Chou and Tang

[2017] FamCA 129

FAMILY COURT OF AUSTRALIA

CHOU & TANG [2017] FamCA 129

FAMILY LAW – DIVORCE – NULLITY – STOLEN IDENTITY – Where Applicant’s consent to marriage obtained by fraud – Where marriage declared to be void ab initio – Where divorce declared to be void ab initio.

Family Law Act 1975 (Cth)

APPLICANT: Ms Chou

RESPONDENT: Mr Tang

FILE NUMBER: SYC 228 of 2017

DATE DELIVERED: 8 March 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 22 February 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Gardiner

THE RESPONDENT: No appearance

Orders

1. Service of the Initiating Application filed by Ms Chou upon Mr Tang is dispensed with.

2. By decree pursuant to section 51 of the Family Law Act, the marriage purported to be solemnised on … 2000 between Ms Chou and Mr Tang is declared to be void ab initio.

3. Pursuant to section 113 of the Family Law Act, the divorce order purported to have been pronounced on 3 November 2005 and which purported to have become absolute on 4 December 2005 between Ms Chou and Mr Tang is declared to be void ab initio.

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 Chou & Tang 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 SYDNEY

FILE NUMBER: SYC 228  of 2017

Ms Chou

Applicant

And

Mr Tang

Respondent

EX PARTE REASONS FOR JUDGMENT

The proceedings

1. By an Initiating Application filed on 16 January 2017 Ms Chou sought the following orders:

   1.That service of this Application on the Respondent be dispensed with.

   2.That this Application be dealt with ex-parte.

   3.That the marriage between [Mr Tang] and [Ms Chou] on … 2000, registration number …, be declared void ab initio.

   4.That the divorce between Mr Tang and Ms Chou granted on 3 November 2005 and absolute on 4 December 2005 be declared void ab initio.

2. The applicant contended that the purported marriage between herself and Mr Tang in 2000 was void for the purposes of section 51 of the Family Law Act 1975 (Cth) (“The Act”), on the basis that she gave no consent. The applicant alleged that her apparent consent was obtained by fraud, within the meaning of section 23B of the Marriage Act 1961 (Cth), in circumstances of a theft of her identity.

3. Section 23B provides as follows:

   23B  Grounds on which marriages are void

   (1)A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:

   (a)either of the parties is, at the time of the marriage, lawfully married to some other person;

   (b)the parties are within a prohibited relationship;

   (c)by reason of section 48 the marriage is not a valid marriage;

   (d)the consent of either of the parties is not a real consent because:

   (i)     it was obtained by duress or fraud;

   (ii)    that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or

   (iii)   that party is mentally incapable of understanding the nature and effect of the marriage ceremony; or

   (e)either of the parties is not of marriageable age;

   and not otherwise.

   (2)Marriages of parties within a prohibited relationship are marriages:

   (a)between a person and an ancestor or descendant of the person; or

   (b)between a brother and a sister (whether of the whole blood or the half‑blood).

   (3)Any relationship specified in subsection (2) includes a relationship traced through, or to, a person who is or was an adopted child, and, for that purpose, the relationship between an adopted child and the adoptive parent, or each of the adoptive parents, of the child shall be deemed to be or to have been the natural relationship of child and parent.

   (4)Nothing in subsection (3) makes it lawful for a person to marry a person whom the first‑mentioned person could not lawfully have married if that subsection had not been enacted.

   (5)For the purposes of this section:

   (a)a person who has at any time been adopted by another person shall be deemed to remain the adopted child of that other person notwithstanding that any order by which the adoption was effected has been annulled, cancelled or discharged or that the adoption has for any other reason ceased to be effective; and

   (b)a person who has been adopted on more than one occasion shall be deemed to be the adopted child of each person by whom the first‑mentioned person has been adopted.

   (6)For the purposes of this section:

   adopted, in relation to a child, means adopted under the law of any place (whether in or out of Australia) relating to the adoption of children.

   ancestor, in relation to a person, means any person from whom the first‑mentioned person is descended including a parent of the first‑mentioned person.

