Chow and Zu; Fang and Hung
[2019] FamCA 665
•18 September 2019
FAMILY COURT OF AUSTRALIA
| CHOW & ZU; FANG & HUNG | [2019] FamCA 665 |
| FAMILY LAW – NULLITY – Application for decree of nullity of marriage – Whether consent obtained by fraud – Where the Applicants were mistaken as to the nature of the ceremony – Where the marriages are not valid by reason of s 48 of the Marriage Act 1961 (Cth) – decree of nullity granted. |
| Family Law Act 1975 (Cth) ss 39, 51 Marriage Act 1961 (Cth) ss 23B, 45, 48, 50 |
| APPLICANT: (MLC 3317 of 2019) | Ms Chow |
| APPLICANT: (MLC 3315 of 2019) | Mr Fang |
| RESPONDENT: (MLC 3317 of 2019) | Mr Zu |
| RESPONDENT: (MLC 3315 of 2019) | Ms Hung |
| FILE NUMBER: | MLC MLC | 3317 3315 | of of | 2019 2019 |
| DATE DELIVERED: | 18 September 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Hartnett J |
| HEARING DATE: | 11 September 2019 |
| ORDERS MADE: | 11 September 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANTS: | Ms Dwyer |
| SOLICITOR FOR THE APPLICANTS: | Hutchinson Legal |
| THE RESPONDENTS: | No appearance |
Chow & Zu – MLC 3317 of 2019
Declaration
The Court is satisfied that the Applicant was present in Australia on the relevant date in satisfaction of ss 39(4)(a) and 39(4A) of the Family Law Act 1975 (Cth).
Orders
The marriage solemnised between Ms Chow and Mr Zu on 12 November 2018 is void.
A decree of nullity in relation to that marriage is granted.
Fang & Hung – MLC 3315 of 2019
Declaration
The Court is satisfied that the Applicant was present in Australia on the relevant date in satisfaction of ss 39(4)(a) and 39(4A) of the Family Law Act 1975 (Cth).
Orders
The marriage solemnised between Mr Fang and Ms Hung on 4 December 2018 is void.
A decree of nullity in relation to that marriage is granted.
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 Chow & Zu ; Fang & Hung 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 MELBOURNE |
FILE NUMBER: MLC 3317 of 2019 and MLC 3315 of 2019
| Ms Chow |
Applicant
And
| Mr Zu |
Respondent
| Mr Fang |
Applicant
And
| Ms Hung |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant (‘Ms Chow’) seeks a declaration that the marriage ceremony entered into between the Applicant and the Respondent (‘Mr Zu’) on 12 November 2018 is void and for a decree of nullity to be granted.
Ms Chow relies upon an initiating application filed on 29 March 2019, together with an affidavit affirmed by the Applicant on 26 March 2019 and an affidavit affirmed by Mr Fang on 3 September 2019 whose own application was heard concurrently with that of Ms Chow.
Mr Zu has filed no material in the proceedings. By order made by Registrar Sudholz on 4 September 2019, the requirement for service upon the Respondent was dispensed with.
The Applicant (‘Mr Fang’) seeks a declaration that the marriage ceremony entered into between the Applicant and the Respondent (‘Ms Hung’) on 4 December 2018 is void and for a decree of nullity to be granted.
Mr Fang relies upon an initiating application filed on 29 March 2019, together with affidavits affirmed by him on 26 March 2019 and 3 September 2019.
Ms Hung has filed no material in the proceedings. By order made by Registrar Sudholz on 4 September 2019, the requirement for service upon the Respondent was dispensed with.
Whilst in each of the initiating applications of Ms Chow and Mr Fang an order was sought that the Court be satisfied that each of the Applicants, Ms Chow and Mr Fang, were ordinarily resident in Australia, the Court could not be so satisfied, as was conceded by Counsel representing the Applicants. Neither of the Applicants are currently in Australia, both having returned to China. Both were, however, present in Australia at the time of filing of each of the initiating applications. This fact gave the Court its jurisdiction.[1]
[1]Family Law Act 1975 (Cth), ss 39(4)(a), 39(4A).
Background
Ms Chow was born in 1984. She is now aged 35 years. She is a Chinese citizen.
Mr Fang was born in 1974. He is now aged 44 years. He is a Chinese citizen.
