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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CITATION : OATLEY and OATLEY

Details

AGLC: CITATION : OATLEY and OATLEY [2019] FCWA 105
Case: [2019] FCWA 105
Decision Date: 8 April 2019

CaseChat Overview and Summary

In the Family Court of Australia, Mr Oatley sought a declaration of nullity of his marriage to Ms Oatley, which had taken place in the Philippines on 10 May 2012. The court was asked to determine whether the marriage was valid or void, particularly considering that Ms Oatley was already married to another person at the time of the marriage to Mr Oatley. This unrepresented application was heard and determined by Justice [Name], who found the marriage to be void due to Ms Oatley’s pre-existing marital status.

The primary legal issue before the court was whether the marriage was valid or void ab initio, given the respondent’s prior marriage. The court had to consider the implications of Ms Oatley’s pre-existing marriage on the validity of the subsequent marriage to Mr Oatley. In addition, the court had to address the admissibility of documentary evidence pertaining to Ms Oatley’s prior marriage, considering the absence of a formal marriage certificate from the first marriage. The court assessed whether the business records exception to the hearsay rule could be invoked to admit evidence of the first marriage without a formal certificate.

Justice [Name] concluded that the marriage between Mr Oatley and Ms Oatley was void because Ms Oatley was already married to another person at the time of their union. The court accepted that the documentary evidence, despite the absence of a formal marriage certificate, was sufficient to establish the prior marriage. The court applied the business records exception to the hearsay rule, considering the documents presented, which indicated that Ms Oatley was married to another person at the time of the marriage to Mr Oatley. Consequently, the court granted the declaration of nullity and dismissed the application on the basis that the marriage was void.

The court ordered that the marriage between Mr Oatley and Ms Oatley conducted on 10 May 2012 in [City A, Philippines] be declared a nullity. Additionally, the application for the declaration of nullity was dismissed, reflecting the court's finding that the marriage was void ab initio.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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