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, 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 Jarmin & Ghose has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:
This matter concerns an application for divorce which is agreed to by both parties. The complicating fact is that the parties participated in two marriage ceremonies, the first was a formal ceremony that occurred in 1993 and the second was one that occurred in November 1995.
Based on the wife’s understanding of when the husband’s intention to separate from her was communicated to her, the parties are in agreement that the parties separated on 18 June 2021.
In this matter, I have considered the evidentiary material filed by the parties and a helpful case outline document prepared by the solicitor for the applicant husband.
The relevant law is that s 48 of the Family Law Act 1975 (Cth) (“the Act”) provides that an application under the Act for a divorce order in relation to a marriage be based on the ground that the marriage has broken down irretrievably. Section 48(2) provides that the irretrievable breakdown shall be held to have been satisfied and the divorce order shall be made if and only if the Court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than twelve months immediately preceding the date of the filing of the application for divorce. In this case, as I have indicated, the parties agree that occurred on the 18 June 2021.
The parties each agree that they were married in 1993, the parties further agree that they participated in a second ceremony in 1995. In considering the effect of the second marriage ceremony, I note that s 23B of the Marriage Act 1961 (Cth) (“Marriage Act”) sets out those circumstances in which the Court is empowered to declare a marriage to be invalid, void or a nullity. In the context of comparable facts to this case, that section was considered by Hannam J in Nelson & Nelson [2016] FamCA 516 (“Nelson”) and also by Carew J in Heaney & Gerethy [2021] FamCA 511 (“Heaney”). In Nelson, Hannam J was of a view that although a second marriage is not referred to as being a ground of invalidity for the purpose of s 23B of the Marriage Act, she stated at [14] that,
…as a matter of logic a marriage conducted between two persons already married to each other is void, notwithstanding that it is not referred to in s 23B(1).
In the matter of Heaney, Carew J considered the reasoning of Hannam J in Nelson and determined that it was unnecessary for her Honour, in that case, to determine whether the Court should infer that the additional concept of an invalid second marriage was intended to be included as a ground of nullity in s 23B. Specifically, her Honour noted that Family Court of Australia (as it was then known) is a Court of law and equity and her Honour considered that having regard to the provisions of s 113(1) of the Marriage Act, that the Court should in that case make a declaration that the second ceremony did not constitute a valid marriage. Specifically, her Honour said,
In my view, the 2018 amendments to the Family Law Act empower the Court, as a court of equity, to grant equitable remedies in matrimonial causes. As declaratory relief is an equitable remedy I am satisfied that I have the power to make a declaration that the second marriage entered into between the wife and husband was a marriage prohibited by s 113(1) of the Marriage Act and therefore not a valid marriage.
(Citations omitted)
In that respect, as noted by the solicitor advocate for the applicant in this matter, s 9(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) states
(1) The Federal Circuit and Family Court of Australia (Division 1) is:
(a) a superior court of record; and
(b) a court of law and equity.
In this matter, I respectfully adopt the reasoning and approach taken by Carew J in Heaney in circumstances where both parties acknowledge that the ceremony conducted in 1995 was a second marriage ceremony, I find that that marriage was prohibited by s 113(1) of the Marriage Act and I declare that the second marriage is void.
Having determined that the second marriage ceremony is void, the only valid marriage that has occurred between these parties was the marriage that occurred in 1993.
Accordingly, I am satisfied of the following:
(a)The parties married in 1993;
(b)I find that the husband is an Australian citizen who is ordinarily resident in Australia;
(c)I find that the parties separated on 18 June 2021 and have lived separately and apart since that date;
(d)I find that the marriage has broken down irretrievably;
(e)I note 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.
I therefore grant the order for divorce which will take effect in one months’ time.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 23 September 2022
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