Fishburn & Taufa

[2021] FamCA 645

FAMILY COURT OF AUSTRALIA

Fishburn & Taufa [2021] FamCA 645   

File number(s):

CSC 408 of 2020

Judgment of:

BAUMANN J

Date of judgment:

18 August 2021

Catchwords:

FAMILY LAW – NULLITY – Where the Applicant says the marriage was void – Where at the time of the marriage, the Respondent was lawfully married to another person –Where the Court is satisfied the marriage is void – Ordered that a Decree of Nullity issue.  

Legislation:

Family Law Act 1975 (Cth) s 51

Marriage Act 1961 (Cth) s 23(1)(a)

Number of paragraphs:

5

Date of hearing:

18 August 2021

For the Applicant:

Litigant in person

For the Respondent:

No appearance

ORDERS

CSC 408 of 2020

BETWEEN:

MS FISHBURN

Applicant

AND:

MR TAUFA

Respondent

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

THE COURT ORDERS ON A FINAL BASIS:

1.That a Decree of Nullity is made in respect of the marriage solemnised on 16 June 2017 between the Applicant, MS FISHBURN and the Respondent, MR TAUFA.

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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fishburn & Taufa 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

BAUMANN J

1. By s 23(1)(a) of the Marriage Act 1961 (Cth), a marriage is void where:

   23(1)(a)either of the parties was, at the time of the marriage, lawfully married to some other person;…

2. The Applicant, Ms Fishburn, says in affidavits filed in the Court, relevantly, that:

   (a)In 2017 at the courthouse in C Town, she undertook a ceremony of marriage and married a person named Mr Taufa. Mr Taufa is a native of Country B;

   (b)The marriage certificate annexed to the affidavit of the Applicant filed 4 June 2020, shows that the bridegroom claimed he had “never validly married” at that time. Shortly after the marriage – the parties, having cohabitated since 2017 –  the Respondent returned to Country B, where he has continued to live;

   (c)After the Respondent returned to Country B on 19 June 2017, there was a period where the Applicant went to Country B for approximately two weeks for a holiday to spend time with the person she regarded as her husband. It seems, however, that the Applicant believes – this is evidence given from the bar table today – that soon after she returned to Australia, he commenced a relationship with another woman. Certainly by 12 March 2018, she became aware that he had been, as she describes it, “cheating” on her, and was also informed that he was still married;

   (d)Annexed to the Applicant’s affidavit filed 4 June 2020, is a copy of a marriage certificate from the Office of the Registrar General, Country B, which reveals that the Respondent went through a ceremony of marriage according to the D Church in 2015. In that marriage certificate he is described as “divorced” and there is no evidence that the marriage in 2015 has been dissolved on a divorce granted; and

   (e)The Applicant commenced proceedings for a Decree of Nullity on 4 June 2020, and since that time, a number of appearances before a Registrar of this Court have been held which have resulted in directions being made, seeking to bring this application to the attention of the Respondent. There is no evidence the Respondent has ever returned to Australia.

3. I am satisfied on the evidence produced that the Applicant has taken every reasonable step to bring her application to the attention of the Respondent.

4. In the circumstances set out above, I am satisfied that the application enlivens the Court’s jurisdiction under s 51 of the Family Law Act 1975 (Cth) and that it is more likely than not, that the Respondent is aware of the Application and has chosen not to respond for fairly obvious reasons.

5. In all of the circumstances, I am satisfied that the marriage is void and that a Decree of Nullity should issue.

I certify that the preceding five (5) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann.

Associate:  

Dated:       13 August 2021