Ceballos and Ceballos

[2013] FamCA 879

FAMILY COURT OF AUSTRALIA

CEBALLOS & CEBALLOS [2013] FamCA 879

FAMILY LAW – NULLITY – Applicant for declaration still married at time of subject marriage – declaration made – question as to whether papers should be referred to the Commonwealth Attorney General reserved for further submissions.

Marriage Act 1961 (Cth) ss 23B(1), 94

APPLICANT: Mr Ceballos

RESPONDENT: Ms Ceballos

FILE NUMBER: PAC 1946 of 2013

DATE DELIVERED: 12 November 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 11 November 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Michael Vassili Lawyers

Orders

1. A declaration be made that the marriage between the applicant and the respondent conducted at Sydney Suburb B New South Wales on … March 2000 is a nullity.

2. That within 21 days from the date of these orders the applicant file such further affidavit evidence upon which he would seek to rely as to the question of whether these proceedings should be referred to the Commonwealth Attorney General.

3. That proceedings be adjourned for further hearing to 9:30am on 4 December 2013.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1946 of 2013

Mr Ceballos

Applicant

And

Ms Ceballos

Respondent

REASONS FOR JUDGMENT

The Proceedings  

1. The applicant husband in the present proceedings seeks a declaration that the marriage between himself and the respondent wife conducted in March 2000 be declared a nullity.

Background

1. The applicant is presently aged 44 years of age. The respondent wife is presently aged 42 years of age. The applicant and respondent commenced cohabitation on … March 2000 that being the day on which they were purportedly married.

2. There are two children of the applicant and respondent. They are presently aged 12 and 9.

3. In February 1994 the applicant husband married Ms C and they separated in about 1997.

4. In about 1999 the applicant contacted his then wife and informed her that he was getting married and enquired as to whether she had made an application for divorce. She responded that she was dealing with the divorce application and the filing fees at that time and it would be all over and done very soon.

5. Subsequent to that conversation the husband had no communication with his first wife for several years. In March 2000 the applicant married the present respondent in a ceremony at Sydney Suburb B, New South Wales.

6. The marriage certificate for this marriage is in evidence as annexure B to the affidavit of the applicant sworn on 29 April 2013. Surprisingly the marriage certificate evidences the conjugal status of the applicant at the time of this marriage as “never validly married”. That assertion by the applicant in the registration particulars of this marriage was clearly false.

7. The applicant and respondent cohabited until their final separation on 27 January 2010. Subsequent to that separation the applicant sought to file an application for divorce only to find that his marriage to his first wife Ms C remained intact at the time of his marriage to the present respondent.

8. The applicant and respondent entered into final property orders on 3 April 2013 and orders by consent were made on that date in the Federal Magistrates Court (as it then was).

9. The application for divorce by his former wife was not heard until December 2002 and the divorce order took effect in January 2003 as evidenced by the Divorce Order attached to the applicant’s affidavit.

Discussion

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

2. It is clear that at the time the applicant participated in the marriage ceremony with the respondent at Sydney Suburb B in March 2000 he was validly married to another woman.

3. The applicant is entitled to the relief that he seeks and a declaration will be made that the marriage between the applicant and the respondent conducted at Sydney Suburb B New South Wales in March 2000 is a nullity.

Another Issue

1. Section 94 of the Marriage Act provides for the offence of bigamy. The penalty for such an offence is imprisonment for five years.

2. The Court has noted above that on the marriage certificate relating to the applicant’s marriage in March 2000 the applicant is described as “never validly married”.

3. That assertion can only be as a consequence of the applicant’s representations at the time of the ceremony or prior thereto.

4. As a consequence it is incumbent upon the Court to consider whether the papers in these proceedings should be referred to the Commonwealth Attorney General so as to give consideration as to whether the applicant should be charged with the offence referred to.

5. The Court will afford to the applicant an opportunity to provide to the Court further evidence that would assist the Court’s deliberation in this regard.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 12 November 2013.

Associate: 

Date:  12 November 2013