Choi and Figuera

[2017] FamCA 90

FAMILY COURT OF AUSTRALIA

CHOI & FIGUERA [2017] FamCA 90

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

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

APPLICANT: Ms Choi

RESPONDENT: Mr Figuera

FILE NUMBER: PAC 5010 of 2016

DATE DELIVERED: 24 February 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 13 February 2017

REPRESENTATION

APPLICANT – SELF REPRESENTED LITIGANT: Ms Choi

RESPONDENT – SELF REPRESENTED LITIGANT No appearance

Orders

1. That it be declared that the marriage between the applicant Ms Choi and the respondent Mr Figuera conducted at Suburb B, New South Wales on … 2011 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 Choi & Figuera 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 5010  of 2016

Ms Choi

Applicant

And

Mr Figuera

Respondent

REASONS FOR JUDGMENT

1. The applicant wife by Application filed 26 October 2016 seeks a declaration that the marriage between her and the respondent husband conducted in 2011 be declared a nullity.

2. By reason of orders for substituted service made by a Registrar on 20 December 2016 and Affidavits as to Substituted Service sworn by the applicant on 24 October 2016 and 13 February 2017 the Court is satisfied that the order for substituted service on the respondent husband has been complied with.

3. The application of the wife was listed before the Court on 13 February 2017. There was no appearance by or on behalf of the respondent husband.

4. It is appropriate that the application proceed to determination in the respondent husband’s absence.

Background

1. The applicant wife relied upon her affidavit filed 26 October 2016 in support of the application.

2. The applicant wife is 40 years of age and the respondent husband 42 years of age.

3. The applicant wife migrated to Australia on a permanent resident visa in May 2009.

4. Subsequent to arriving in Australia the respondent met the husband in January 2010. A relationship between them commenced and they married in early 2011. The marriage ceremony was performed by a marriage celebrant.

5. The applicant was aware that the respondent had two children but had no knowledge that he had been previously married.

6. In August 2011 the applicant became aware that the respondent had remained in Australia illegally by overstaying a tourist visa.

7. Application was made in relation to the respondent’s immigration status and in the context of that application the applicant became aware that the respondent was previously married in Country C in 2005. A certificate to that effect dated 7 February 2012 was provided by the Office of the Civil Registrar General in Country C.

8. Following the revelations as to the respondent’s previous and still existing marriage the respondent departed Australia on 7 August 2012 and has not returned.

9. To the knowledge of the applicant the respondent’s previous marriage in Country C in 2005 remains in place.

10. The Marriage Certificate as to the marriage between the applicant and respondent in 2011 reveals that the respondent falsely described his conjugal status at that time as “never validly married”.

11. The applicant says that she was devastated by the deception of the respondent leading to the delay in applying to the Court for the present declaration sought by her.

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 2011 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 B, New South Wales in 2011 is a nullity.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 24 February 2017.

Associate: 

Date:  22 February 2017