HILL & SPITERI

[2016] FamCA 1136

FAMILY COURT OF AUSTRALIA

HILL & SPITERI [2016] FamCA 1136

FAMILY LAW – NULLITY – Where a declaration of nullity is sought – Where the applicant was already married to a third party at the time of her marriage to the respondent in Australia – Where the respondent was not lawfully entitled to marry the applicant – Where marriage between the parties declared null and void.

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

APPLICANT: Mr Hill

RESPONDENT: Ms Spiteri

FILE NUMBER: BRC 6727 of 2016

DATE DELIVERED: 24 October 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 24 October 2016

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

Orders

1. The Court declares that the marriage solemnised on … 2014 between the applicant, Mr Hill, and the respondent, Ms Spiteri, is absolutely null and void.

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 Hill & Spiteri 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 BRISBANE

FILE NUMBER: BRC 6727 of 2016

Mr Hill

Applicant

And

Ms Spiteri

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me for determination today an Initiating Application filed by the applicant, Mr Hill, in which he seeks a declaration of nullity, or an annulment in other words, of a marriage that was carried out in Australia on 23 April 2014 between him and the respondent, Ms Spiteri.  Interestingly, in this particular case, Ms Spiteri, the respondent sits at the other end of the bar table from Mr Hill, both of them unrepresented, Ms Spiteri being accompanied by a court provided interpreter in the Tagalog language, completely supporting Mr Hill’s Application. 

2. Section 51 of the Family Law Act1975 (Cth) gives this Court the power to grant a decree of nullity of marriage in the appropriate circumstances, namely where the Court determines that the marriage is void. To determine whether a marriage is void, one looks to another Act, namely the Marriage Act1961 (Cth). In particular one turns to s 23B of the Marriage Act, a section which begins with the heading “Grounds on which marriages are void”. Sub-section (1) of s 23B of the Marriage Act says this relevantly:

   A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:

   (a)  Either of the parties is, at the time of the marriage, lawfully married to some other person;

   That is the relevant provision in this particular case and I do not need to go on and read out any of sub-section (1)(b), (c), (d) or (e).

3. It is quite clear from the evidence that Mr Hill and Ms Spiteri have filed and rely upon in jointly seeking a decree of nullity in respect of their marriage formalised in 2014, that sub-section (1)(a) of s 23B of the Marriage Act1961 applies. 

4. Each of Mr Hill and Ms Spiteri have sworn an affidavit.  They have also filed and rely upon an affidavit of Mr B, who is a migration agent who has been helping them in this particular case. 

5. I now set out the factual circumstances out of which this application arises.

6. Mr Hill deposes in his affidavit to Ms Spiteri coming to Australia from Country C as a visitor to see her daughter, one of her four children from a previous marriage, who was living here.  Mr Hill says that he and Ms Spiteri met and commenced a relationship.  Sometime thereafter in the year that followed, they decided to apply together to the Department of Immigration for Ms Spiteri to obtain a partner visa so that she could continue to live here with Mr Hill as his partner. 

7. They each have said and Mr B, the migration agent, says in his affidavit that there was no requirement for the two of them to lawfully marry in order to support the application for the partner visa that Ms Spiteri had made.  There was no requirement that she be divorced or single or never married in respect of obtaining a visa application based on their de facto relationship. 

8. They made the application for her partner visa on 21 August 2013.  In the application for the partner visa, Ms Spiteri informed the Department of Immigration that she had been previously married in Country C but separated from her husband for many years.  The Department gave them no advice in respect of that matter, I am told. I say that not implying thereby that anyone in the Department should have.

9. Sometime thereafter, Mr Hill and Ms Spiteri decided that they would actually like to formally marry here in Australia for personal reasons, knowing that it was not a requirement for Ms Spiteri’s visa application.  They simply decided that they were in a committed relationship, in love with each other and wanting to marry and live permanently together. 

