Croker and Melati

[2014] FamCA 365

FAMILY COURT OF AUSTRALIA

CROKER & MELATI [2014] FamCA 365

FAMILY LAW – NULLITY – Where the applicant alleges that at the time of the marriage the respondent was lawfully married to another person – Where the applicant has not filed sufficient evidence to enable the Court to make the necessary findings – Application dismissed.

Axon v Axon (1937) 59 CLR 395
Colgate-Palmolive Co & Another v Cussons Pty Ltd (1993) 118 ALR 248
Lindon v Commonwealth (No 2) (1996) 136 ALR 251

Family Law Act 1975 (Cth) – s 51; s 117(1); s 117(2); s 117(2A)
Marriage Act 1961 (Cth) – s 23B(1)

APPLICANT:

RESPONDENT:

Mr Croker

Ms Melati

DATE DELIVERED: 9 May 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Johnston J

HEARING DATE: 9 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jordan

SOLICITOR FOR THE APPLICANT: Family Law Solutions

COUNSEL FOR THE RESPONDENT: Mr Foster

SOLICITOR FOR THE RESPONDENT: Northern Rivers Lawyers

Orders

1. The Applicant’s Initiating Application filed on 10 October 2012 be dismissed

2. The Court certifies that it was reasonable for the parties to engage Counsel for these proceedings.

3. Within thirty (30) days of the date hereof the applicant pay the amount of $5,000 to the respondent’s solicitors being the Court’s assessment of the respondent’s appropriate costs.

NOTATION:

A.In the event that either party files an Application for Divorce, this Court has the view that any filing fee on such Application should be waived.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Croker & Melati has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9159 of 2012

Mr Croker

Applicant

And

Ms Melati

Respondent

REASONS FOR JUDGMENT

1. The applicant, Mr Croker, is seeking a decree of nullity of the marriage solemnised between him and Ms Melati at Town B on … April 2007.  The applicant was born in Australia and is ordinarily resident in Australia. 

2. The respondent is Ms Melati who seeks an order to the effect that the application be dismissed. 

3. It is submitted by the applicant that the marriage is void on the basis that, at the time that the marriage was solemnised, the respondent was lawfully married to another person. 

4. Section 51 of the Family Law Act 1975 (Cth) (“the Act”) provides as follows:

   An application under this Act for a decree of nullity of marriage shall be based on the ground that the marriage is void.

5. The ground relied upon by the applicant is amongst the grounds on which marriages are described as being void in section 23B(1) of the Marriage Act 1961 (Cth). Subsection 23B(1) provides as follows:

   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; 

6. The only evidence relied on by the applicant was contained in his affidavit sworn on 7 September 2012, filed with his Initiating Application and an affidavit by him sworn on 17 April 2013.  The background to these proceedings was set out in that material.  It is as follows.

7. The applicant was born in Tasmania in 1945.  The respondent was born in Indonesia, in 1973.  They met in Hong Kong in 2006, where the applicant was resident at the time and they subsequently commenced a relationship.  Later they decided to marry. 

8. On 28 October 2006, the respondent arrived in Australia on a visa and the applicant was her sponsor.  As indicated above, she and the applicant married at Town B in April 2007. 

9. The applicant believed the respondent was single and not subject to any impediment to marry.  The parties lived at Town C. 

10. In October 2010, the applicant saw some emails on his computer between the respondent and a Mr P, in which the respondent and Mr P referred to one another as “husband and wife”, and in which the respondent referred to Mr P as “my other husband”.  I shall refer to this email material again below.

11. The applicant formed the view that the marriage between him and the respondent was finished and they subsequently agreed to separate.  Shortly thereafter, the respondent left the former matrimonial home and commenced to live elsewhere. 

12. The applicant engaged a private investigator in Indonesia to visit a particular Religious Affairs Office in Indonesia, but there is no further admissible evidence about this matter before the Court.

13. It is submitted on behalf of the applicant that the Court should interpret the references to “husband and wife” in the emails annexed to the applicant’s affidavit literally, that is, as an admission by the respondent against her interests, that, in fact, she was married to Mr P.  It was submitted that if the Court was to do this, then the onus on the applicant to establish that at the time he married the respondent in Australia, the respondent was lawfully married to Mr P, would in fact shift to the respondent to establish that she was not lawfully married to the applicant at the relevant time.

