CITATION : OATLEY and OATLEY

[2019] FCWA 105

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: OATLEY and OATLEY [2019] FCWA 105

CORAM: TYSON J

HEARD: 8 APRIL 2019

DELIVERED : Ex tempore

FILE NO/S: PTW 9409 of 2018

BETWEEN: MR OATLEY

Applicant

AND

MS OATLEY

Respondent

Catchwords:

FAMILY LAW - MARRIAGE - NULLITY - Undefended - Application for declaration of nullity of marriage - Overseas marriage in the Philippines - Where at the time of the marriage the respondent was married to another person - Where it is found that the marriage was therefore void - Declaration of nullity granted

EVIDENCE - Admissibility of documentary evidence - Business record exception to hearsay rule - Where the applicant did not provide a copy of the marriage certificate of the first marriage

Legislation:

Evidence Act 1906 (WA)
Family Law Act 1975 (Cth)
Marriage Act 1961 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms Van Zyle
Respondent	:	Did not participate

Solicitors:

Applicant	:	Perth Divorce Lawyers
Respondent	:	Self Represented Litigant

Case(s) referred to in decision(s):

JL & PTL [2006] FamCA 445

Pereira & Gangumi [2019] FamCA 121

Teves & Campomayor (1995) FLC 92-578

Victoria v Sutton (1998) 195 CLR 291

Zau & Ruk [2014] FamCA 709

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

TYSON J:

1[Mr Oatley] [“the husband”] seeks a declaration that the marriage ceremony entered into between him and [Ms Oatley] [“the wife”] in the Philippines on 10 May 2012 is void and for a decree of nullity to be granted.

2The husband’s application has proceeded to hearing on an undefended basis, as a result of the wife’s failure to participate, her failure to file any documents and her failure to appear today.

WHAT ARE THE FACTS?

3The husband was born [in] 1970 in the United Kingdom. He is 48 years of age and employed as a [dentist]. He is a dual Australian and British citizen.

4The wife was born [in] 1959 in the Philippines. She is 59 years of age. The husband is uncertain of her current occupation. The wife is a Filipino citizen and the husband understands she presently lives in the Philippines.

5The husband and wife were introduced by the wife’s sister [Ms M] who worked with the husband. At that time, the wife was living in the Philippines while the husband lived in Australia. From 2009 the husband and wife communicated with one another via email, telephone and Skype.

6In August 2009 the husband travelled to the Philippines to meet the wife. Later that year the wife travelled to Australia for approximately six months to assist her sister caring for their mother. The parties spent further time together.

7In May 2011 the husband visited the wife in the Philippines and proposed. After around a year of being engaged, they were then married in the Philippines.

8Prior to the wedding, the parties applied for a certificate to confirm there was no impediment to their marriage. As part of the application, the parties attended an interview where each of them were asked whether they were married previously. The wife replied that she had previously been married to [Mr G], they had separated in 1990 and he had passed away in 2010. The husband had not previously been married.

9The certificate was lodged with the Australian Embassy in the Philippines. The wife’s statement of being a widow, was consistent with the marriage certificate.

10The parties’ marriage took place at the Regional Trial Court Bench in the Philippines, before the presiding Judge. The wedding ceremony was witnessed by members of both families and a copy of the marriage certificate is in evidence. The marriage was subsequently registered at the office of the Civil Registrar General on 14 May 2014.

11Following the parties’ marriage, on 9 January 2013 the wife applied for an Australian visa, being a Spousal Visa Sub Class 309. She remained in the Philippines pending processing of her visa, while the husband returned to Australia. The Department of Immigration and Border Protection in Australia wrote to the wife on 26 September 2013 raising concerns that false or misleading material had been provided as part of her Visa application.

12The Department noted a discrepancy in the wife’s information. They wrote:

At page 18, question number 61 of the Form 47SP, you were asked whether you have been married to a person other that (sic) your current sponsor (including if you are still legally married to that person). You answered that you were previously married to [Mr G] but this ended in separation and death of [Mr G].

However, we have received an Advisory on Marriages from the National Statistics Office (NSO) indicating that you were also married to [Mr R] [in] 1996 in [City C]. This is information which you have not included in your application.

