Breust and Devine

[2016] FamCA 892

FAMILY COURT OF AUSTRALIA

BREUST & DEVINE [2016] FamCA 892

FAMILY LAW – Nullity – undefended application for decree of nullity of marriage on the ground that marriage is void – where applicant was mistaken as to the nature of the ceremony – where applicant believed she was participating in a “promise night” and relationship registration– where applicant lacked English proficiency and the relevant documents and statements of the marriage celebrant were not interpreted for her – marriage is void – application granted.

Family Law Act 1975 (Cth), s 51
Marriage Act 1961 (Cth), s 23B(1)(d)(ii)

Rabab & Rashad [2009] FamCA 69
APPLICANT:	Mr Breust

RESPONDENT:  Ms Devine

FILE NUMBER: MLC 4168 of 2016

DATE DELIVERED: 24 October 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 7 September 2016

REPRESENTATION

SOLICITOR ADVOCATE FOR THE APPLICANT: Mr Zora

SOLICITOR FOR THE APPLICANT: Atlas Legal

THE RESPONDENT: No appearance

Orders

1. The applicant be granted leave to proceed on an undefended basis.

2. Pursuant to section 51 of the Family Law Act 1975 (Cth), I pronounce a decree of nullity of the marriage solemnized on … 2015 at Suburb A in the State of Victoria between the applicant referred to in the marriage certificate as MR BREUST and the respondent referred to in the marriage certificate as MS DEVINE on the ground that the marriage is void because the consent of the applicant was not a real consent because she was mistaken as to the nature of the ceremony performed.

3. All extant applications be otherwise dismissed.

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

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FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4168 of 2016

Mr Breust
Applicant

And

Ms Devine

Respondent

REASONS FOR JUDGMENT

1. The applicant seeks a decree of nullity of marriage on the ground that the marriage between herself and the respondent is void because she was mistaken as to the nature of the ceremony in which she engaged and was not aware at the time of the marriage that she was marrying the respondent.

Application to proceed on an undefended basis

1. The respondent did not appear at the hearing and has not filed any material in response to the application.  The applicant sought to proceed with her application on an undefended basis.  The applicant filed an Affidavit of Service on 5 July 2016 indicating that the respondent had been handed to him by way of service the Initiating Application, the applicant’s affidavit sworn 3 May 2016, a copy of the marriage certificate and a court brochure.  The respondent received these documents personally when he attended upon the office of the applicant’s solicitor to collect them and, according to the Affidavit of Service, was not comfortable providing his current residential address for service.

2. When this matter was first listed before the Court on 8 July 2016, the…