14. In support of this submission, learned counsel for the applicant referred to the High Court decision of Axonv Axon (1937) 59 CLR 395. That decision concerned an appeal in respect of a maintenance application, brought by a woman under the South Australian Maintenance Act 1926.  The wife in those proceedings needed to establish that she was the wife of the defendant in order to have a proper claim.  She admitted in cross‑examination that she had been married to another man many years earlier.  She had taken maintenance proceedings against him, and had received an order against him for maintenance. 

15. I am far from sure that the case is authority for the proposition which was submitted by learned counsel for the applicant, in respect of shifting of the onus of proof.  In any event, in my view, it is unnecessary to express a view on this, because the facts in Axon were entirely different from the facts in the present case.  The admission in Axon was that the wife had been validly married to her first husband.  In fact, she had even received a maintenance order which implied a finding that she had been lawfully married to her earlier husband.

16. In the present case, there is no such admission before this Court.  The relevant evidence in the emails includes the following.

17. The first is the evidence in the email by Mr P which was sent at 1.07 pm on 26 September 2010 to the respondent, the relevant parts of which are as follows:

    Sayang,

    I really hope you don’t forget me when I can’t write you more these days.

    And:

On the last 3 weekends we were invited to different marriages.  All my friends asked me when I will marry.  Hi hi, never never again sayang.  You know why?  Because you are my wife forever.  I gave you my promisse, [sic] remember?  That’s what I will follow till end of life.  Keep this in mind.

Miss you, still need you.  And I know that we will see us eath other again.  Stay patience [sic].

Your Sayang.

1. That email was replied to by the respondent at 8.30 pm on the same day.  It includes the following, and again, I only make reference to relevant excerpts:

   Hi, honey. 

   … im so happy now to hear from you.

   …

   You make my heart biting faster when i read some part of the last paragraph in your email.

   Im your wife forever, keep that in our hear sayang, and you are my husband forever.  We still wife and husband forever.  Hope we can be together again one day… who know the future?

   Sayang, when i can see you again on skype?  i have plenty of time on october because my other husband away to Thailand for a month and im alone at home so we can be naughty.

   If you dont mind can you give me your mobile number? but is up to you honey if you dont like im okay, i understand.

   Till then from now I miss you sayang…i love you.

   Your wife Sayang.

2. Does what is contained in the respondent’s email, in the context of replying to the email by Mr P, amount to an admission of a lawful marriage? 

3. In my view, it does not.  In my experience, it is not unusual for persons in, or who have been in, an intimate personal relationship to refer to one another as husband and wife. 

4. It is submitted on behalf of the respondent that the applicant’s application should be dismissed without the Court proceeding to hear any evidence from the respondent.  This was on the basis that the evidence in the applicant’s case, that is, the evidence contained in his affidavits which survived objections, including the emails, does not go anywhere near establishing that at the time the applicant and respondent married in 2007, the respondent was lawfully married to another person.

5. It is submitted that the applicant cannot improve his case. 

6. On the other hand, it is submitted on behalf of the applicant that the Court should respect the caution about courts granting applications to dismiss a case summarily, as referred to by the High Court in Lindon v Commonwealth (No 2) (1996) 136 ALR 251.

7. In my view, the applicant’s case suffers from the deficiency that there has not been filed in support of the application sufficient evidence to enable the Court to make the necessary finding that on in April 2007 when the respondent married the applicant, she was lawfully married to another person.

8. In my view, it is clear at this point, on the evidence in the applicant’s case that the application cannot succeed.  Accordingly, I propose to dismiss the application.

Costs

1. In relation to the costs application, the usual position is as set out pursuant to s 117(1) of the Act that each party to proceedings shall pay his or her own costs. This is subject to a power given by s 117(2) of the Act for the Court to make a costs order if the Court considers it just to do so upon a consideration of the relevant matters in subsection (2A) of the Act. The first of those considerations is the financial circumstances of each of the parties.

