Ikande & Esuola
[2022] FedCFamC1F 1010
Federal Circuit and Family Court of Australia
(DIVISION 1)
Ikande & Esuola [2022] FedCFamC1F 1010
File number: ADC 1271 of 2022 Judgment of: MEAD J Date of judgment: 19 December 2022 Catchwords: FAMILY LAW – NULLITY – Where a decree of nullity is sought – Where the applicant husband was still married to his former wife at the time of the parties marriage – Where the parties were married overseas – Marriage declared null and void. Legislation: Family Law Act 1975 (Cth) ss 51, 53
Marriage Act 1961(Cth) s 23B
Division: Division 1 First Instance Number of paragraphs: 24 Date of hearing: 11 November 2022 Place: Adelaide Solicitor for the Applicant: AK Family Law For the Respondent: The Respondent did not appear ORDERS
ADC 1271 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR IKANDE
Applicant
AND: MS ESUOLA
Respondent
order made by:
MEAD J
DATE OF ORDER:
19 DECEMBER 2022
THE COURT ORDERS THAT:
1.By virtue of section 51 of the Family Law Act 1975 (Cth) and section 23B of the Marriage Act 1961 (Cth), the marriage solemnised between Mr Ikande and Ms Esuola on … 2018 in the Country B, District Magistrate Court at C Town is declared null and void.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION & BACKGOUND
On 25 March 2022 Mr Ikande filed an Initiating Application seeking that his marriage to Ms Esuola, which took place in Country B, be declared null and void.
In support of his application he filed an affidavit wherein he deposed to:
·Having been born in Country D in 1968;
·Coming to Australia as a refugee in 2007;
·Ms Esuola having been likewise born in Country D in 1981;
·Her currently living in Country B;
·The parties meeting through mutual friends in about May 2017 and starting to communicate regularly via telephone and video chat;
·Him travelling to Country B in early 2018 to meet Ms Esuola;
·Living with her in Country B for three (3) months before returning to Australia;
·During that time the parties marrying in early 2018;
·The marriage being a legal marriage conducted at the local court offices;
·A child being born to the relationship in 2019;
·Him having not met the child although seeing her on video chats;
·Returning to Australia and instructing a migration agent to make the necessary arrangements for Ms Esuola and their child X to join him in Australia on a spouse visa.
·Having previously been married to Ms F;
·Separating from Ms F in 2014;
·Having spoken with a lawyer from the Legal Services Commission prior to leaving for Country B in 2018 about children’s issues relating to that marriage and about obtaining a divorce from his wife;
·Holding the belief at the time he travelled to Country B that the “issue of my divorce” was “taken care of”;
·Becoming aware when he returned to Australia in or about early to mid-2018 and meeting with his solicitor that his divorce from Ms E had not been finalised;
·Signing an Application for Divorce from Ms E on 19 June 2018, which was filed on 5 July 2018;
·That divorce being granted on 23 October 2018 and a decree absolute issuing on 24 November 2018;
·Understanding that because he was still legally married to Ms E at the time of his marriage to Ms Esuola the second marriage was not valid; and
·Still loving Ms Esuola and intending to remarry her once she arrived in Australia.
A document annexed to his affidavit and upon which he relied as proof of marriage was headed REGISTRAR’S CERTIFICATE but was not a Marriage Certificate. The Registrar who completed the certificate was, pursuant to the terms of the certificate, certifying “that on […] 2018 notice was duly entered in “Marriages Notice Book” of this District, of the marriage intended between the parties herein named and described …”. The two persons named were Mr Ikande and Ms Esuola.
The Application was filed in Division 2 of the Federal Circuit and Family Court of Australia and on 8 August 2022 transferred to Division 1 of the Court.
The matter was first listed before me on 21 September 2022. The Applicant was represented by his solicitor but unsurprisingly, there was no appearance by or on behalf of the Respondent wife.
The Court noted that the Affidavit of Service filed in the proceedings on 27 April 2022 failed to comply with rules as to service in that the Applicant had deposed to personally being the server of the documents and to serving them electronically.
In Part G of the document he deposed to having served the documents by electronic communication on 6 April 2022 and to recognising the signature appearing on the Acknowledgement of Service annexed to the affidavit as that of the Respondent. The document had purportedly been served on the Respondent at the email address “…@...”.
The following orders were made on 21 September 2022, namely:
1. The applicant file and serve an affidavit of service in compliance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
2. In addition to the documents referred to in Part C of the said affidavit of service the applicant instruct his solicitor to serve on the respondent a letter advising her that she is able to attend on any hearing by telephone and will be provided with details to dial into the hearing by the Associate to Justice Mead.
3. Directions adjourned to 11 November 2022 at 9:15am as a face to face hearing with the respondent to be at liberty to attend by telephone.
On 10 November 2022, the Applicant filed two (2) further affidavits. The first was that of his solicitor Mr Arthur Koufalas, deposing to having forwarded the Application, supporting affidavit, the Marriage, Families and Separation brochure and a partially completed Acknowledgement of Service form to the Respondent by email to “…@...” on 6 April 2022, contrary to the contents of the original Affidavit of Service filed on behalf of the Applicant. Mr Koufalas deposed to having received the Acknowledgement of Service form purportedly signed by the Respondent on 14 April 2022. Annexure “B” to Mr Koufalas’ affidavit was a copy of the Acknowledgement of Service first filed on 6 April 2022.
He also deposed to having sent a further email to the Respondent on 15 September 2022 enclosing an “Submitting Notice”, and requesting that the Respondent sign and return that document confirming to the Court that she did not want to be heard on the question of costs and that she submitted to any order the Court may make in the proceedings.