13On 30 September 2013 the husband emailed the Department advising he was previously unaware that the wife had remarried after her first husband. He stated he would further advise the Department about their relationship status. The Department acknowledged receipt and asked the husband to inform them how he wanted to proceed within 28 days, failing which they would determine her application on the available evidence.

14On 10 October 2013 the wife prepared a response to the Department, which is annexure 4 to the husband’s affidavit filed 30 November 2018. The wife said she and Mr R were married in 1996, while she was pregnant. Mr R left her and moved to [Country C] to work. Their child was, sadly, stillborn and the relationship ended after approximately 18 months.

15She explained the reason she failed to disclose the marriage in the following terms:

The trauma and pain I went through with [Mr R] has made me forget he ever existed hence I did not even remember to tell this relationship to [Mr Oatley].

…

the trauma and pain I went through I have programmed it in my mind that this marriage never happened or existed.

16The husband understands the Department received the wife’s response, as their decision to ultimately refuse the wife’s Visa application on 12 March 2014 quotes parts of it.

17Based upon the wife’s information to the Department, at the time she married the husband, she remained legally married to Mr R. Neither the wife nor Mr R appear to have taken any steps to be legally divorced, despite the wife’s statement to the Department that Mr R has apparently remarried.

18In around May 2014, the husband told the wife their relationship was over, approximately two months after the Department’s decision to refuse the wife’s application for an Australian visa.

WHAT IS THE EVIDENCE RELIED UPON?

19The husband relies upon his affidavits filed 30 November 2018 and 19 March 2019. The husband gave some brief updating evidence today and I accept his unchallenged evidence.

WHAT HAS BEEN THE HISTORY OF PROCEEDINGS?

20The husband commenced proceedings on 30 November 2018 seeking a decree of nullity. The wife was personally served on 11 December 2018, at the home of her sister, [Ms M] at [Street A, Suburb G]. The wife signed the acknowledgement of service on that date.

21On 21 January 2019 the matter came before the Court. There was no appearance by the wife, despite her having been personally served. Orders were made that if the wife opposed the orders sought in the Initiating Application, she was to file and serve her responding documents within 35 days.

22Further orders were made requesting the Deputy Registrar to write to the wife at the address where she had been served, advising her that in the event she failed to file and serve her responding documents and failed to attend or instruct a solicitor to appear on her behalf on 5 March 2019, that further orders may be made in her absence without reference to her.

23The Deputy Registrar wrote to the wife in those terms on 23 January 2019. The wife was informed if she wished to appear by way of telephone on the adjourned date, to contact the Court. The Court distributed the orders of 21 January 2019 to the wife at the Suburb G address.

24On 5 March 2019 when the matter returned to Court there was again no appearance by the wife. She had failed to file and serve any responding documents. Orders were made giving the husband leave to file and serve any further affidavit in support of his application and for service of on the wife to be effected by way of post to the Suburb G address. The husband’s application was listed for hearing on an undefended basis on 8 April 2019.

25Additional orders were made that if the wife sought to participate she was required to file and serve her responding documents in accordance with the previous orders, together with an application and affidavit seeking leave to participate. The Court caused a copy of those orders also to be distributed to the wife at the Suburb G address.

26The proceedings were listed for hearing today at 2:15 pm. The matter was called and there was no appearance by the wife. I am satisfied that the wife is aware of these proceedings, firstly through having been personally served with the husband’s initiating documents, secondly through the correspondence sent by the Deputy Registrar of the Court together with the Court providing to the wife with the orders dated 21 January and 5 March 2019, and thirdly through having been served by way of post and email with the husband’s further affidavit. I am satisfied that provision of the documents to the Suburb G address enabled them to be brought to the attention of the wife, given that was the same address where she was personally served. It is the address where the wife’s sister resides and based upon the husband’s unchallenged evidence, the wife and Ms M have a close relationship.

WHAT IS THE LAW?

27Pursuant to section 51 of the Family Law Act1975 (Cth) a decree of nullity may be granted on the grounds that the marriage is void.

28There is no definition of the word “void” in the Act.[1]

[1] Teves & Campomayor (1995) FLC 92-578 at 81,732; Zau & Ruk [2014] FamCA 709 at [11].

