CHABRA & CHABRA

[2020] FamCA 1113

FAMILY COURT OF AUSTRALIA

CHABRA & CHABRA [2020] FamCA 1113

FAMILY LAW – NULLITY OF MARRIAGE – Where the wife seeks a decree of nullity of marriage on the grounds that the husband was still legally married to another person at the time of marriage – Where the husband did not seek to file material or cross-examine the wife to challenge her assertions – Where the evidence cumulatively establishes that the husband was legally married to another person at the time of marriage – Marriage declared void.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband made an oral application for an adjournment – Where the husband was afforded sufficient opportunity to file material – Where the interests of justice supported the hearing to proceed – Application refused.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 44
Marriage Act 1961 (Cth) s 23B

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 174
Axon v Axon (1937) 59 CLR 395

APPLICANT: Ms Chabra

RESPONDENT: Mr Chabra

FILE NUMBER: CSC 389 of 2020

DATE DELIVERED: 22 December 2020

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 18 December 2020

REPRESENTATION

THE APPLICANT: Self-represented litigant

THE RESPONDENT: Self-represented litigant

Orders

1. It is declared that the marriage between Ms Chabra and Mr Chabra solemnised in mid-2018 at B Town in the State of Queensland is void on the ground that the husband was lawfully married to another person at the time the said marriage was solemnised and thus the said marriage is therefore a nullity.

2. Otherwise the Initiating Application filed 1 June 2020 be dismissed. 

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 Chabra & Chabra 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 CAIRNS

FILE NUMBER: CSC 389 of 2020

Ms Chabra

Applicant

And

Mr Chabra

Respondent

REASONS FOR JUDGMENT

Introduction  

1. In mid-2018, Ms Chabra (“the wife”) went through a ceremony of marriage, solemnised by a registered marriage celebrant, to Mr Chabra (“the husband”) at B Town in Queensland.

2. By Initiating Application filed 1 June 2020, the wife seeks a decree of nullity of that marriage on the grounds that the husband was still legally married to his first wife, Ms C (“the first wife”). The Initiating Application and the affidavit supporting it, were served by the wife on the husband by a process server on 6 June 2020, and on 10 June 2020 the husband signed an acknowledgment of service which was in due course filed together with the affidavit of service. However, the husband did not thereafter participate in the proceedings, and in due course, the matter was listed for an undefended hearing before me on Thursday 29 October 2020.

3. However, unexpectedly, the husband attended that hearing, and consequently orders were made permitting him to file affidavit material. Notwithstanding that opportunity, he failed to file any such material, and when the matter came back before me on 16 December 2020, told me that he did not intend to file any material, and did not wish to cross-examine the wife. The matter was therefore set down for the hearing of submissions on 18 December 2020.

4. However on 18 December 2020, in fact it transpired that the husband did wish to cross-examine the wife, albeit on irrelevant matters. When I intervened, it became apparent that he wanted an adjournment, which application I dismissed for reasons to be given later.

5. After hearing the parties’ submissions, I reserved my decision. This is that decision and the reasons for it. It is convenient to also include in this judgment my reasons for refusing the husband’s oral application for an adjournment.

Background

1. The wife was born in Australia in 1978, and hence is presently 42 years of age. The husband was born in Country D in 1981, and hence is presently 39 years of age. The husband married the first wife in Country D. In due course they adopted a child, who is presently 10 years of age.

2. At a date which is unclear on the evidence, the husband embarked upon a journey by sea to Australia as a refugee. He was subsequently intercepted and detained. Later he obtained a visa which permitted him to work in Australia, and it was at that point that he met the wife and they commenced a relationship.

3. The wife’s affidavit says that on two occasions prior to their relationship commencing, the husband told her that he was divorced from the first wife. He later produced to her what purports to be a certificate of the divorce registration from the first wife, issued in Country D in 2017, which showed that his divorce from her became effective in late 2017.

4. For her part, the wife had also been previously married and divorced.

5. In due course, the parties agreed to marry and went through the process of preparation for that. Both parties signed a “Declaration of No Legal Impediment to Marriage” document in mid-2018, in which both asserted that they were divorced persons. In due course, the husband produced the certificate of his divorce registration to the celebrant.

6. In mid-2018, the celebrant solemnised the marriage between the wife and the husband.

7. On 1 August 2018, the husband obtained a safe haven enterprise visa, which enabled him to apply for permission to travel to and from Australia. The wife says that thereafter his attitude towards her changed, and particularly he began planning a trip for himself to Country F, without consulting her.

8. Curiously, also on 1 August 2018, the first wife obtained a Country D passport. It stated that she was married to the husband.

9. In due course, the husband left Australia and returned after five weeks away. After his return, the wife checked the husband’s phone and discovered a photograph of the first wife’s passport issued on 1 August 2018, which named the husband as the first wife’s husband. When confronted with this, the husband sought to persuade the wife that he was not married to the first wife, and over time, provided two conflicting explanations as to why the first wife’s passport named him as her husband. Nonetheless, he thereafter ensured that the wife could no longer access his mobile phone.

10. Later, the wife fell pregnant to the husband, at which time the husband, according to the wife “demanded that I accept [the first wife] as a second wife in our relationship.” The wife refused.

11. A little later, the wife found evidence that the husband had recently transferred over $80,000 to the first wife in Country D. They argued about him providing the first wife with that money. In the course of that discussion, the husband again sought to introduce the first wife into the parties’ relationship as a second wife.

