Fern & Fern (No. 2)

[2021] FamCA 643

FAMILY COURT OF AUSTRALIA

Fern & Fern (No. 2) [2021] FamCA 643

File number(s):

BRC 9504 of 2014

Judgment of:

HOWARD J

Date of judgment:

18 August 2021

Catchwords:

FAMILY LAW – NULLITY OF MARRIAGE – where the wife was lawfully married to another person at the time of the subject marriage – where there was (in any event) no real consent to the marriage – mistake as to the identity of the respondent wife at the time of the purported marriage due to her fraudulent actions – where the marriage was therefore void – decree of nullity granted.

Legislation:

Family Law Act 1975 (Cth) ss 51, 79

Marriage Act 1961 (Cth) s 23B

Cases cited:

Campani & Suyapto [2008] FamCA 1121
In the marriage of Osman & Mourrali (1989) 96 FLR 362
Moss & Moss [1897] P 263

Number of paragraphs:

32

Date of last submission/s:

18 August 2021

Date of hearing:

18 August 2021

Place:

Brisbane

Solicitor for the Applicant:

Turnbull Mylne Solicitors

There being no appearance by or on behalf of the Respondent.

ORDERS

BRC 9504 of 2014
BETWEEN:	MR FERN Applicant
AND:	MS FERN Respondent

ORDER MADE BY:	HOWARD J
DATE OF ORDER:	18 AUGUST 2021

THE COURT ORDERS ON A FINAL BASIS:

1.That the marriage solemnised at Brisbane in the State of Queensland in 2006 between the applicant, Mr Fern and the respondent Ms Fern (also known as Ms X) is declared to be void pursuant to section 23B(1)(a) and section 23B(1)(d)(i) and (ii) of the Marriage Act 1961 (Cth) and thus the said marriage is a nullity.

2.That the respondent pay the applicant’s costs fixed sum of $8,800.

Note:   The form of the order is subject to the entry in the Court’s records.

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).

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).

EX TEMPORE REASONS FOR JUDGMENT

A.         These reasons were delivered ex tempore on 18 August 2021 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court.

1. The applicant before the Court is Mr Fern. Mr Fern was born in 1958. By an Amended Initiating Application filed on 27 April 2020, the applicant seeks the following orders against the respondent. Firstly, a declaration that the marriage between the applicant and the respondent is void pursuant to section 23B(1)(a) of the Marriage Act 1961 (Cth). Furthermore, the applicant seeks a declaration that the marriage between the applicant and the respondent is void pursuant to section 23B(1)(d)(i) and (ii) of the Marriage Act 1961 (Cth). The applicant seeks a decree of nullity in…