FERN & FERN

[2020] FamCA 874

FAMILY COURT OF AUSTRALIA

FERN & FERN [2020] FamCA 874

FAMILY LAW – PRACTICE AND PROCEDURE – Application for adjournment – Where the Applicant seeks an adjournment to allow additional time to gather further evidence – Where the Respondent did not respond to the request in any meaningful way – Where the adjournment is granted in Chambers

Family Law Act 1975 (Cth)

APPLICANT: Mr Fern

RESPONDENT: Ms Fern

FILE NUMBER: BRC 9504 of 2014

DATE DELIVERED: 16 October 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: On the papers

REPRESENTATION

THE APPLICANT: No appearances required

THE RESPONDENT: No appearances required

Orders

1. These orders are made in chambers on the papers and on the application of the Applicant husband for a further adjournment of the part-heard proceedings.

2. The further hearing date set for the matter on 26 October 2020 is vacated.

3. The further hearing of the part-heard Application is adjourned to 10:00 am on Monday, 1 February 2021.

4. The personal appearances of the Applicant Husband and the Respondent Wife are required at the Court at the further hearing of the matter.

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 Fern & Fern 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 BRISBANE

FILE NUMBER: BRC 9504 of 2014

Mr Fern

Applicant

And

Ms Fern

Respondent

REASONS FOR JUDGMENT

1. On 24 August this year, I heard an application for a declaration of nullity in respect to a marriage between the Applicant husband and Respondent wife in this matter. The Applicant appeared and was represented by a solicitor. The Respondent appeared without legal representation. She opposed the application.

2. The Respondent, during the course of that appearance, made many peculiar and nonsensical statements. In fact, I considered she was not treating the proceedings seriously at all and was simply using her appearance as some form of platform to make the most ridiculous allegations against the Applicant husband and his legal representatives. To what end, I do not even begin to speculate at this point in time.

3. Part of the Applicant’s case in support of the declaration is his proposition that the Respondent wife was already validly married to another man at the time of her marriage to him. If that is determined to be correct, then it follows that he will be successful in his application and will most likely obtain the declaration he seeks.

4. After considering the evidence that was presented and relied upon by the Applicant, I indicated that the prima facie position favoured a view that the Respondent wife had been married before and had never obtained a dissolution of that marriage. She was, it appeared, previously married in the Country B where she lived before meeting the Applicant who is an Australian and travelling to live with him in this country before marrying him here. Country B law does not provide for dissolution of marriage, though annulments may be obtained in limited circumstances. There is no evidence that the Respondent’s previous marriage had ever been annulled.

5. There was not enough evidence to satisfy me, on the balance of probabilities, that the Respondent’s former husband was still alive at the time she married the Applicant. That is a critical fact as, of course, death of a spouse lawfully ends a marriage.

6. I gave the Applicant the choice of pressing on with the determination of the application on the evidence before the Court or to adjourn the matter to a later date with a view to putting further evidence before the Court. The Applicant took the latter option.

7. I adjourned the Application, part-heard, for further hearing on 26 October giving both parties the opportunity to put more evidence before the Court in the meantime.

8. On 16 October, my Associate received email communication from the Applicant’s solicitors copied to the Respondent. In that email, they asked for a further adjournment on an administrative basis, to allow the Applicant some more time to gather more evidence from overseas that is taking longer than expected to obtain. They had asked the Respondent to indicate her consent to the adjournment application. They copied to my Associate the relevant email exchange with her. The Respondent did not even answer the request in any meaningful way. She just asserted that the Applicant and her former husband (who the Applicant is now trying to prove was still alive at the time of the marriage sought to be annulled) are “playing a serious corruption business deal together with the Country D investors”. She told the solicitors that she would be taking them all to Court for corruption.

9. With respect to the Respondent, that is just more of the nonsense she was talking when she was at Court on the first day of the hearing of the matter.

10. In these circumstances, I am prepared to grant the requested adjournment and am prepared to do so in my chambers. I am particularly moved by the need to keep the Applicant’s legal costs to a minimum if at all possible. The Respondent is not incurring any legal costs of her own. I will not require an appearance by either party on 26 October and will adjourn the matter for further hearing at 10 am on Monday, 1 February 2021. It cannot be adjourned to 6 December as requested by the Applicant’s solicitors as I will be on long leave for the months of December and January.

11. I will make the email correspondence I have referred to in these reasons exhibits in the proceedings.

12. I make the Orders set out at the commencement of these reasons.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 16 October 2020.

Associate: 

Date:  16 October 2020