Campani & Suyapto

[2008] FamCA 1121

FAMILY COURT OF AUSTRALIA

CAMPANI & SUYAPTO [2008] FamCA 1121

FAMILY LAW – NULLITY OF MARRIAGE – no real consent to marriage – mistake as to identity of respondent wife at time of purported marriage due to her fraudulent actions – respondent already lawfully married at time of purported marriage – application for nullity not opposed by respondent – decree of nullity pronounced

FAMILY LAW – DECLARATION – Validity of marriage – alternative application

Family Law Act 1975 (Cth) ss 51 & 113
Marriage Act 1961(Cth) s 23B

APPLICANT: Mr Campani

RESPONDENT: Ms Suyapto

FILE NUMBER: ADC 1709 of 2007

DATE DELIVERED: 16 December 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 16 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R.P. Mellows

SOLICITOR FOR THE APPLICANT: Peter Fisher & Associates

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

Orders

1. The marriage solemnised at E in the State of South Australia on … November 2004 between the applicant MR CAMPANI and the respondent formerly known as … now known as MS SUYAPTO but who used the name of KWT incorrectly described in the Marriage Certificate as KNT is declared to be absolutely null and void.

2. The Court dismisses paragraph 2 of the Application for Final Orders filed on the 30 March 2007.

3. All matters removed from the pending cases list.

IT IS NOTED that publication of this judgment under the pseudonym Campani & Suyapto is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1709 of 2007

MR CAMPANI

Applicant

And

MS SUYAPTO

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application by the applicant, Mr Campani, by way of final orders sought, filed on 30 March 2007, in which the applicant seeks orders for declaration that the marriage entered into on … November 2004, between the applicant and the respondent, is null and void, pursuant to section 51 of the Family Law Act, on certain grounds.  There is an alternative application that there be a declaration under section 113 as to the validity of the marriage. 

2. The substantive material before the Court in support of the application is the affidavit of the applicant filed on 30 March 2007.  There is also an affidavit of the applicant filed on 24 November 2008 to which is annexed a letter which is identified by the applicant as being signed by the respondent, acknowledging receipt of appropriate documents and saying, in conclusion:  "I do not oppose orders being made.  I do not intend to attend the hearing."

3. The matter was listed before me today.  The applicant is present.  As a matter of form, the respondent was called and there was no appearance.

4. Having considered the documents on the file and in particular the Convention in relation to service of the documents upon the respondent (who is now resident in Thailand) I am satisfied that she is aware of the application, and that sufficient proof of service is available to enable me to proceed to hear the matter in the absence of the respondent.

5. The main matters to be considered are the provisions of the Marriage Act, and in particular section 23B of the Marriage Act which sets out the grounds on which marriages are void. The grounds specifically relied on by the applicant are under subsection (1)(a):

   “either of the parties is, at the time of the marriage, lawfully married to some other person;”

   and

   “(d)     the consent of either of the parties is not a real consent because:

   (i)       …

   (ii)that party is mistaken as to the identity of the other party”

6. Both of those grounds are relied upon by the applicant.

7. The affidavit filed on 30 March 2007 sets out the history of the relationship of the parties who met in South Australia in 2004 and lived in a de facto relationship for a short time.  They went through a ceremony of marriage on … November 2004.

8. At the time of the ceremony being undertaken the respondent had provided to the applicant a birth certificate in which her name was given as KWT.  A copy of that birth certificate is annexed to the applicant's affidavit setting out the particulars of a person by that name, whose mother was born in Italy and whose father was born in Germany. 

9. Notwithstanding the curious nature of the birth certificate for the respondent, who had been living in Thailand, the applicant accepted the respondent's assurances as to her identity.  He also refers in his affidavit to the respondent producing a health care card and Medicare card in that name.  He says he did not question the truth of this information provided by her. 

10. He further provides the Court with a copy of the original marriage certificate as an annexure to that affidavit, in which the certificate refers to a marriage between the applicant as Mr Campani and the respondent KWT.  The applicant points out that there is an error in the certificate in that the name KNT is not the same name as KWT, which was referred to in the birth certificate of the respondent.

11. It appears from the affidavit of the applicant that he was not aware of the errors, false name and false details of identity provided by the respondent until late May or early June 2005.  The respondent has subsequently been deported from Australia and remains in Thailand.

12. On the basis of the information provided in the affidavit and the annexures to that affidavit, I am satisfied that the applicant has established that, at the time of the marriage, his consent to that marriage was not a real consent because he was mistaken as to the identity of the respondent at that time.  That mistake was brought about by. what can only be described as the fraudulent actions of the respondent.

13. I turn also to consider the other ground, which is that either of the parties was at the time lawfully married to some other person.  Attached to the affidavit of the applicant is the exhibit indicating a divorce of the respondent from Mr PJ, which was a divorce that came into effect on 17 April 2006.  I accept therefore that at the time of the marriage of the parties in 2004 the respondent wife was, at that time, still lawfully married to Mr PJ and that therefore the marriage is also void on the basis that, at that time, the respondent was lawfully married to Mr PJ.

14. The respondent has not sought to oppose the application and indeed consents to the application. Therefore I have no difficulty in finding that appropriate grounds for a decree of nullity have been made out in accordance with the provisions of section 23B of the Marriage Act.

15. I therefore pronounce the decree of nullity.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  23 December 2008