Diem and Ngoc

[2018] FamCA 752

FAMILY COURT OF AUSTRALIA

DIEM & NGOC [2018] FamCA 752

FAMILY LAW – NULLITY – Application for declaration – Where at the time of the marriage the applicant was married to another person – Declaration of nullity granted. 

Family Law Act 1975 (Cth) s 51
Marriage Act 1961 (Cth) s 23B(1)

APPLICANT: Mr Diem

RESPONDENT: Ms Ngoc

FILE NUMBER: PAC 2362 of 2018

DATE DELIVERED: 21 September 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 7 September 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Challenge Legal

RESPONDENT – SELF-REPRESENTED LITIGANT: Ms Ngoc

Orders

1. That it be declared that the marriage between the applicant Mr Diem and the respondent Ms Ngoc conducted at Suburb B, New South Wales on … 2014 is a nullity.

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 Diem & Ngoc 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 PARRAMATTA

FILE NUMBER: PAC 2363 of 2018

Mr Diem

Applicant

And

Ms Ngoc

Respondent

REASONS FOR JUDGMENT

1. The applicant seeks a declaration that the marriage ceremony entered into between him and the respondent in Suburb B New South Wales in 2014 is void and for a decree of nullity to be granted.

2. On 10 July 2018 the matter came before a Registrar who listed the matter for judicial case management and noted the following:

   ·[Mr Diem] (the applicant husband in this application) and [Ms B] believed that they had been divorced in [Country C], and each have subsequently remarried. This is the husband’s application for nullity of the marriage to his new wife, [Ms Ngoc].

   ·The husband and his first wife have filed an Application for Divorce which is returnable before the Sydney Registry of the Federal Circuit Court on 7 August 2018.

   ·I am informed that the Respondent to this Application consents to the nullity.  

3. The respondent confirmed that she also seeks that the marriage be declared void in her Response filed 13 August 2018.

4. On 7 September 2018 the matter came before this Court and judgment was reserved in respect of the application for a declaration of nullity. 

background

1. The applicant married Ms B (“the first wife”) in Country C in 2008.

2. The parties separated in December 2013. Both sought a divorce and the applicant’s first wife’s father approached Mr D, a private consultant, (“Mr D”) to obtain a divorce in Country C.

3. In May 2014 the applicant and his first wife paid Mr D $2,800.00 and he provided them with a “Certificate of Divorce”.

4. Subsequently, the applicant came to Australia and married the respondent in 2014.

5. The applicant then made application to the Department of Home Affairs for a partner visa. That Department conducted an investigation and informed the applicant that there was no record of him making an application for divorce in Country C and the Judge who had signed the certificate of divorce had not been working for the court at the time the document was signed. Accordingly, the Department concluded that the certificate of divorce was fabricated.

6. The applicant contacted his first wife’s family in Country C and deposes to the matter of the “divorce” presently being under investigation in Country C.

7. On 14 May 2018 the applicant and his first wife made a joint application for a divorce in the Sydney Registry of the Federal Circuit Court. Those divorce proceedings are presently on foot.

8. It is the applicant’s intention to remarry the respondent once the subject marriage of these proceedings is declared a nullity and his divorce is finalised.   

applicable law

1. Pursuant to s 51 of the Family Law Act 1975 (Cth) a decree of nullity may be granted on the ground that the marriage is void.

2. Section 23B(1) of the Marriage Act 1961 (Cth) provides that, inter-alia, a marriage is void where “either of the parties is, at the time of the marriage, lawfully married to some other person”.

3. The applicant annexes to his affidavit filed 28 May 2018 a copy of the marriage certificate for his first marriage in Country C and a translation of that document.

4. Accordingly, the Court is satisfied that at the time the applicant participated in the marriage ceremony with the respondent in 2014 he was lawfully married to another person.

5. A declaration will be made that the marriage between the applicant and the respondent conducted at Suburb B in 2014 is a nullity.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 21 September 2018.

Legal Associate:

Date:  21 September 2018