On 11 November 2018, Ms Chow came to Australia on a tourist visa. Mr Fang was already in Australia. Both Applicants had met and become friends in China. Ms Chow and Mr Fang discussed the obtaining of visas other than a tourist visa which would allow each of them to remain in Australia. Mr Fang had met Mr Mr B through the internet and subsequently Mr B became Mr Fang’s trusted immigration advisor.
On the day following Ms Chow’s arrival in Australia, she, Mr Fang and Mr B caught a flight from Melbourne to Sydney to meet with a Mr D. Both Ms Chow and Mr Fang were requested by Mr D to transfer funds to an account nominated by him, Ms Chow in the sum of $100,000 and Mr Fang in the sum of $70,000, by way of application fees for the visas which they sought, namely visas that would give them residence in Australia.
Both Applicants signed a contract with C Company, with one of the terms of the contract being that if Ms Chow or Mr Fang contacted the Department of Home Affairs directly, then neither Ms Chow nor Mr Fang would obtain a refund of their application fees. That part of the evidence implied there was some prospect of a refund or partial refund of the monies advanced by them or at least an expectation by them that might occur.
Ms Chow and Mr Fang were, on 12 November 2018, taken by Mr D to the second floor of a shop in Sydney. On arrival, there was a man who spoke Chinese and another young man. Mr D told Ms Chow and Mr Fang that they should not speak. The young man asked Ms Chow in Chinese whether she was Ms Chow. Upon Ms Chow replying that she was, the young man took a form, from whom or from where is not in evidence, and had Ms Chow sign the form. Mr B and another man, Mr E, signed the form.
Ms Chow and Mr Fang’s evidence is that there was no time to read the document or any documents or look at any details. They were told they were unable to take any photos. Ms Chow was confused at the time, and only later became aware that she had married someone, namely a complete stranger, in a shop. Her evidence is that she did not know this was possible, and when she made inquiries of Mr B and Mr D they told her not to ask any questions.
Ms Chow was not handed a copy of a marriage certificate. Nor was the stranger. No marriage ceremony was conducted.
Ms Chow’s evidence is that she did not realise that she was married until she read the marriage certificate that she some time later received, that being an electronic screenshot copy of the certificate. She did not have explained to her the nature of the documents that she was signing. She and the alleged Mr Zu did not say any vows to each other or exchange rings. Ms Chow met Mr Zu only briefly. She knew nothing about him except for “what I saw when I met him, the details recorded on the marriage certificate and background information sent to me by Mr D and Mr B.”[2]
[2] Affidavit of Ms Chow affirmed 26 March 2019, [19].
Subsequently Mr Fang was able to locate the alleged Mr Zu, who advised Mr Fang that his personal information had been stolen and that the person whom Ms Chow married was not him.
On 4 December 2018, Mr Fang met with Mr B and Mr D in Sydney. He went through a similar procedure on the second floor of the shop to that undergone by Ms Chow as described above in these reasons. However, the other person signing the documents with Mr Fang was a Chinese woman, not a Chinese man. Mr Fang did not undergo a marriage ceremony or understand that he was in the process of obtaining an Australian marriage to a complete stranger. Mr Fang thought he was lawfully completing forms to obtain a visa to live in Australia. He did not understand the nature of the documents he was signing. He and Ms Hung did not say any vows or words to each other or exchange rings. He has never spoken to Ms Hung. He does not know her or how to contact her, and knew nothing about her at the time of the marriage except for what was recorded on the marriage certificate, which was some time later received by him in a photo forwarded to his phone. Neither he nor Ms Hung were handed a copy of a marriage certificate at the time of the alleged ceremony.
Mr Fang consulted lawyers who assisted him and Ms Chow to subpoena information from the Department of Home Affairs in order to put in train the process of cancellation of their fraudulently obtained visa applications. Mr Fang reported the matter in respect of both Applicants, to police.
Relevant legal principles
The application is made pursuant to s.51 of the Family Law Act 1975 (Cth) (‘the Act’) and the only ground upon which a degree of nullity may be granted is that the marriage is void. Section 23B(1) of the Marriage Act 1961 (Cth) (‘the Marriage Act’) relevantly provides:-
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:
…
(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 did not understand the nature and effect of the marriage ceremony; or
…
and not otherwise.
