Jarmin & Ghose - [2022] FedCFamC1F 686

Federal Circuit and Family Court of Australia
(DIVISION 1)
Jarmin & Ghose [2022] FedCFamC1F 686

File number(s): SYC 933 of 2022

Judgment of: MCCLELLAND DCJ

Date of judgment: 9 September 2022

Catchwords:
FAMILY LAW – DECLARATION – Validity of marriage – Where the parties were lawfully married in Australia in 1993 and 1995 – Where the Court has the power to make a declaration that the second marriage is not a valid marriage – Where a declaration is made that the second marriage is not a valid marriage.

FAMILY LAW – DIVORCE – Where the husband makes an application for divorce of the 1993 marriage – Application for divorce order granted

Legislation:
Family Law Act 1975 (Cth) s 48

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 9(1)

Marriage Act1961 (Cth) ss 23B, 113(1)

Cases cited:
Heaney & Gerethy [2021] FamCA 511

Nelson & Nelson [2016] FamCA 516

Division: Division 1 First Instance

Number of paragraphs: 11

Date of hearing: 9 September 2022

Place: Sydney

Solicitor for the Applicant: Mr Jones of Bellevue Lawyers

The Respondent: Litigant in person
ORDERS

SYC 933 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR JARMIN

Applicant

AND:
MS GHOSE

Respondent

order made by:

MCCLELLAND DCJ

DATE OF ORDER:

9 SEPTEMBER 2022

THE COURT ORDERS THAT:
1.The marriage entered into between Mr Jarmin and Ms Ghose in the State of New South Wales, Australia in 1995 was a marriage prohibited by s 113(1)(a) of the Marriage Act 1961 (Cth) and therefore not a valid marriage.

THE COURT NOTES THAT:
A.The registrar of the New South Wales Registry of Births, Deaths and Marriages is requested to adjust their records to remove reference to the parties being married in 1995.

THE COURT FINDS THAT:
2.The marriage entered into between Mr Jarmin and Ms Ghose in the State of Queensland, Australia in 1993 is proved.
3.MR JARMIN was at all material times domiciled in Australia.
4.The ground for the application for a divorce order – namely that the marriage has broken down irretrievably is proved.
5.AND THE COURT NOTES that the parties’ children are aged 21, 24 and 25 and there is no issue as to appropriate steps being taken in respect to the care and welfare of those children who are now adults.

THE COURT FURTHER ORDERS THAT:
6.A divorce order be made, such divorce order to take effect and thereby terminate the marriage on the tenth day of October 2022.

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jarmin & Ghose

Details

AGLC: Jarmin & Ghose [2022] FedCFamC1F 686
Case: [2022] FedCFamC1F 686
Decision Date

CaseChat Overview and Summary

The matter before the Court involved an application for divorce by Mr. Jarmin, with the agreement of Ms. Ghose. The parties had entered into two marriage ceremonies, one in 1993 and another in 1995. The primary legal issues the Court had to address were the validity of the second marriage and whether the marriage had irretrievably broken down, thereby satisfying the grounds for a divorce order. The Court needed to determine which marriage was valid, given that the parties participated in two ceremonies, and whether the irretrievable breakdown of the marriage had occurred as per the requirements of the Family Law Act 1975.

The Court concluded that the second marriage, which took place in 1995, was prohibited by section 113(1) of the Marriage Act 1961 and thus not a valid marriage. The Court adopted the reasoning from Heaney & Gerethy [2021] FamCA 511, where Carew J held that the Court, as a court of equity, had the power to declare the second marriage void. Consequently, the only valid marriage between the parties was the one conducted in 1993. The Court found that the marriage had indeed broken down irretrievably, with the parties having separated on 18 June 2021 and living separately and apart since that date. Additionally, the Court noted that the parties' children, now adults aged 21, 24, and 25, were not an issue concerning their care and welfare. Based on these findings, the Court granted the divorce order, effective from 10 October 2022.

The Court further ordered that the Registrar of the New South Wales Registry of Births, Deaths and Marriages adjust their records to reflect the invalidity of the 1995 marriage. This decision ensures that the legal status of the parties' marriages is accurately represented in official records.

Orders