Chi and Xana
[2019] FamCA 606
•29 August 2019
FAMILY COURT OF AUSTRALIA
| CHI & XANA | [2019] FamCA 606 |
| FAMILY LAW – NULLITY – declaration that the annulment granted in Country D is a valid annulment for the purposes of Australian law. |
| Family Law Act 1975 (Cth) ss. 104, 113 |
| Anderson & McIntosh [2013] FamCAFC 200 Chandra& Alhoub [2015] FamCA 77 |
| APPLICANT: | Ms Chi |
| RESPONDENT: | Mr Xana |
| FILE NUMBER: | BRC | 12389 | of | 2017 |
| DATE DELIVERED: | 29 August 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Baumann J |
| HEARING DATE: | 14 June 2019 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Accuro Legal (Brisbane) |
| NO APPEARANCE BY THE RESPONDENT |
Orders
That personal service upon the Respondent, Mr Xana is dispensed with.
That a declaration is made that the annulment granted on 10 May 2018 in Country D, of the marriage solemnised in Australia between the Applicant and the Respondent on 9 October 2015, is a valid annulment for the purposes of Australian law.
That leave is given to the Applicant to provide a copy of this Order to the Registry of Births, Deaths and Marriages (Queensland).
That all other applications are 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 Chi & Xana 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 BRISBANE |
FILE NUMBER: BRC 12389 of 2017
| Ms Chi |
Applicant
And
| Mr Xana |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant Ms Chi seeks a declaration that the Civil judgment of the Court in Country D dated 10 May 2018 that “the marriage between the plaintiff Ms Chi and the defendant Mr Xana is deemed annulled” is valid in Australia.
I am satisfied that the Applicant has taken all reasonable steps to serve the Respondent Mr Xana with the Initiating Application filed 21 November 2017 (and amended 25 July 2018). For completeness, I intend to make an order dispensing with personal service on the Respondent. The effect of the amended Application, filed after the order was made in the Court in Country D, was to seek a declaration that the judgment was valid in Australia where the initial application sought a decree of nullity.
The Respondent has not sought to appear in these proceedings or file any material. It is noted that the Respondent did not appear in the Country D proceedings.
I am satisfied that:
a)both parties are Country D Citizens and currently reside in Country D;
b)the Respondent married Ms B in Country D in January 2012;
c)in March 2015, the parties came to Australia pursuant to a visa, the Respondent having earlier informed the Applicant his marriage to Ms B had been dissolved by a valid divorce;
d)in 2015, the parties were married at the General Registry Office, Brisbane with the Respondent declaring himself “never validly married”;
e)the Applicant deposes to having separated in February 2016 and that reconciliation has not occurred;
f)at the time of the marriage in Australia, the Respondent was validly married. The Respondent “went through divorce registration procedure at the Civil Affairs in city M in 2018”;
g)on 21 November 2017, the Applicant filed an application in this Court seeking, in effect, a decree of nullity under s 51 of the Family Law Act 1975 (“the Act”), on the basis that the marriage was void pursuant to Part III of the Marriage Act 1961;
h)as a result of becoming aware of the Respondent’s divorce in Country D, the Applicant:
i)commenced proceedings in the Court in Country D seeking an annulment of their marriage; and
ii)after obtaining the judgment from the Court in Country D, amended the Application to the Family Court of Australia on 25 July 2018 seeking a declaration rather than a decree of nullity.
Jurisdiction
As was noted in Anderson & McIntosh [2013] FamCAFC 200 at paragraph [66] by Bryant CJ, May and Thackray JJ “The more generic word ‘annulment’ is used in a way that captures both Australian and foreign processes, whereas the specific expression ‘decree of nullity of marriage’ is reserved for use when dealing with proceedings under the Act.
The Application by the Applicant seeks a declaration under s 113 of the Family Law Act 1975 and the proceedings are of a kind referred to in paragraph (b) of the definition of matrimonial cause in subsection 4(i), namely proceedings for a declaration as to the validity of “(iii) the annulment of a marriage by decree or otherwise”.
Section 113 of the Act provides the power to make such declaration “as is justified”, but does not otherwise prescribe the factors which should be considered to exercise the discretion. In that regard, authorities to which I have been referred by lawyers for the Applicant, refer to the criteria set out in s 104(3) of the Act which provides relevantly when the annulment of a marriage effected in accordance with the law of an overseas jurisdiction shall be recognised as valid in Australia.
In respect of jurisdiction, it is necessary for the Applicant to satisfy the Court that at the time of the filing of the Application, namely 21 November 2017, the Respondent was “present in Australia”. The Applicant concedes, in her Application, that she was not present or a citizen of Australia at the time of filing.
