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

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

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.
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

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.
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…

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.

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Details

AGLC: CHABRA & CHABRA [2020] FamCA 1113
Case: [2020] FamCA 1113
Decision Date

CaseChat Overview and Summary

In *Chabra & Chabra* [2020] FamCA 1113, the Family Court of Australia considered an application by Ms Chabra (the wife) for a decree of nullity of her marriage to Mr Chabra (the husband). The wife sought the nullity on the grounds that the husband was already lawfully married to another person at the time of their marriage ceremony in mid-2018. The husband did not file any material or cross-examine the wife to challenge her assertions.

The primary legal issue before the court was whether the marriage was void pursuant to s 23B(1)(a) of the *Marriage Act 1961* (Cth), which states that a marriage is void if either party is lawfully married to another person at the time of the marriage. The court also considered an oral application by the husband for an adjournment, which was made during the hearing.

Justice Tree applied the principle that the presumption of a valid marriage casts the burden of proof on those alleging invalidity, requiring reasonable evidence of the impediment. The standard of proof was the balance of probabilities, with the court taking into account the gravity of the allegation. The court found that the cumulative evidence, including the first wife's passport showing she was still married to the husband, the husband's request for the first wife to be a second wife in their relationship, and his transfer of a significant sum of money to the first wife, persuaded it on the balance of probabilities that the husband was not divorced at the time of his marriage to the wife. The husband's inconsistent explanations and failure to challenge the wife's evidence further supported this conclusion. The court also refused the husband's adjournment application, finding he had been afforded sufficient opportunity to present his case and that the interests of justice supported the hearing proceeding.

The court declared the marriage between Ms Chabra and Mr Chabra void on the ground that the husband was lawfully married to another person at the time of their marriage, thus rendering the marriage a nullity. The wife's Initiating Application was otherwise dismissed.

Orders