HAMWI & OMAR

[2011] FamCA 202

FAMILY COURT OF AUSTRALIA

HAMWI & OMAR [2011] FamCA 202

FAMILY LAW - NULLITY - Allegation that party already lawfully married to another person

Family Law Act 1975 (Cth) – s 51
Marriage Act 1961 (Cth) – s 23B(1)

APPLICANT: Mr Hamwi

RESPONDENT: Ms Omar

FILE NUMBER: PAC 3561 of 2009

DATE DELIVERED: 8 February 2011

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Johnston J

HEARING DATE: 8 February 2011

REPRESENTATION

FOR THE APPLICANT: Mr Hamwi in person

SOLICITOR FOR THE RESPONDENT: Ms Rutkowska, Legal Aid NSW

Orders

1. That the Initiating Application filed on 23 September 2009 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3561 of 2009

Mr Hamwi

Applicant

And

Ms Omar

Respondent

REASONS FOR JUDGMENT

Introduction and Application

1. This is an application by Mr Hamwi for a decree of nullity of the marriage between himself and Ms Omar in September 2007 in Syria.  For convenience I shall refer to the parties as “the applicant” and “the respondent” respectively. 

2. The matter was listed for hearing on 5 November 2010.  On that occasion both parties asked for the hearing to be adjourned.  For this reason the hearing was adjourned to 8 February 2011.

3. The applicant was self-represented.  The respondent was represented by her solicitor Ms Rutkowska.  Both parties were assisted by Chaldean interpreters.

4. I have read all the affidavits filed in these proceedings.  Some of the material in the applicant’s affidavits is clearly inadmissible.

5. The brief background matters are as follows.  The applicant was born in 1968 in Iraq and the respondent was born in 1985 also in Iraq.  In 2006 the respondent migrated to Syria.  The parties met in mid 2007.  There is no issue that in September 2007 they married at an Orthodox Church in Syria.  There is also no issue that Father Y conducted the marriage ceremony.

6. The applicant annexed an English translation of the relevant marriage certificate at Annexure A to his affidavit sworn on 21 September 2009.  The respondent agrees that this document accurately sets out the details of the marriage.  I accept this evidence and find that the parties married in accordance with the circumstances set out in the document.

7. A few weeks after their marriage, the applicant travelled to Australia.  He subsequently sponsored the respondent for entry into Australia.  The respondent entered Australia in June 2008.  But she decided that she did not wish to stay living with the applicant.  After approximately six weeks, they separated.  That was on or about 30 July 2008 when the respondent left the applicant’s house and commenced living with her uncle in Australia.

8. The applicant says that this case is really quite simple.  He says that at the time that they entered into their marriage in Syria in September 2007, the respondent was lawfully married to another person, that person being Mr K.  The applicant…