In an Affidavit filed 5 February 2018 by Mr F, a paralegal in the firm of the solicitors for the Applicant, for the purpose of seeking to dispense with service, particulars are given of attempts to contact the Respondent – all unsuccessful. I am asked to rely upon the Affidavit (particularly paragraph 5) as a basis for a reasonable inference that the Respondent was present in Australia at 21 November 2017. He had local lawyers acting for him and they offered an Australian mobile phone number to contact him. Although it would have been possible to subpoena records from Australian Border Force/Immigration authorities likely to demonstrate movement in and out of Australia by the Respondent around the time of the filing of the Application, in the circumstances of this case, I am prepared to make the inference that at the time of the filing of the Application the Respondent was present in Australia.
I am satisfied that s 104(3) has been satisfied and that, as a result, the annulment of marriage granted in accordance with the laws of Country D on 10 May 2018, shall be recognised as valid in Australia.
I am satisfied that neither of the exceptions to recognition of the annulment of marriage prescribed by s 104(4) apply on the facts in this case.
I accept there appears to be no formal processes by which Australian authorities are to be informed that the overseas order is recognised under Australian law – although as s 104 is a valid domestic enactment of the obligations accepted by Australia and gives effect to those obligations under the Hague Convention on the Recognition of Divorces and Legal Separation dated 1 June 1970, it is arguable that no further declaration by this Court is required. Nonetheless, the Applicant seeks the declaration under s 113 of the Act.
Declaration under s 113 of the family law act 1975
As Cronin J in Chandra& Alhoub [2015] FamCA 77 noted:
“In In the Marriage of Tansell (1977) 3 Fam LR 11,466, the Full Court when dealing with an application for a declaration as to validity of a marriage said that, as a matter of law, the court should not grant relief where the validity was not in doubt or where the declaration can have no effect on the parties or their status”
Although those proceedings related to a marriage, in my view the same principles should apply to an overseas annulment of marriage.
In Chandra & Alhoub (supra), the Applicant provided evidence that as he is recorded in Australia as “still married”, he still needed the declaration as to the validity of the overseas divorce to establish the authenticity of the overseas order (see paragraph [30]).
The Applicant in these proceedings says:
a)on 14 June 2019, the Applicant sought procedural clarification from the Queensland Registry of Births, Deaths and Marriages that if the Applicant should wish to marry again in Australia (more specifically in Queensland) and provides a certified copy of the Country D annulment judgment with English translation:
“…will the Registry be satisfied that:
1.she has in fact never validly married before and thus can register the new marriage; or
2.will the Registry require her to provide an order from the Family Court of Australia declaring that the Country D annulment judgment is valid in Australia prior to the new marriage registration?”
b)In a response from the Registry date 2 July 2019, after noting that the Registry “is unable to provide legal advice” and that the Registry’s role relates “only to maintaining a registry of life events, including registering marriages which have occurred in Queensland”, the email offered as evidence then says, curiously, that:
“RBDM will require an Australian court order to register any new marriage of Ms Chi that occurred in Queensland.”
c)No basis for this “requirement” is offered by the Registry. Not surprisingly, the Applicant relies on this statement, and in the circumstances where the letter is relied upon by an officer of the Court (the Applicant’s solicitor), the Court has decided to enquire no further about this “requirement”;
d)The Applicant relies upon an “opinion” expressed by the Country D licensed lawyer Mr L dated 6 March 2019. The “opinion” is produced in Language G with a translation, but has not been probatively sworn to under oath (or affirmation). It is merely attached to the outline of submission dated 29 March 2019. The effect of this document is that:
i)Although the Applicant “can now legally register and marry someone in Country D, she will be recognised by the law in Country D to have two effective marriages, which is bigamy, if she does not receive a written judgment from the Australian marriage and Family Court to declare her marriage with Mr Xana to be ineffective”; and
ii)If the Applicant’s future husband became aware of the lack of a declaration from the Australian Court, “her family, according to traditional Country D culture and values, is likely to fall apart because of this” and the Applicant could be pursued for “criminal responsibility for the alleged bigamy”; and
iii)In order to safeguard the Applicant’s “legitimate rights and interests”, the Applicant “not only needs a written judgment from the Court in Country D to declare the marriage invalid, but also requires a written judgment from the Australian Court to declare the marriage invalid”.
Conclusion
The Applicant submits she is a “victim and in a passive position” as a result of the false and untruthful behaviour of the man she married in Australia in 2015.
The Court has been mindful that, at first blush, the need for the Applicant’s application proceeding after she obtained the annulment from the Court in Country D in 2018 is not entirely clear.
In these uncontested proceedings, the Court has speculated as to any other purpose or need for the declaration now – seeking to be satisfied that the Application has no other ulterior purpose which could be an abuse of process.
No other purpose can be identified and although the reasons given based on evidence that is somewhat confusing or (within an Australian legal context), inconsistent with our domestic law (e.g. being at risk of a charge of bigamy where the first marriage has been annulled), in the end I am satisfied that the Applicant has justified the exercise of a discretion in her favour under s 113.
I make the orders sought accordingly.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 29 August 2019.
Associate:
Date: 29 August 2019
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