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

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

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

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.
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."
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.
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…

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 Campani & Suyapto

Details

AGLC: Campani & Suyapto [2008] FamCA 1121
Case: [2008] FamCA 1121
Decision Date: 16 December 2008

CaseChat Overview and Summary

In the matter of *Campani & Suyapto*, heard before Dawe J, the applicant sought a decree of nullity in respect of a marriage solemnised in South Australia. The dispute arose from the applicant's assertion that he did not give real consent to the marriage due to the respondent's fraudulent actions, which led him to marry a person he mistakenly believed to be someone else. Furthermore, the applicant alleged that the respondent was already lawfully married at the time of the purported marriage. The respondent did not oppose the application for nullity.

The court was required to determine whether the marriage was void ab initio on the grounds of lack of genuine consent due to mistake, or alternatively, on the basis that the respondent was already married. The applicant also sought a declaration regarding the validity of the marriage.

Dawe J reasoned that the applicant's mistaken belief as to the identity of the respondent, induced by her fraudulent conduct, meant that there was no true consent to marry the person he believed he was marrying. This vitiated the consent required for a valid marriage. Additionally, the fact that the respondent was already lawfully married at the time of the ceremony rendered the subsequent purported marriage void. The court applied principles of family law concerning the validity of marriage and the grounds for nullity, particularly where consent is absent or vitiated by fraud or mistake, and where a party lacks the legal capacity to marry due to a pre-existing lawful union.

Consequently, Dawe J pronounced a decree of nullity, declaring the marriage absolutely null and void. The court also dismissed the applicant's alternative application for a declaration regarding the validity of the marriage and removed all related matters from the pending cases list.

Orders

Orders of the court

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.

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

All matters removed from the pending cases list.

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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