BURDELL & BURDELL
[2011] FamCA 667
•14 June 2011
FAMILY COURT OF AUSTRALIA
| BURDELL & BURDELL | [2011] FamCA 667 |
| FAMILY LAW – MARRIAGE – Marriage void – Decree of nullity granted |
| Family Law Rules 2004, Rule 15.11(b) |
| Teves v Campomayor (1995) FLC 92-578 |
| APPLICANT: | Mr Burdell |
| RESPONDENT: | Ms Burdell |
| FILE NUMBER: | BRC | 991 | of | 2009 |
| DATE DELIVERED: | 14 June & 18 July 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | O’Reilly J |
| HEARING DATE: | 18 July 2011 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Ms Stidworthy |
| THE RESPONDENT: | No appearance |
Orders
IT IS DECLARED
The marriage between Mr Burdell and Ms Burdell which took place on … 1995 is void.
AND IT IS ORDERED
A decree of nullity in relation to that marriage is granted.
IT IS NOTED that publication of this judgment under the pseudonym Burdell & Burdell has been approved by the Chieh Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 991 of 2009
| Mr Burdell |
Applicant
And
| Ms Burdell |
Respondent
REASONS FOR JUDGMENT
This is an application by Mr Burdell for a decree of nullity of the marriage between himself and the respondent Ms Burdell which took place on 23 September 1995 in Country B.
The respondent was served with the application on 2 March 2011: folio 6.
The matter was listed for hearing on 14 June 2011.
On that date I had a reservation as to the admissibility of the applicant’s affidavit sworn in Country E, sworn or affirmed before Mr D, a legal professional. Rule 15.11(b) of the Family Law Rules 2004 provides that a person may make an affidavit outside Australia in accordance with the law of the place where the person makes the affidavit. On 14 June 2011 I stood the matter over until 20 June 2011 to enable the solicitor for the applicant to obtain evidence to demonstrate that such accords with the law of Thailand as to the swearing or affirmation of affidavits and requested the applicant’s solicitor to provide an affidavit by a legal practitioner in Country E to that effect.
The applicant’s solicitor to date has been unable to provide such an affidavit.
However, on my reviewing the papers, I am prepared to act on an original certificate attached to the applicant’s affidavit in relation to Mr D’s qualifications and the following in that certificate, namely, that he:
…has been registered as a [legal professional] qualified to certify signatures and documents.
The applicant’s substantive case can be shortly put. On 23 September 1995 when he and the respondent married he had believed that an earlier marriage between himself and Ms C had been dissolved. Subsequently, upon filing an application for divorce from the respondent he discovered that the marriage with Ms C had not been dissolved until 7 March 1996. Based on this evidence the case clearly is one for the grant of a decree of nullity. The matter is not discretionary when the facts establish that a marriage is invalid: Teves v Campomayor (1995) FLC 92-578 at 81,740.
I will add that in the applicant’s affidavit there appears to be a date error in par 29 as to the date of separation between the applicant and Ms Steltman. However, nothing turns on that. The important evidence is the date of dissolution of their marriage which, as I have said, was not achieved until 7 March 1996.
In consequence, it is declared that the marriage between Mr Burdell and Ms Burdell which took place in 1995 is void. Accordingly a decree of nullity is granted.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 18 July 2011.
Associate:
Date: 5 August 2011
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