2. It is said by learned counsel on behalf of the respondent that she has no property, that her income is the Newstart Allowance and that she is a full-time student.  It is said that she operates a retail outlet with a friend in respect of which the revenue produced from the retail outlet is consumed by the rent which is apparently paid for the retail outlet location. 

3. On the other hand, it is conceded on behalf of the applicant that his financial circumstances are such that he has the capacity to meet a proper order for costs by the Court. 

4. The next relevant matter is s 117(2A)(c) which provides:

   (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters. 

5. I shall come back to that matter because it is a highly relevant matter, in my view, to the determination of the contest about costs. 

6. The application for costs is put partly on the basis of conduct, but most significantly on the basis of s 117(2A)(e) which provides:

   (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings

7. It is clear that the applicant has been wholly unsuccessful in the proceedings. 

8. I understand it is the case that there were no offers made in writing. 

9. The respondent seeks a costs order on an indemnity basis.  The basis on which that submission was made is not entirely clear to me.  It seems to be on the basis that the application was wholly unsuccessful because of the deficiency of the evidence in support of the applicant’s case.

10. In my view, this is not a matter where the Court would make an indemnity costs order.  Learned counsel for the applicant took me carefully through relevant matters set out in the well-known decision of Colgate-Palmolive Co & Another v Cussons Pty Ltd (1993) 118 ALR 248. I accept his submission that the tests set out in that case are not met.

11. It is not the position that the proceedings were commenced in circumstances where a person in the position of the applicant being properly advised should have known that there was no prospect of success.  The relevant material in respect of that flowed from the emails and became stronger when the respondent’s material and that of Mr P were filed.  In addition to the references in the email to which I referred in my reasons for judgment in the substantive proceedings, there were concessions and admissions made by the respondent and also by Mr P that they went through a form of religious marriage in Indonesia on a particular date.

12. It is not a case where there are any allegations of fraud, nor is it a case where there is any evidence of misconduct causing the loss of time to the Court.  It is not a case involving allegations which never should have been made, nor a case involving any other of the matters set out in Colgate-Palmolive which would tend to support the making of an indemnity costs order.  In my view, there are not the exceptional circumstances about this matter which would justify the Court making an indemnity costs order. 

13. It is said on behalf of the respondent that there were many directions made in the proceedings.  I was taken in detail to numerous of those relevant directions, including directions for filing material not only by the parties in the proceedings but also by any experts which one or other of them wanted.  At one point there was an order made for filing an application for an order for filing material by a single expert. 

14. In my view, this case was always going to involve expert evidence.  It seems to me in fairness to the applicant, once he became aware of the emails and the reference to the terms that the respondent and Mr P used in addressing one another, not only the references to husband and wife but other terms of endearment, it was reasonable, in my view, for the applicant to endeavour to pursue evidence which might be able to be made available in order to make his case to the Court.  He endeavoured to do that.  But clearly this was a difficult exercise.  In the end he failed in that task. 

15. But in those circumstances and up to a point close to the trial date the applicant’s conduct was reasonable and there would be no basis from departing from the usual rule, that is, that each party pay their own costs.

16. However, a point inevitably had to arise where the applicant had to make an assessment of his prospects of success.  It must have become clear to the applicant and his legal representatives prior to the date of the trial that there was not sufficient evidence available to enable the Court to make the necessary findings.  In my view, from that point different considerations apply.  The respondent was brought here today at very considerable cost to respond to a case in respect of which there was not appropriate evidence to support.

17. Yet the applicant continued to pursue his action against the respondent, notwithstanding the absence of that evidence.  In my view, the respondent could have been saved her costs of today by simple communication between the applicant’s solicitor and the respondent’s solicitor with some appropriate orders having been presented at very little cost.

18. In those circumstances and where the applicant was wholly unsuccessful in the proceedings, in my view, it is just that he be required to pay the respondent’s costs of today.  Those costs are said to be in an amount of $5000.  I propose to make an order in this amount.

I certify that the preceding forty-three (43) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 9 May 2014.

Associate:     

Date:              5 June 2014