Darnith and Harshani - [2011] FamCA 1007

FAMILY COURT OF AUSTRALIA

DARNITH & HARSHANI

[2011] FamCA 1007

FAMILY LAW – Nullity – Applicant marries respondent when respondent has a decree nisi which has not been made absolute. Marriage is void.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Amendment Act (2005)
Marriage Act 1961 (Cth)
Matrimonial Causes Act 1959 (Cth)

Armstrong and Armstrong [1962] VR 452
Psaltis and Schultz [1948] HCA 31; (1948) 76 CLR 547

APPLICANT:

Ms Darnith

RESPONDENT:

Mr Harshani

FILE NUMBER:

MLC

1556

2010

DATE DELIVERED:

15 December 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

30 November, 1 & 12 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Durai

SOLICITOR FOR THE APPLICANT:

Ravi James

THE RESPONDENT:

In Person

Orders

Pursuant to section 51 of the Family Law Act 1975 (Cth), it is declared that the marriage solemnized on …2006, Suburb C in the State of Victoria between the applicant shown in the marriage certificate as Ms Darnith and the respondent shown in the marriage certificate as Mr Harshani is void on the ground that as at that date, the respondent was not eligible to marry.
The application of the wife filed 30 June 2011 and the response of the husband filed 11 July 2011 are otherwise dismissed save as to issues of costs.
That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 10 January 2012 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 24 January 2012 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.

IT IS NOTED that publication of this judgment under the pseudonym Darnith & Harshani is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1556 of 2010

Ms Darnith

Applicant

And

Mr Harshani

Respondent

REASONS FOR JUDGMENT

Ms Darnith (“the wife”) married Mr Harshani (“the husband”) in 2006 in a civil marriage ceremony in Australia. The wife now seeks a decree of nullity on the ground that the marriage was void.
The proceedings began on 30 November 2011 with both seeking the same order, albeit on different grounds. The proceedings were hotly contested as to the facts. On 5 December 2011, the husband discontinued his application for orders to annul the marriage but he continued with the rest of his application.
Leaving aside ancillary orders sought by both parties, the two questions to be answered about the wife’s nullity application were:
(a)had a decree absolute been granted by a Country B court entitling the husband to remarry in 2006?
(b)If the husband had been granted a decree nisi…

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 Darnith and Harshani

Details

AGLC: Darnith and Harshani [2011] FamCA 1007
Case: [2011] FamCA 1007
Decision Date

CaseChat Overview and Summary

In *Darnith & Harshani* [2011] FamCA 1007, the Family Court of Australia considered an application by Ms Darnith for a decree of nullity concerning her marriage to Mr Harshani, solemnised in 2006. The wife sought to have the marriage declared void on the ground that the husband was not eligible to marry at the time of the ceremony. The husband initially sought similar orders but later discontinued his application for annulment, though he continued with other aspects of his case. The proceedings were heard by Cronin J in Melbourne.

The central legal issues before the Court were twofold: firstly, whether a decree absolute had been granted by a court in Country B, which would have permitted the husband to remarry in 2006; and secondly, if only a decree nisi had been granted, whether the husband was eligible to marry under Australian law during the period between the decree nisi and the decree absolute. The Court was required to consider the legal status of a person in relation to remarriage in Australia when their previous marriage had not yet been dissolved by a decree absolute.

Cronin J found that a decree absolute had not been granted in the husband's previous marriage. Applying Australian law, which was also the law at the relevant time in 2006, the Court held that a person who has not obtained a decree absolute is not eligible to remarry. Consequently, the Court found that the ground alleged by the wife was proven and declared the marriage void. The Court also noted that the husband's conduct throughout the proceedings was characterised by a lack of objectivity and numerous unsubstantiated accusations, which distracted from the critical evidentiary issues.

The Court ordered that the marriage solemnised in 2006 between Ms Darnith and Mr Harshani be declared void on the ground that the respondent was not eligible to marry at that date. The wife's application for nullity was otherwise dismissed, as was the husband's remaining application, save for issues of costs. The parties were given a specified period to make written submissions regarding any applications for costs.

Orders