4. The applicant sought a declaration pursuant to section 113 of the Act that the divorce order pronounced on 3 November 2005 is "void ab initio". Section 113 provides as follows:

   113  Proceedings for declarations

   In proceedings of the kind referred to in paragraph (b) of the definition of matrimonial cause in subsection 4(1), the court may make such declaration as is justified.

5. Pursuant to section 4(1)(a)(i) of the Act the term "matrimonial cause" includes "a divorce order in relation to the marriage".  The applicant could not seek a rescission of the divorce order pursuant to section 58 of the Act because that decree became absolute on 4 December 2005.

6. Section 58 of the Act provides as follows:

   58  Rescission of divorce orderon ground of miscarriage of justice

   If a divorce orderhas been made in proceedings but has not taken effect, the court by which the divorce order was made may, on the application of a party to the proceedings, or on the intervention of the Attorney‑General, if it is satisfied that there has been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other circumstance, rescind the divorce order and, if it thinks fit, order that the proceedings be re‑heard.

7. The applicant relied on two affidavits, both of which she swore on 16 January 2017.  Essentially, the applicant's case is that she was the victim of identity theft prior to the purported marriage.  She contended that she had no knowledge of, and played absolutely no part in, either the purported marriage or the proceedings which resulted in the divorce order.

8. The applicant deposed that she has never heard of nor met Mr Tang and has no means of locating this person, for the purposes of service of her application.  She deposed further that she feels "violated and unsafe" in circumstances where this person appears to have been actively involved in the theft of her identity.

9. The applicant sought dispensation of service of her application upon

   
   

   Mr Tang.  She set out her reasons as follows:

   Dispensation of Service and Ex-Parte Hearing

   10.I am asking this Honourable Court to dispense with the requirement to serve this application on [Mr Tang] as I do not know who he is, where he resides, his contact details including email or phone number.  Furthermore, I am fearful of [Mr Tang].

   11.I have attempted to track down [Mr Tang] through a Births Deaths and Marriages name and date of birth search.  I asked [Mr B] (who is referred to in paragraph 51 of Affidavit (1) sworn by me) if he could track him down.  He said to me "We have tried.  The name is so common and there is simply too many hits.  Even with the date of birth.  We have contacted the Federal Police and they said to me they have no records with his name or date of birth."  He showed me a copy of the email from the police which said "We were not able to locate any records under this name."  He was not able to provide me with a copy of that email.

   12.I have also conducted an electoral roll search of [Mr Tang] at his address listed on the divorce application through the government website check.aec.gov.au and there was no results for his name.

   13.I have searched for [Mr Tang] on google and Facebook using his name and date of birth and my searches have all returned fruitless.

   14.In the event [Mr Tang] was to be involved in these proceedings I would not want to see him, be near him or have any of the information contained in this Affidavit or Affidavit (1) regarding my personal background and other information disclosed to him.  I feel as though I have been violated by this person to an extreme degree and he has committed a crime against me.

   15.I feel fearful and violated by his fraudulent activity and identity theft and I do not want him to know anything further about me."

10. I accept that the applicant has made these unsuccessful endeavours to locate Mr Tang.  I accept further that she genuinely holds the fears and concerns to which she deposed, in relation to any contact with this person and his learning of her whereabouts.  I will dispense with service upon Mr Tang of the applicant's Initiating Application filed on 16 January 2017.

Background

1. This background material is extracted from the two affidavits sworn by the applicant on 16 January 2017.  In circumstances of non-service of the application, there was no evidence from Mr Tang.

2. The applicant was born in 1981 in Country A and migrated to Australia with her family in 1983.  She acquired Australian Citizenship on 22 April 1997, at the age of 15 years.

3. The applicant has a daughter, C, who was born in 2007 and is nine years of age.  C's father is Mr D.  The applicant deposed that she never married Mr D or any other person.

4. The applicant is in a de facto relationship with Mr E, with whom she began to live on 6 July 2014.  She attended the New South Wales Registry of Births, Deaths and Marriages ("BDM") on 12 August 2014, in order to obtain a Single Status certificate.  Her intention was to register the de facto relationship, to assist in her sponsorship of Mr E for an Australian Partner Visa.

