Hoggard & Hoggard
[2022] FedCFamC1F 98
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hoggard & Hoggard [2022] FedCFamC1F 98
File number(s): BRC 8730 of 2021 Judgment of: CAREW J Date of judgment: 4 March 2022 Catchwords: FAMILY LAW – NULLITY OF MARRIAGE – VOID MARRIAGE – Where the applicant was already married when he married the respondent – Where the applicant seeks a declaration of nullity – Where the first and second marriages were solemnised overseas – Where the issue of jurisdiction is considered – Where a marriage solemnised in a foreign country is recognised as valid under a local law – Where the second marriage is not recognised as valid under Australian law – Where the marriage is void – Where a decree of nullity is granted. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Circuit and Family Court (Consequential Amendments and Transitional Provisions) Act 2021 (Cth)
Marriage Act 1961 (Cth)
Explanatory Memorandum for the Federal Circuit and Family Court of Australia Bill 2019
Explanatory Memorandum, Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019
Cases cited: Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56
In the marriage of Teves III and Campomayor (1995) FLC 92-578; (1995) 18 FamLR 844
Zau & Ruk [2014] FamCA 709
Number of paragraphs: 28 Date of hearing: 17 February 2022 Place: Brisbane Counsel for Applicant Mr Van Der Weegan Solicitor for the Applicant: D M E Law Solicitor for the Respondent: Family Law Solutions ORDER
BRC 8730 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HOGGARD
Applicant
AND: MS HOGGARD
Respondent
ORDER MADE BY:
CAREW J
DATE OF ORDER:
4 MARCH 2022
IT IS DECLARED THAT:
The marriage solemnised between Mr Hoggard and Ms Hoggard (nee Ms D) in 2019 is not a valid marriage.
IT IS ORDERED THAT:
1.A decree of nullity in relation to the marriage solemnised between Mr Hoggard and Ms Hoggard (nee Ms D) in 2019 be granted.
2.The Application (Consent Orders) filed by Ms Hoggard on 28 September 2021 be referred to Registrar Gray for consideration.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hoggard & Hoggard has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
REASONS FOR JUDGMENT
CAREW J:
At the time Mr Hoggard purported to marry Ms Hoggard (previously known as Ms D) in Country E in 2019, he was still lawfully married to Ms B.[1]
[1] For ease of reference and, without intending any disrespect, I will refer to the relevant parties by their first names.
Mr Hoggard now applies for a decree of nullity or a “declaration as to the invalidity” of his marriage to Ms Hoggard. Ms Hoggard does not oppose the application and her further attendance was excused at an earlier hearing on 17 December 2021.
JURISDICTION
Proceedings between parties to a marriage for a decree of nullity or proceedings for a declaration as to the validity of a marriage fall within the definition of a ‘matrimonial cause’ in s 4(1) of the Family Law Act 1975 (Cth) (“FLA”). Until 1 September 2021 this Court (formerly the Family Court of Australia but now known as the Federal Circuit and Family Court of Australia Division 1)[2] had original jurisdiction in all matrimonial causes and they could be instituted in this Court.
[2] See s 8(1) Federal Circuit and Family Court of Australia Act 2021 (Cth).
The jurisdiction of this Court as provided in s 39(1) of the FLA was amended by the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) which commenced operation on 1 September 2021. The FCFCOA Act repealed and/or amended certain provisions of the FLA. Since 1 September 2021, a matrimonial cause may only be instituted in the Federal Circuit and Family Court of Australia Division 2 (formerly known as the Federal Circuit Court of Australia) (see s 39(1) of the FLA).
The original jurisdiction of this Court is now set out in s 25 of the FCFCOA Act as follows:
25 Original jurisdiction
(1) The Federal Circuit and Family Court of Australia (Division 1) has original jurisdiction:
(a)if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Court under section 51--as set out in paragraphs 132(1)(a), (b), (c) and (d); or
(b)if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Federal Circuit and Family Court of Australia (Division 2) under section 149--as set out in paragraphs 132(1)(a), (b), (c) and (d); or
(c)as is conferred on the Court, or in respect of which proceedings may be instituted in the Court, by any other Act.
A family law or child support proceeding is defined in s 7(1) of the FCFCOA Act as follows:
family law or child support proceedings means proceedings in respect of which the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction under section 132.
Section 132 of the FCFCOA Act relevantly provides as follows:
132 Original jurisdiction – family law or child support matters
(1) The Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction:
(a)with respect to matters in respect of which proceedings may be instituted under the Family Law Act 1975; or
(b)with respect to matters arising under the Marriage Act 1961 in respect of which proceedings (other than proceedings under Part VII of that Act) are instituted under that Act; or
…
The Explanatory Memorandum for the FCFCOA Bill 2019 (at [86]) states that it is intended that this Court will deal with the same types of first instance matters as the Court currently does. The change in conferral of jurisdiction is said to create an “effective single point of entry in the FCFC Division 2”. I observe that in Queensland nearly 95 percent of proceedings were instituted in the Federal Circuit Court (now FCFC Division 2) prior to the amendments and, contrary to certain statements made in support of the amendments,[3] matters that were transferred between the courts did not have to start again.
