HO & NUANG

[2011] FamCA 688

FAMILY COURT OF AUSTRALIA

HO & NUANG [2011] FamCA 688

FAMILY LAW – annulment

Family Law Act 1975 (Cth)

APPLICANT: Mr Ho

RESPONDENT: Ms Nuang

FILE NUMBER: MLC 2260 of 2011

DATE DELIVERED: 1 July 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 1 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: Mr Ho

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: Ms Nuag

Orders

1. That the marriage solemnized at Melbourne on … 2010 between the parties is declared to be absolutely null and void.

IT IS NOTED that publication of this judgment under the pseudonym Ho & Nuang has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 2260 of 2011

Mr Ho

Applicant

And

Ms Nuang

Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr Ho for the annulment of his marriage, a marriage that took place with Ms Nuang on 26 September last year in Melbourne.  I adjourned the proceedings on the last occasion that the application was before the Court, because I wanted Ms Nuang to be aware of what was going on.  Today she has appeared and has confirmed that she has now read the affidavit material of her husband and supports what he is doing.  I have warned both parties of the potential criminal prosecution consequences of this material, but in the circumstances, I do not propose to refer the papers to the Attorney-General.  I do not in this case having regard to the fact that there may be an innocent explanation for all of this; it is just not immediately apparent, and I do not want to waste the resources of the Australian Government in an unnecessary dispute. 

2. What occurred here was that on 26 September last year, the parties married.  Mr Ho says that at that stage, he was still legally married to a Ms B.  That marriage took place in Country B.  He says, and I quote, “At the time, I thought that the Australian Government did not accept [Ms B] as my wife, because my attempts to sponsor her to Australia as my wife were rejected.”  There are a number of ways that statement could be interpreted, but I will accept that it was intended to say that he knew in September last year that he was still married.  He says that some months ago he became aware that his understanding was wrong, and he took action to rectify the situation.  What he did was initiate a divorce under Vietnamese law with Ms B. 

3. What both parties before me today wish to do is to apply effectively to nullify the marriage in September, and then they will both marry each other again.  Ms Nuang, who has mentioned that she is expecting a child and is very keen to support the application, says she trusts her husband-to-be and has no difficulty about me making the order.  It is not so much a question of her trusting Mr Ho or her willingness to marry him if I make this order, but more the fact that in September 2010, Mr Ho had no right to marry Ms Nuang.  That is the only issue about which I have to be concerned. 

4. Having read all of the documents on the file, including the various certificates and the affidavit material, I am satisfied that Mr Ho had no right to marry under Australian law on 26 September 2010, because he was already married to another person.  In those circumstances, the marriage must be annulled. 

ORDER DELIVERED

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 July 2011.

Associate: 

Date:  14 July 2011