the significance of the words in s 23B of the Marriage Act, “to some other person”, and satisfied myself, for the reasons set out therein, that this means in effect to each other.
I find that at the time the applicant in this case married the respondent, the respondent was already married, thus satisfying me that the grounds set out in s 23B(1)(a) are satisfied and accordingly a decree of nullity should be made.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 11 October 2024
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