[3] Explanatory Memorandum for the Federal Circuit and Family Court of Australia Bill 2019 at [180].
Pursuant to s 229 of the Federal Circuit and Family Court (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) (“FCFCOA (CATP) Act”) the amendments to the FLA effected by the FCFCOA Act, apply to a proceeding commenced before, on or after the commencement date. However, proceedings already in this Court appear to be able to be heard as if they were transferred, although regrettably no specific statement to that effect is included in the FCFCOA (CATP) Act. Nevertheless, the Explanatory Memorandum for the FCFCOA (CATP) Bill 2019 (at [5]) includes the following:
5. For the avoidance of doubt, any first-instance proceedings on foot in the Family Court or the Federal Circuit Court as at the date of commencement of the FCFC Act would be heard in the FCFC (Division 1) or the FCFC (Division 2), respectively. This arrangement appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2) under the FCFC Bill.
Accordingly, as the matrimonial cause was instituted in this Court prior to the amendments, and even though the amendments apply to a proceeding commenced prior to the amendments, in my view, the application can be dealt with in this Court without any administrative transfer between the courts.
Proceedings of a kind with which we are here concerned may only be instituted if either party to the marriage is an Australian citizen, is ordinarily resident in Australia, or is present in Australia on the date the application is filed (see s 39(4) and 39(4A) of the FLA). While the applicant does not depose to his citizenship or residency status, I note that at the time his Application was filed (prior to 1 September 2021) he was living in Australia.
I am therefore satisfied that I have jurisdiction to determine the application.
ON WHAT BASIS CAN A DECREE OF NULLITY BE MADE?
An application for a decree of nullity is made pursuant to s 51 of the FLA and the only ground upon which a decree of nullity can be granted is that the marriage is void.
There is no definition of the term ‘void’ in the FLA. Generally, in such applications, the Court looks to the definition of ‘void’ in the Marriage Act 1961 (Cth) (“Marriage Act”) where, pursuant to s 23B of Part III, a marriage is void where either of the parties is, at the time of the marriage, lawfully married to some other person. However, Part III only applies (relevantly) to marriages solemnised in Australia.[4] Mr Hoggard and Ms Hoggard’s marriage was not solemnised in Australia. A decree of nullity on the basis of the marriage being void within the meaning of Part III of the Marriage Act is therefore not available.
[4]See also In the marriage of Teves III and Campomayor (1995) FLC 92-578; Zau & Ruk [2014] FamCA 709.
The question therefore arises as to what ‘void’ means in the context of this application. There is nothing in the FLA that limits the definition of the term ‘void’ to the definition in Part III of the Marriage Act. Arguably it has a broader meaning.
In a different context to the one under consideration, but nevertheless highlighting the difficulty with the term ‘void’, the High Court of Australia in Victoria v Sutton[5] considered the term and Gaudron, Gummow and Hayne JJ said:
38. Windeyer J said of the term “void” that it “has never been an easy word” and pointed out that it did not necessarily mean that the void act had no legal effect at all. In particular, where (as here) a disposition between two parties is described as “void” at the will of a third, the preferred construction is to read “void” as “voidable”.
(footnotes omitted)
[5] 195 CLR 291 at [306]
Kirby J, in the same case, adopted the submissions put by the respondent in that case as to the problems created by the term ‘void’ which relevantly stated:
95. …
1. The word “void” is inherently ambiguous. It sometimes means that the act in question has not, and never has had, any legal effect (void ab initio). But sometimes it means that the act becomes void as against the world or against those who cannot enforce or take advantage of it subsequently (void ex post facto). “Void” is in some contexts treated as synonymous with “voidable” or voidable at the election of the party for whose benefit a legal rule makes the transaction void. The task of a court, in differentiating between the available meanings of the word, is to ascertain the objective of the lawmaker in the particular circumstances. It is to discover the meaning to be attributed to the word which is natural to its context. Many past cases demonstrate that the use of the word “void” presents a problem of statutory construction. There is no settled meaning.
(footnotes omitted)
Part VA of the Marriage Act sets out the circumstances, under Australian law, in which foreign marriages may be recognised as valid or not recognised as valid (as the case may be). The object of Part VA is to give effect to Chapter II of the Convention on Celebration and Recognition of the Validity of Marriages signed at The Hague on 14 March 1978. In this Part, a reference to a marriage includes a reference to a purported marriage that is void or voidable with certain exemptions (not relevant for present purposes) (see s 88B(3)).
Relevantly, Part VA of the Marriage Act applies to every marriage solemnised in a foreign country where “under local law, the marriage was, at the time it was solemnised, recognised as valid” (see s 88C).