5. The applicant provided to a BDM officer her passport, certificate of Australian citizenship and a translation of her birth certificate.  This officer informed the applicant that there was a person with a similar name and personal details who was registered as "married" but, nonetheless, issued the Single Status certificate.

6. In the course of Mr E's visa application process, the Department of Immigration required an explanation from the applicant as to why she gave an incorrect answer to the question "Have you previously sponsored/nominated a spouse, de facto partner, prospective spouse (fiancée) or independent partner?"  She answered "No" to that question and strongly maintained that this response was true and correct.

7. On 8 March 2016 the applicant attended BDM and discovered that a marriage took place in 2000 between a person who matched her identity and one Mr Tang.  The applicant deposed that she has never heard of nor met Mr Tang, the purported witnesses to the marriage Ms F and Mr G, nor the celebrant Mr H.  She deposed further that she has no knowledge of the address I Street, Suburb J, which appeared on the marriage documents and in the divorce file in relation to Mr Tang.

8. The applicant deposed to her belief that a previous boyfriend, Mr K, sold copies of her passport and other forms of identification in order to obtain money to feed his gambling addiction.  She was in a relationship with Mr K between 1999 and December 2001.

9. The applicant set out in her affidavit an account of her attempts to rectify the records of BDM by extensive dealings with one of its officers.  These attempts proved to be unsuccessful.  In June 2016 the applicant reported the matter to New South Wales Police, who declined to take any action as the problem was considered "a civil matter".

10. The applicant and her migration agent also made attempts to rectify the situation with the Department of Immigration.  When these endeavours also proved to be unsuccessful, the applicant decided to commence proceedings for a decree of nullity of marriage.

11. On 18 August 2016 the applicant's solicitor attempted to file her application for a decree of nullity.  She was informed by a court staff member that the marriage had been dissolved by a divorce order in December 2005.  The staff member declined to accept the application.  The applicant deposed to her shock and distress at the revelation that she had not only been married but also divorced without her knowledge, consent or participation.

12. The applicant and her solicitor inspected the divorce file on 19 August 2016.  The applicant deposed that she had never before seen any of these documents and that she had signed nothing contained in the file.

13. The name "Mr L" of "M Solicitors" of Sydney Suburb N appeared in the divorce file as the legal representative of Mr Tang.  At the hearing on 22 February 2017 I enquired whether any attempt had been made to obtain information from that law firm.  I was informed that the applicant telephoned the firm and learned that their file is no longer in existence.

Consideration

1. I accept the evidence of the applicant, to the effect that she had no knowledge of and did not participate in the purported ceremony of marriage with Mr Tang in 2000. Accordingly, I find that the purported consent of Ms Chou to the marriage solemnised in 2000 to Mr Tang was obtained by fraud within the meaning of section 23B(1) of the Marriage Act 1961 (Cth). I will make a decree that this marriage is void.

2. I accept the evidence of the applicant, to the effect that she had no knowledge of, and did not participate in, the proceedings which resulted in the divorce order pronounced on 3 November 2005. I am satisfied that the court has jurisdiction, pursuant to section 113 of the Act to make a declaration that such order for divorce is void.

3. I have regard to, and respectfully agree with, the statements of Evatt CJ in Miller and Miller (1983) FLC 91-328.  Her Honour said (at pp 91-328 –

   
   

   91-329):

   I would, nevertheless, agree that there are limited circumstances in which a Court may set aside a decree of divorce notwithstanding that it has become absolute and also circumstances in which a decree may be treated or acted upon by the parties or by a Court as a nullity even though it has not been formally set aside.

   There seem to be two possible situations.  The first would arise when there is a fundamental flaw in the exercise of jurisdiction, a flaw which is fatal to the validity of the decree.  When such a matter is established, the decree must fail, and must be treated by the Court and for all purposes as a nullity, void ab initio.  The dissolution of a non-existent marriage would obviously come into this category."

4. I have found that the purported marriage solemnised in 2000 is void because the apparent consent of the applicant was obtained by fraud.  Accordingly, the divorce order pronounced on 3 November 2005 dissolved a non-existent marriage.  I will make the declaration sought by the applicant.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 8 March 2017.

Associate: 

Date:  8 March 2017