29Most applications rely on s 23B of the Marriage Act 1961 (Cth) which is applicable to marriages solemnized in Australia (or in a foreign country under Part V of the Marriage Act) after 7 April 1986. Section 23B(1) of the Marriage Act provides that a marriage that took place on or after 20 June 1977 is void where (a) either of the parties was, at the time of the marriage, lawfully married to some other person.

30The marriage in this case was solemnised overseas, in the Philippines. Accordingly, s 23B ‘has no bearing’ on these circumstances.[2]

[2] See Teves & Campomayor (supra) at 81,733.

31The recognition of foreign marriage is dealt with in Part VA of the Marriage Act, to which [the] husband’s counsel relied. In Teves & Campomayor (1995) FLC 92-578, from 81,734 – 81,735 Lindenmeyer J discussed the legislative basis for which the Court may determine whether a marriage overseas is or is not valid. At 81,735 he said:

“It could, I think, be said that as the question of the essential validity of this marriage arises in proceedings for a decree of nullity… under Australian law, the question whether the marriage should or should not be recognised as valid in Australia arises as a question incidental to the determination on of that question of essential validity, and must therefore be determined in accordance with the provisions of Part VA of the Marriage Act.”

32There is a difference between a marriage that is void and a marriage that is not recognised as valid in Australia.[3] What, then, does “void” mean in this context?

[3] Teves & Campomayor (supra) at 81,734; Zau & Ruk (supra) at [17].

33The High Court in Victoria v Sutton (1998) 195 CLR 291 observed the difficulties arising with the use of the term ‘void”. Gaudrow, Gummow and Hayne JJ said:

38.Windeyer J said of the term “void” that it “has never been an easy word” and pointed out that it did not necessarily mean that the void act had no legal effect at all. In particular, where (as here) a disposition between two parties is described as “void” at the will of a third, the preferred construction is to read “void” as “voidable.”

(citations omitted)

34Kirby J adopted the respondent’s submissions in that case as to the problems created by the term “void”, and stated:

95. …

1.The word ”void” is inherently ambiguous. It sometimes means that the act in question has not, and never has had, any legal effect (void ab initio). But sometimes it means that the act becomes void as against the world or against those who cannot enforce or take advantage of it subsequently (void ex post facto). “Void” is in some context treated as synonymous with “voidable” or voidable at the election of the party for whose benefit a legal rule makes the transaction void. The task of a court, in differentiating between the available meanings of the word, is to ascertain the objective of the lawmaker in the particular circumstances. It is to discover the meaning to be attributed to the word which is natural to its context. Many past cases demonstrate that the use of the word “void” presents a problem of statutory construction. There is no settled meaning.

(citations omitted)

35To assist in considering the meaning intended to be attributed to the term “void” as it is used in s 51 of the Act, it is helpful to consider Part VA of the Marriage Act, which sets out circumstances in which foreign marriages may be recognised as valid under Australian law, noting the term “void” is not used.

36Relevantly, section 88C(1) of the Marriage Act provides:

“This Part applies to and in relation to every marriage solemnised, whether before or after the commencement of this Part, in a foreign country where: (a) under the local law, the marriage was, at the time when it was solemnised, recognised as valid …”

37Section 88D of the Marriage Act provides that a marriage to which that Part applies, will not be recognised as valid if either of the parties was at the time of the marriage, a party to a marriage with some other person which was at that time recognised in Australia as valid.

38I have no expert evidence as to the validity of the marriage in the foreign jurisdiction. Like Lindenmeyer J in Teves (supra), where the Court was dealing with the validity of a marriage in the Philippines, where one party did not participate and remained in the Philippines, I am encountering similar circumstances here.

39Lindenmeyer J found that despite there being no evidence about the law in the Philippines at the time of the solemnisation of the marriage, in relation to the recognition of the marriage as valid, in his view “that deficiency in the evidence is not fatal…”[4] The Court relied upon documents in order to be satisfied as to the validity of the foreign marriage.

[4] Teves & Campomayor (supra) at 81,735.

40In Teves & Campomayor (supra) the Court had a ‘certified true copy’ of an official document recording the parties’ marriage, called a ‘marriage contract’, and concluded that by virtue of s 88G(1) of the Marriage Act the certified true copy established the validity of the marriage for the purposes of s 88C(1)(a).