12. Sadly, a little later the wife miscarried. Not long afterwards, on 16 July 2019, the wife and husband separated.

13. Unsurprisingly the wife’s suspicions continued, and she sought advice as to the possibility that in fact the husband was not divorced, as he had claimed at the time of their marriage. Particularly, she sought advice from Country D High Commission in Canberra, providing them with a copy of the purported “Divorce Registration Certificate” said to be issued by the “government of K State Country D.” A consular official replied to her by email which said, in part, “we are not satisfied about the authentication of [the] document due to the ‘government of the K State’ and CRMS no is for 2018 while certificate was issued in 2017. [W]e also have a concern about attestation from foreign office.”

14. The former is a reference to the non-capitalised government title in the certificate. The latter is a reference to “18” appearing in the Divorce Registration Certificate number. It is said that, if it was issued (as distinct from attested) in 2017, that number should have been “17” instead, as appears on a Birth Registration Certificate also annexed to the wife’s affidavit, issued in 2017 in relation to the husband.

Why the adjournment was refused

1. I have already referred to the husband’s history of non-engagement in these proceedings. Particularly significant is his failure to comply with any orders of the court to file material. The Registrar’s orders of 22 July and 16 September 2020 provided for the husband to file and serve a Response and affidavit to the wife’s application, as did my orders of 29 October 2020. In addition to my orders of 29 October 2020, a notation was made directing the husband to contact the National Enquiry Centre to obtain assistance with filing his documents. On 16 December 2020, the husband told me he had not done so because his brothers in Country D were not prepared to help him.

2. Although no affidavit was filed in support of the oral application for an adjournment, during submissions, the husband told me a brother in Country D had, only the night before, indicated he would now be willing to help.

3. Even if that be so, precisely what assistance might be offered was unclear. In any event, the husband has been on notice of the wife’s case against him since 6 June 2020, has been afforded ample opportunity to file material, including with the assistance of the National Enquiry Centre, yet has not filed one piece of paper thereafter.

4. Ordinarily, the efficient use of scarce judicial resources mandates that matters should proceed when listed. It is only the opportunity to present evidence and argument which the interests of justice requires, not the actuality of it. Thus where a party has had a sufficient opportunity to put forward his or her case, it may be necessary for the court to make a decision for the sake of doing justice to the other party and to other litigants (Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 174 at [94]).

5. Here, the wife is entitled to a timely resolution of her disputed status of whether or not she is married, which necessarily impedes her ability to move forward, either by seeking a divorce, or to know that the marriage was never valid.

6. I was well satisfied on 18 December 2020 that the interests of justice required that the hearing proceed, and therefore I refused to adjourn the matter.   

Relevant statutory provisions and legal principles

1. Section 44(1A) of the Family Law Act 1975 (Cth) provides that proceedings for a decree of nullity of marriage may be commenced in this court.

2. Section 23B(1)(a) of the Marriage Act 1961 (Cth) provides that a marriage is void where, amongst other circumstances, either of the parties is, at the time of the marriage, lawfully married to some other person.

3. In Axon v Axon (1937) 59 CLR 395 at 403–404, Dixon J (as his Honour then was) said:

   The presumption in favour of the validity of a marriage duly celebrated casts upon those who deny it the burden of producing reasonable evidence of the fact which renders the marriage void, whether that fact is an impediment consisting in a prior marriage or a prohibited degree of relationship or the failure to fulfil some condition indispensable to the efficacy of the ceremony.

4. The standard of proof applicable to such a proceeding is on the balance of probabilities, although the gravity of the matters alleged need to be taken into account in determining whether the court is satisfied (Evidence Act 1995 (Cth), s 140).

Was the husband already married at the time he purported to marry the wife

1. There can be no doubt that the husband had previously been married to the first wife prior to 2018. The question is whether he was ever divorced. As to that, the wife says that the purported “Divorce Registration Certificate” is likely not authentic for the reasons identified by the officer of Country D High Commission in his email to her. The wife also relies upon:

   ·The husband’s request of the wife to have the first wife as a second wife in their relationship;

   ·His transfer to the first wife of $80,000 during the course of the parties’ marriage;

   ·The fact that the first wife’s passport, issued on 1 August 2018, showed that she was still married to the husband, and when the wife confronted the husband with that, whilst he denied it, he thereafter ensured she could not access his phone;

   ·Notwithstanding my explanation to the husband on 16 December 2020 that, absent contrary evidence from him or him challenging the wife’s evidence in cross-examination, I would be likely to accept her evidence, he nonetheless has not challenged her assertions in any way, other than to deny he remained married to the first wife at the time of his marriage to the wife.

2. The question for my consideration is whether those matters cumulatively persuade me, on the balance of probabilities, of the reasonably grave allegation that in fact the husband was not divorced from the first wife at the time when the parties’ marriage was solemnised.

3. Although the evidence plainly does not compel such a conclusion, nonetheless on the balance of probabilities, I am so satisfied. Particularly I place weight upon the first wife’s 1 August 2018 passport showing her still married to the husband, and the husband’s wish to have the first wife join the parties’ relationship, the latter of which seems a most unlikely situation if indeed the husband had only recently been divorced from her. I also place weight upon his transfer of a substantial sum of money to the first wife during the parties’ marriage. I place some weight upon the incongruities in the Divorce Registration Certificate, particularly given Country D High Commission’s concerns as to its authenticity.

4. Finally, I should note two other significant matters. The first is that in submissions, the husband gave a third explanation for why the first wife’s passport issued on 1 August 2018 named him as her husband; it is an explanation inconsistent with the previous two offered to the wife. The second is that, despite copious opportunities to do so, the husband has not ever challenged the wife’s version of events.

Conclusion

1. For these reasons, there will be a declaration that the marriage between the wife and husband is void on the ground that the husband was then lawfully married to another person at the time the marriage was solemnised, and is therefore null.

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 22 December 2020.

Associate: 

Date: 22 December 2020