Section 88B defines “local law”, in relation to a marriage solemnised in a foreign country, as meaning the law in force in the foreign country or in that part of the foreign country in which the marriage was solemnised.
While I have no evidence of the local law in relation to the marriage solemnised between Mr Hoggard and Ms Hoggard in Country E, I note that s 88G of the Marriage Act provides a prima facie basis for finding that the marriage in question was solemnised according to the local law.[6]
[6] In the marriage of Teves III and Campomayor (1995) FLC 92-578 at [22] – [29].
Section 88G of the Marriage Act provides:
88G Evidence
(1) A document purporting to be either the original or a certified copy of a certificate, entry or record of a marriage alleged to have been solemnised in, or under the law of, a foreign country and purporting to have been issued by:
(a)in the case of a marriage alleged to have been solemnised in a foreign country--an authority of that country or of that part of the country in which the marriage was allegedly solemnised; or
(b)in the case of a marriage alleged to have been solemnised under the law of a foreign country--an authority of that country;
(c)is, for all purposes, prima facie evidence of the facts stated in the document and of the validity of the marriage to which the document relates.
Exhibit 1 in the proceedings is a certified copy of the marriage certificate between Mr Hoggard and Ms Hoggard providing prima facie evidence that the marriage solemnised between them in Country E was solemnised according to local law. In relation to that marriage, s 88D of the Marriage Act relevantly provides:
88D Validity of marriages
…
(2)A marriage to which this Part applies shall not be recognised as valid [in Australia] … if:
(a)either of the parties was, at the time of the marriage, a party to a marriage with some other person and the last-mentioned marriage was, at that time, recognised in Australia as valid;
…
Mr Hoggard and Ms B married in 2014 in Country F and they filed a joint application for divorce in 2019. A divorce order was made by the Federal Circuit Court of Australia (as that court was then known) on 7 June 2019 and took effect on 8 July 2019. It follows of necessity that the court was satisfied that the marriage between Mr Hoggard and Ms B (which was solemnised overseas) was recognised as a valid marriage in Australia. Accordingly, for the purposes of s 88D of the Marriage Act Mr Hoggard was, at the time of his marriage to Ms Hoggard, already a party to a marriage recognised as valid in Australia.
In circumstances similar to the present case, Lindenmayer J in Teves III and Campomayor[7] found that a marriage that was required not to be recognised as valid (by virtue of s 88D(2)) was “void” within the meaning of s 51 of the FLA and held that a decree of nullity could issue. His Honour said from [22]:
22. At first I had some difficulty in accepting that submission because nowhere in Part VA of the Marriage Act is it provided that a marriage entered into in a foreign country is “void”, for the purposes of Australian law, in circumstances defined in s. 88D(2), but only that in those circumstances it “shall not be recognized [in Australia] as valid” (emphasis added). This may be contrasted with ss. 23 and 23B, which provide that a marriage to which either of those sections directly applies “is void” in those circumstances. However, on reflection, I think that the submission is a sound one because it is inconceivable that in circumstances where a court of this country, exercising the judicial power of the Commonwealth, is obliged by a valid statute of the Commonwealth not to recognize, as valid, a marriage solemnized in a foreign country, that court could refuse to declare the marriage invalid (which is all a decree of nullity does) at the suit of one of the parties to that marriage who has properly invoked the court's jurisdiction to make such a declaration, merely because the section under which the application is brought uses the expression “void” as the basis for a nullity application rather than , say “invalid” or “not valid”. In short, I conclude that if, in accordance with s. 88D(2) of the Marriage Act, a marriage solemnized outside Australia is one which is required not be recognized in Australia as valid, then it is “void” within the meaning of that term as used in s. 51 of the Family Law Act.
23. Some support for that conclusion may be obtained from s.88F of the Marriage Act which provides:
“88F Notwithstanding any other law, the question whether a marriage solemnized in a foreign country is to be recognized in Australia as valid shall be determined in accordance with the provisions of this Part, whether or not the determination of the question is incidental to the determination of another question”.
(As per the original)
[7] (1995) FLC 92-578 at [22].
I respectfully adopt the reasoning of Lindenmayer J.
Accordingly, as the marriage solemnised between Mr Hoggard and Ms Hoggard is not recognised as valid under Australian law, it is therefore void and a decree of nullity will issue.
BIGAMY
As Mr Hoggard was already married when he purported to marry Ms Hoggard and would therefore appear to be liable for prosecution for the offence of bigamy under s 94 of the Marriage Act, I invited submissions on whether or not I should refer the papers to the appropriate authorities to consider whether or not Mr Hoggard should be prosecuted. I do not propose to do so, as I accept the submissions made on behalf of Mr Hoggard that s 94 does not appear to apply to marriages solemnised in foreign jurisdictions (see s 8 of the Marriage Act).
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 4 March 2022
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