His correspondence further attempted to explain to the Respondent the necessity for a decree of nullity to be obtained to enable his client to marry her such that she and their child may be able to join him in Australia. He also further deposed to forwarding an email to the Respondent on 27 September 2022, essentially in the same terms, in compliance with the order of 21 September 2022. The further correspondence comprised Annexure “D” to Mr Koufalas’ affidavit. Mr Koufalas deposed to having not received a response from the Respondent in relation to either sets of correspondence.
In addition to that affidavit, the Applicant filed a further affidavit on 10 November 2022 annexing a copy of the Certificate of Marriage issued by Country B in relation to the marriage between he and Ms Esuola dated 2018. He acknowledged in that affidavit that he was incorrect when he had previously asserted that he and Ms Esuola were married the month prior. He again deposed to recognising the signature on the original Acknowledgement of Service forwarded to the Respondent by Mr Koufalas by way of email on 6 April 2022 and received back by him on 13 April 2022 as that of the Respondent, as he had seen it on previous occasions.
Mr Ikande further deposed in paragraphs 6, 7 and 8, as follows:
6. I have also had numerous discussions via [sic] the telephone about my application for nullity with [Ms Esuola]. Those discussions have not always been easy. [Ms Esuola] has told me that she does not want our marriage to be nullified. She has accused me of trying to get out of our marriage.
7. I wish to remain married to [Ms Esuola], however I acknowledge and understand that because I was still married to my previous wife at the time of my marriage to [Ms Esuola], that my marriage to her is not recognised as valid. I don’t believe that [Ms Esuola] understands that because I was still legally married to my former wife at the time of our marriage, that my subsequent marriage to her is null and void and of no effect.
8. Following a decree of nullity of my marriage to [Ms Esuola], I intend to remarry her, as I have now formally been divorced from my former wife.
He was clearly distressed at the first hearing before me on 21 September 2022 and even more so on 11 November 2022. I am satisfied that the copy of the Certificate of Marriage annexed to the affidavit of Mr Ikande filed on 10 November 2022 was a true copy of the Certificate of Marriage confirming that he and Ms Esuola had married at C Town District Court in early 2018. During the hearing on 11 November 2022, Mr Koufalas tendered to the Court the original certificate of that document (for my perusal). I was satisfied that the copy of same annexed to Mr Ikande’s affidavit was a true copy. The Marriage Certificate displayed the Coat of Arms of Country B, referred to the certificate number and was dated 2018.
During the course of the hearing on 11 November 2022 I requested of Mr Ikande that he attempt to telephone the Respondent and explain to her, notwithstanding that I would be unable to understand the exact conversation, that the matter was on in Court for hearing and I could adjourn the matter further if she so wished. It was evident from the tone of the telephone conversation that the Respondent was unhappy, to the extent that on two (2) occasions she simply hung up the phone. The Applicant had previously deposed to the Respondent being angry about the matter and I was satisfied that such was the case.
Limited as the information before the Court from the Respondent was, I am satisfied that it is appropriate to deal with the Application without further adjournment. I am satisfied that such a course would simply delay the finalisation of the matter in circumstances where the Respondent has not replied to Mr Koufalas’ correspondence save as to the Acknowledgement of Service document and where she is unlikely, based on the evidence of the Applicant, to participate in the proceedings which find no favour with her.
THE LAW
Section 51 of the Family Law Act 1975 (Cth) (“the Family Law Act”) provides that an application for a decree of nullity of marriage “shall be based on the ground that the marriage is void”.
Section 53 of the Family Law Act is in the following terms:
A decree may be made, or refused, under this Part by reason of facts and circumstances notwithstanding that those facts and circumstances, or some of them, took place before the commencement of this Act or outside Australia.
The marriage between the Applicant and Respondent took place outside of Australia. At the time the Applicant filed the Application, the Applicant was present in Australia, ordinarily resident in Australia, an Australian citizen and domiciled in Australia.[1]
[1] Part B section 11 Initiating Application (Family Law).
The grounds for a decree of nullity of marriage are set out in s 23B of the Marriage Act 1961 (Cth) ("the Marriage Act"), which provides, relevantly, as follows:
(1) 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;
(b) the parties are within a prohibited relationship;
(c) by reason of section 48 the marriage is not a valid marriage;
(d) the consent of either of the parties is not a real consent because:
(i) it was obtained by duress or fraud;
(ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
(iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony; or
(e) either of the parties is not of marriageable age;
and not otherwise.
I find that when the Applicant participated in a marriage ceremony with the Respondent in the District Magistrate Court at C Town in Country B in early 2018 he was lawfully married to Ms E. He was not divorced from Ms E until 23 October 2018, with the decree absolute issuing on 24 November 2018.
I accept the evidence of the Applicant that at the time he entered into a marriage with the Respondent in Country B he had separated from Ms E, had sought legal advice regarding parenting matters and divorce and was under the mistaken belief that he was already divorced.
I accept the evidence of the Applicant that upon application being made for a spouse visa for the respondent and their child to travel to live with him in Australia he received advice from the Department of Immigration that he was already married to another person, namely Ms E. I find further that it was this information that lead him to file the Application for nullity and that his advice to the Respondent of his intention to seek such an order was met by her with significant disapproval. I am satisfied she had no knowledge of the fact of the Applicant being lawfully married to another person at the time she entered into a marriage with him in Country B.
Taking into account all of those circumstances, I make a declaration that the marriage between the Applicant and Respondent conducted in Country B in 2018 is null and void.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mead. Associate:
Dated: 19 December 2022
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