Cao and Song

[2017] FamCA 430

FAMILY COURT OF AUSTRALIA

CAO & SONG [2017] FamCA 430

FAMILY LAW – NULLITY – Application for declaration – Where respondent still married at time of the subject marriage – Declaration made

Marriage Act 1961 (Cth) s 23B(1)

APPLICANT: Ms Cao

RESPONDENT: Mr Song

FILE NUMBER: PAC 1965 of 2017

DATE DELIVERED: 21 June 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 19 June 2017

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT Ms Cao

RESPONDENT No appearance

Orders

1. That it be declared that the marriage between the applicant Ms Cao and the respondent Mr Song conducted at Suburb A, New South Wales on … 2013 is a nullity.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1965 of 2017

Ms Cao

Applicant

And

Mr Song

Respondent

REASONS FOR JUDGMENT 

1. The applicant wife by Application filed 27 April 2017 seeks a declaration that the marriage between her and the respondent husband conducted in 2013 be declared a nullity.

2. By reason of orders dispensing with service of the Application on the Respondent made by a Registrar on 13 June 2017, it is appropriate that the Application proceed to determination on an exparte basis.

3. The application of the wife was listed before the Court on 19 June 2017. 

Background

1. The applicant wife relied upon her primary affidavit filed 27 April 2017 in support of the application.

2. The applicant wife is 35 years of age and the respondent husband 42 years of age.

3. The respondent husband was at all material times an Australian citizen. The parties prior to cohabitation lived and worked in China.

4. A relationship between them commenced in early 2009 and they commenced cohabitation in mid-2010. They took part in “civil partnership ceremony” on board a cruise boat in early 2013 and were advised that the proposal to marry would need to be subject to the requisite notice period and a proper ceremony under the Marriage Act 1961 (Cth).

5. They later married in 2013 at Suburb A in Sydney. The marriage ceremony was performed by a marriage celebrant.

6. The parties separated shortly after and the applicant has not seen the respondent since December 2015 in China. Her last contact with him was by telephone in mid-February 2016.

7. In September 2016 the applicant, concerned about the previous marital status of the respondent attended at the Marriage Registry in China. She was informed that the respondent had been previously married in 2011 to Ms B and that such marriage remained intact at the time she married the respondent: Exh “D” to her affidavit provides formal evidence as to same.

8. The Marriage Certificate as to the marriage between the applicant and respondent reveals that the respondent falsely described his conjugal status at that time as “Never Validly Married”.

Discussion

1. Section 23B(1) of the Marriage Act 1961 (Cth) (“the Marriage Act”) provides that, inter-alia, a marriage is void where “either of the parties is, at the time of the marriage, lawfully married to some other person”.

2. It is clear that at the time the respondent participated in the marriage ceremony with the applicant in 2013 he was lawfully married to another person.

3. The applicant is entitled to the relief that she seeks and a declaration will be made that the marriage between the applicant and the respondent conducted at Suburb A, New South Wales in 2013 is a nullity.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 21 June 2017.

Associate: 

Date:  21 June 2017