GARNER & LEE - [2011] FamCA 1000

FAMILY COURT OF AUSTRALIA

GARNER & LEE

[2011] FamCA 1000

FAMILY LAW – Marriage annulment: granted

Evidence Act (1995) (Cth)
Family Law Act 1975 (Cth)
Marriage Act 1961 (Cth)

APPLICANT:

Mr Garner

RESPONDENT:

Ms Lee

FILE NUMBER:

MLC

8496

2011

DATE DELIVERED:

28 November 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

28 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr P Davis

SOLICITOR FOR THE APPLICANT:

Barbayannis Lawyers

THE RESPONDENT:

No appearance

Orders

That the applicant have leave to proceed forthwith in the absence of the respondent.
That the marriage celebrated at Suburb B on … 2011 is declared to be void.
That all outstanding applications are otherwise dismissed.
That a copy of the reasons for judgment this day, the affidavit of the applicant and his daughter together with a copy of this order be referred to the Department of Immigration and Citizenship by the Registry Manager of the Family Court of Australia, Melbourne Registry for consideration as to whether there has been a breach of any Australian law.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8496 of 2011

Mr Garner

Applicant

And

Ms Lee

Respondent

REASONS FOR JUDGMENT

This is an application filed on 20 September 2011 by Mr Garner seeking an annulment of a marriage that took place in 2011 at Suburb B. The respondent is Ms Lee, who is shown on the marriage certificate as the wife. The application was served personally on Ms Lee on 17 October 2011, and the person who served the documents requested that Ms Lee sign and acknowledge the service. The acknowledgement of service which has been filed on 21 November has a signature on it which bears a remarkable resemblance to the signature on the certificate of the marriage between the parties that has been filed by the applicant.
Having been served with the application, there has been no documents filed by the respondent. She was called this morning and has not appeared. The evidence filed by the applicant indicates that she is aware of the proceedings but does not want to participate.
The application seeks an order that the marriage is void because the applicant did not understand the identity of the respondent or the nature of the ceremony performed.
The facts in this case are rather brief. Mr Garner has given evidence this morning with the assistance of a Country C interpreter. The Country C language is his natural language, although he acknowledged that he spoke with the respondent in the English language. The applicant said that he met the respondent at a coffee shop where she was working in December last year. This was the coffee shop that his daughter was purchasing. There was daily contact between the applicant and the respondent, and he said that he came to know her quite…

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 GARNER & LEE

Details

AGLC: GARNER & LEE [2011] FamCA 1000
Case: [2011] FamCA 1000
Decision Date: 28 November 2011

CaseChat Overview and Summary

In *Garner & Lee*, heard before Cronin J of the Family Court of Australia, the applicant sought to have a marriage declared void. The respondent was absent from the proceedings.

The primary legal issue before the court was whether the marriage celebrated between the parties was void. The court also considered the disposition of outstanding applications and the potential referral of the matter to the Department of Immigration and Citizenship.

Cronin J reasoned that the marriage was void, implying a finding that the legal requirements for a valid marriage had not been met. The court dismissed all other outstanding applications before it. In addition, the Registry Manager was directed to refer the reasons for judgment, the applicant's affidavit, and his daughter's affidavit to the Department of Immigration and Citizenship for an assessment of potential breaches of Australian law.

Orders

Orders of the court

That the applicant have leave to proceed forthwith in the absence of the respondent.

That the marriage celebrated at Suburb B on … 2011 is declared to be void.

That all outstanding applications are otherwise dismissed.

That a copy of the reasons for judgment this day, the affidavit of the applicant and his daughter together with a copy of this order be referred to the Department of Immigration and Citizenship by the Registry Manager of the Family Court of Australia, Melbourne Registry for consideration as to whether there has been a breach of any Australian law.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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