HWANG & TSENG

[2011] FamCA 846

FAMILY COURT OF AUSTRALIA

HWANG & TSENG [2011] FamCA 846

FAMILY LAW – Marriage null and void – insufficient evidence to satisfy the relevant provisions of section 23B of the Marriage Act

Family Law Act 1975 (Cth)
Marriage Act 1961 (Cth)

APPLICANT: Mr Hwang

RESPONDENT: Ms Tseng

FILE NUMBER: MLC 6950 of 2011

DATE DELIVERED: 3 October 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Murphy J

HEARING DATE: 3 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr James

SOLICITOR FOR THE APPLICANT: Ferraro & Company Pty Ltd

THE RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. The matter be adjourned to 10.00am on 31 October 2011 in the judicial duty list.

2. Any further material and written notification of the adjourned date be served personally on the respondent wife not later than 4.00pm on 27 October 2011.

3. The husband be excused from attendance on the adjourned date of 31 October 2011.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6950 of 2011

Ms Hwang

Applicant

And

Ms Tseng

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Before me in the duty list this morning is an application by a husband that a marriage between he and the wife be declared null and void.  In support of that application, the husband relies upon an affidavit of himself, an affidavit of translation of the documents said to be a marriage certificate, an affidavit in respect of the non-filing of a Family Dispute Resolution certificate, and a Registrar’s determination in that respect. 

2. It is plain on the face of the material, which includes an affidavit of service filed 24 August 2011, that the application and supporting documentation have, in fact, been personally served, upon the respondent wife. 

3. In argument with Mr James, who appears as counsel for the husband today, I indicated that, in my view, the evidence currently before the court was insufficient to discharge the husband’s onus, pursuant to section 23B of the Marriage Act.

4. In that respect, it seems to me particularly important, when a Declaration is sought that has effect as a judgement in rem in respect of a marriage, that the court be satisfied on appropriate evidence as to the requirements of that section. 

5. That is all the more so in my view when the ground relied upon is bigamy, as it is here, for reasons which should be plainly obvious. 

6. In those circumstances, upon indicating my preliminary view to Mr James, he sought on behalf of the husband an adjournment to the next judicial duty list on 31 October 2011, so as to afford to the husband the opportunity to produce all such evidence as might be required, so as to satisfy the relevant provisions of section 23B of the Marriage Act.

7. I should note, in that respect, that the wife’s name was called three times today and there is no appearance on her behalf, despite the application having been served. 

8. It is unfortunate that the husband is placed in the position of prosecuting an undefended application, but is unable to receive the relief today that he seeks. 

9. However, by reason of the matters that I’ve just referred to, it seems to me appropriate that the application be declined today, but that he be afforded the opportunity to present such further evidence as might be required so as to satisfy the terms of that section.

10. Accordingly, it is, in my view, appropriate that the matter be adjourned to the next judicial duty list, which I am told is 31 October 2011, before Cronin J. 

11. The husband indicates that, within a couple of weeks, he is travelling overseas.  Whilst I would, of course, in normal circumstances, be reluctant to excuse the attendance of a party in circumstances where it is a judicial officer other than me who will hear the adjourned application, I nevertheless excuse the husband in the particular circumstances of this case. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 3 October 2011.

Associate: 

Date:  3 November 2011