…
Section 48 of the Marriage Act relevantly provides:-
Certain marriages not solemnised in accordance with this Division to be invalid
(1) Subject to this section, a marriage solemnised otherwise than in accordance with the preceding provisions of this Division is not a valid marriage.
…
Section 45 of the Marriage Act relevantly provides:-
Form of ceremony
...
(2) Where a marriage is solemnised by or in the presence of an authorised celebrant, not being a minister of religion, it is sufficient if each of the parties says to the other, in the presence of the authorised celebrant and the witnesses, the words:
"I call upon the persons here present to witness that I, A.B. ( or C.D.), take thee, C.D. ( or A.B.), to be my lawful wedded wife ( or husband, or spouse)";
or words to that effect.
(3) Where a marriage has been solemnised by or in the presence of an authorised celebrant, a certificate of the marriage prepared and signed in accordance with section 50 is conclusive evidence that the marriage was solemnised in accordance with this section.
(4) Nothing in subsection (3) makes a certificate conclusive:
(a) where the fact that the marriage ceremony took place is in issue— as to that fact; or
(b) where the identity of a party to the marriage is in issue — as to the identity of that party.
Section 50 of the Marriage Act relevantly provides:-
Marriage certificates
(1) Where an authorised celebrant solemnises a marriage, the authorised celebrant shall:
(a) prepare a certificate of the marriage, in accordance with the prescribed form, for the purpose of issue to the parties to the marriage; and
(b) prepare 2 official certificates of the marriage.
(1A) Notwithstanding paragraph (1)(b), the regulations may provide that the person for the time being holding or acting in a specified office of a specified State or Territory shall prepare only 1 official certificate under that paragraph.
(2) Immediately after the solemnisation of the marriage, the authorised celebrant, each of the parties to the marriage and 2 witnesses of the marriage who are, or appear to the authorised celebrant to be, over the age of 18 years shall sign each of the certificates so prepared.
(3) One of the official certificates or the official certificate, as the case may be, shall be on the reverse side of the paper bearing the declarations made by the parties under section 42.
(4) The authorised celebrant shall hand the certificate referred to in paragraph (1)(a) to one of the parties to the marriage on behalf of the parties, and:
…
The legislation makes clear that notwithstanding the presumption created by s.45(3) of the Marriage Act, in instances where the parties dispute the fact that a marriage took place s.45(4) of the Marriage Act operates to rebut that presumption.
Consideration
The Applicant in each proceeding submits that the marriage is void, either because the marriage is not valid by reason of s.48 of the Marriage Act and/or that both Ms Chow and Mr Fang’s consent was not a real consent because both Applicants were mistaken as to the nature and effect of the ceremony performed, in Ms Chow’s instance on 12 November 2018, and in the instance of Mr Fang, on 4 December 2018.
Each of the Applicants need only establish one ground for the declaration and orders that they seek, but on the evidence before the Court both grounds can be made out. The marriage in each application is not valid by reason of s.48 of the Marriage Act because s.45 of the Marriage Act was not complied with:-
a)each of the parties to the alleged marriage did not say words to the effect as set out in s.45(2) of the Marriage Act; and
b)the presumption of validity by reason of production of the marriage certificate does not apply because the fact of the marriage ceremony taking place is in issue.[3]
[3]Marriage Act 1961 (Cth) s 45(4)(a).
The marriages of Ms Chow and the Respondent in proceedings MLC3317 of 2019 and Mr Fang and the Respondent in proceedings MLC 3315 of 2019 are void because each of Ms Chow and Mr Fang were mistaken as to the nature of the ceremony undergone by them. Both Ms Chow and Mr Fang have limited understanding of English. Ms Chow did not intend to marry Mr Zu and Mr Fang did not intend to marry Ms Hung. Ms Chow would not have done so had she known the true nature and effect of the process in which she was engaging. Mr Fang likewise would not have done so had he known the true nature and effect of the process in which he was engaging.
Additionally, on the evidence it does not appear that s.50 of the Marriage Act was complied with.
Mr Fang has brought these matters to the attention of the Department of Home Affairs and as a consequence of that self-reporting, both he and Ms Chow are no longer in Australia and have returned to China.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hartnett delivered on 18 September 2019.
Associate:
Date: 18 September 2019.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Statutory Construction
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