GOMIS & DANTAS - [2020] FamCA 45

FAMILY COURT OF AUSTRALIA

GOMIS & DANTAS

[2020] FamCA 45

FAMILY LAW – NULLITY – Where a declaration of nullity is sought – Where the parties were validly married in Country D – Where the parties underwent a second marriage ceremony in Australia – Consideration is given to circumstances in which a marriage is found it be void – Where it is found that the Australian marriage is void – Declaration of nullity made.

Family Law Act 1975 (Cth) s 51
Marriage Act 1961 (Cth) s 23, 23B, 88C, 88D, 88G, 113

Duryodhana & Chawla [2018] FamCA 1089
Zua v Huang [2015] FamCA 873

APPLICANT:

Ms Gomis

RESPONDENT:

Mr Dantas

FILE NUMBER:

PAC

558

2019

DATE DELIVERED:

31 January 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

2 December 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Rysiok

RESPONDENT – LITIGANT IN PERSON

Orders

The marriage between the applicant and the respondent conducted at Suburb B, Victoria in August 2017 be declared void and a nullity.
All outstanding applications and cross-applications are dismissed.

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 Gomis & Dantas 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 558 of 2019

Ms Gomis

Applicant

And

Mr Dantas

Respondent

REASONS FOR JUDGMENT

Introduction & Background

This matter concerns an application for a decree of nullity of the marriage between Ms Gomis (“the wife”) and Mr Dantas (“the husband”) solemnised in 2017.
In 2013 the wife (who appears to have been then living in Australia) and the husband, a resident of Country D were married in Country D in a civil ceremony (“the Country D marriage”). The parties married to facilitate the husband residing with the wife in Australia.
In 2016, the husband was granted a Prospective Marriage Visa and in July 2017 moved to Australia where he began living with the wife.
The parties underwent a second marriage ceremony in August 2017 in a suburb of Melbourne (“the Australian marriage”). The wife deposes that she and the husband underwent this second marriage ceremony on the advice of an immigration lawyer in Australia that a marriage ceremony in Australia was required for immigration purposes.
The parties separated in November 2017.
On 7 February 2019, the wife filed an Application for Divorce in the Federal Circuit Court in relation to the Australian marriage (“the initial divorce application”).
The husband filed a Response to Divorce where he stated that the parties were married twice…

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 GOMIS & DANTAS

Details

AGLC: GOMIS & DANTAS [2020] FamCA 45
Case: [2020] FamCA 45
Decision Date: 31 January 2020

CaseChat Overview and Summary

In *Gomis & Dantas*, the applicant sought a declaration of nullity concerning a marriage ceremony that took place in Australia. The parties had previously been validly married in Country D. The dispute centred on the validity of the subsequent Australian marriage ceremony.

The central legal issue before Hannam J was whether the Australian marriage ceremony was void, thereby entitling the applicant to a declaration of nullity. This required the court to consider the circumstances under which a marriage can be found to be void in Australian law, particularly in light of a pre-existing valid marriage.

Hannam J found that the Australian marriage was void. The reasoning applied by the court, though not detailed in the provided text, led to the conclusion that the second ceremony did not create a valid legal union. Consequently, the court made orders declaring the marriage conducted in Victoria in August 2017 to be void and a nullity, and dismissed all outstanding applications and cross-applications.

Orders

Orders of the court

The marriage between the applicant and the respondent conducted at Suburb B, Victoria in August 2017 be declared void and a nullity.

All outstanding applications and cross-applications are dismissed.

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

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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