10. They found a marriage celebrant who they spoke with, they provided the marriage celebrant with a copy of Ms Spiteri’s marriage certificate from Country C showing her marriage to Mr Spiteri on 12 July 1984.  They also showed the marriage celebrant document headed “an affidavit of abandonment” sworn by Ms Spiteri herself on 20 October 2012 in Country C.  For what reason that was sworn is not clear to me. 

11. Nevertheless, the affidavit by Ms Spiteri sworn then deposes to her having been abandoned by Mr  Spiteri soon after she gave birth to their fourth child, a little boy named D who was born in 2006.  They also showed the celebrant another document called a sworn statement that was actually sworn or signed by Ms Spiteri’s former husband, Mr Spiteri.  He apparently swore that on 8 September 2014. Again, the purpose for which he swore that is unclear to me. 

12. However, in that affidavit, he deposes to the lawful marriage to Ms Spiteri that occurred in 1984 in Country C and that they had four children of that marriage, three of whom are now adults and the fourth one, D, being the boy who was born in May 2006.  He deposes to the fact that after D was born, Mr and Mrs Spiteri separated and had not lived together ever since, namely eight years after the time he swore it, around about ten years now at the time this Application is heard by me.  He said in that affidavit that they had irreconcilably lost their trust, confidence, respect and love for each other.

13. Both Mr Hill and Ms Spiteri depose in their affidavits to having been told by the celebrant after they told her these things and showed her those documents, that Ms Spiteri would “be deemed”, and I am using words straight out of Mr Hill’s affidavit, “deemed to have never been validly married”, that the marriage in Country C was not one that was recognised here, and that they could lawfully marry.

14. Clearly, that was wrong.  The marriage to Mr Spiteri in 1984 appears by all intents and purposes to have been a lawful marriage conducted in Country C, evidenced by the marriage certificate a copy of which I have seen. It is a marriage that has never been formally dissolved, either in Country C or here in Australia.

15. Clearly, already being lawfully married at the time, that marriage not having been lawfully dissolved or ended by the death of Mr Spiteri, Ms Spiteri was not in a position to lawfully marry Mr Hill in 2014 when the celebrant married them.  Sometime after their marriage, whilst her visa application was being processed, they thought it appropriate to tell the Department that they had married and on that notice the Department having already been informed by them before that Ms Spiteri was married in Country C, some officer of the department quite appropriately advised Mr Hill and Ms Spiteri that their marriage here is unlawful and should not have happened.

16. In those circumstances, they have determined to take what is seemingly the proper course, namely, to seek a declaration of nullity to have that marriage declared void and for Ms Spiteri to pursue a dissolution application in respect of her marriage to Mr Spiteri. After that has been obtained, they have informed the Court, both in affidavit form and orally from the bar table, that they intend to marry again here in Australia.

17. I also add that Mr B in his affidavit deposes to actually confidentially having spoken to the person who was the marriage celebrant without revealing to her the circumstances of this particular case or the couple he was effectively representing, and obtained what he says was some answers to questions from her that seem to be in his view somewhat vague in respect of the state of the law that she was talking about and potentially misleading or confusing for people such as Mr Hill and Ms Spiteri.  Mr B sets out his opinion about the honesty and credibility of Mr Hill and Ms Spiteri, informing the Court that he does not believe that they would have done anything wrong and that he believes they simply acted on the basis of a misunderstanding. 

18. Whilst all that might be correct, I simply say that it is not for me, in a decision about whether this marriage was in fact void or not void, to consider questions surrounding motives or intent at the time. It is absolutely clear on the factual circumstances that Ms Spiteri, already married at the time to another man, was not lawfully entitled to marry Mr Hill and that pursuant to s 23B(1)(a) of the Marriage Act, their marriage is void.

19. Accordingly, exercising the power given to me pursuant to the Family Law Act and in particular s 51 of that Act, I grant the decree of nullity of marriage that each of them asks the Court to grant and I order accordingly. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 24 October 2016.

Associate: 

Date:  19 January 2017