41Section 88G of the Marriage Act sets out what evidence the Court may rely on, and refers to a “document purporting to be either the original or a certified copy of a certificate, entry or record of a marriage alleged to have been solemnised in, or under the law of, a foreign country.” It must have been issued by an authority of that country. If such a document is produced, then it is prima facie evidence of the facts stated in the document and of the validity of the marriage to which the document relates.

42Where there is such a document produced pursuant to s 88G, the onus is

‘squarely placed upon the person or party who challenges, or seeks to challenge, the facts stated in a document which purports … to have been issued by an authority of the country in which the marriage was solemnized, or the validity in that country of the marriage recorded in that document, of proving either that the relevant authority was not a ‘competent’ one, or that the marriage so recorded was not a valid marriage under the law of that country.’[5]

[5] Teves & Campomayor (supra) at 81,735.

43Notably, in Teves & Campomayor (supra) Lindenmeyer J expressed that even if he was wrong in concluding that Part VA of the Marriage Act applies to determine whether the marriage is invalid, he may rely on an alternative basis for finding that the marriage was invalid through the application of common law rules of Private International Law, which the Court is able to do under s 42(2) of the Family Law Act. He stated at 81,736 that:

“…whether the question of essential validity of this marriage is governed by the provisions of Part VA of the Marriage Act…or by the common law rules of private international law, the ground of invalidity relied upon by the wife is available to her to found her application for a decree of nullity under s 51 of the Family Law Act.”

44The husband has not produced the marriage certificate between the wife and Mr R. Had he done so, he could have relied on s 88G(1). I do not have that in this case. The Marriage Act does not say that this is the only evidence the Court may rely upon.

45In JL & PTL [2006] FamCA 445, the Court was dealing with an application to declare a marriage valid in circumstances where there was no marriage certificate. The Court stated the onus was on the applicant to establish the marriage occurred, on the balance of probabilities. The Court also noted that whilst a marriage certificate would be the best evidence to prove this, the Court can look to other evidence to satisfy the civil standard.

46For example, the Court may look to documentary evidence. In the recent decision of Pereira & Gangumi [2019] FamCA 121, Gill J considered the use of the Evidence Act1995 (Cth) in relation to the admission of documentary evidence, and in particular the admission of a letter from the Department of Immigration and Border Control, in support of finding that there had been a valid first marriage.

Discussion

47The husband’s unchallenged evidence is that he was unaware the wife was previously married to Mr R until advised by the Department.

48I have in evidence correspondence from the Department of Border Protection and Immigration dated 26 September 2013. The Department had evidence from the wife in response to their request. In their decision of record dated 12 March 2014 in which the wife’s application was refused, the Department at page 23, set out at length the material upon which they relied in reaching their decision. Amongst those documents, was the original marriage certificate between the wife and Mr R.

49The correspondence from the Department is caught by the hearsay rule. There is an exception under s 79C(2A) of the Evidence Act 1906 (WA). I am prepared to proceed on the basis that the document is a business record and the representations made therein are provided by people who might have had or could reasonably be asserted to have knowledge of the asserted facts.

50Notwithstanding the absence of the marriage certificate, I am satisfied at the time the husband and the wife were married, she was legally married to Mr R on the basis that:

•Is consistent with the information provided to the Department of Immigration and Border Protection from the National Statistics Office in the Philippines, which confirms that the wife and Mr R were married [in] 1996 in City C.[6]

•The wife confirmed her marriage to Mr R in her communications with the Department. She did not suggest that had ever sought or obtained a divorce or nullity of their marriage.[7]

•The Department had the original marriage certificate of the wife and Mr R.

•The Department found the wife’s application for a spousal visa contained false or misleading information by failing to disclose her marriage to Mr R.[8]

[6] Refer to annexure 2 of the husband’s affidavit filed 30 November 2018.

[7] Refer to annexure 3 of the husband’s affidavit filed 30 November 2018.

[8] Refer to annexure 3 of the husband’s affidavit filed 30 November 2018.

51Accordingly I am satisfied that at the time of the marriage ceremony to the husband, the wife was legally married to Mr R and thus, the marriage between the husband and the wife was not valid and therefore void. A decree of nullity will ensue.

ORDERS

1. That it be declared that the marriage between the applicant [Mr Oatley] and the respondent [Ms Oatley] conducted on 10 May 2012 in [City A, Philippines] is a nullity.

2. The Application be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

CD
Secretary

8 April 2019