KALLESTAD & BRODIE

[2015] FamCA 158

FAMILY COURT OF AUSTRALIA

KALLESTAD & BRODIE [2015] FamCA 158

FAMILY LAW – MARRIAGE – NULLITY – Where the parties have been married for three years – Where the wife did not hold a valid visa to remain legally in Australia after the marriage – Where the wife left Australia to apply for a partner visa overseas – Where during the process of the visa application, searches by the Department of Immigration revealed that the wife had been married to another man and had two children – Where the husband applied for a decree of nullity – Decree of nullity granted.

Family Law Act 1975 (Cth) s 51
Marriage Act 1961 (Cth) s 23

APPLICANT: Mr Kallestad

RESPONDENT: Ms Brodie

FILE NUMBER: SYC 3532 of 2014

DATE DELIVERED: 13 March 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 11 March 2015

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: No Appearance

Orders

IT IS ORDERED

1. That pursuant to s 51 of the Family Law Act 1975 (Cth), a decree of nullity is granted in relation to the marriage celebrated on 22 October 2011 between Mr Kallestad and Ms Brodie.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kallestad & Brodie has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3532  of 2014

Mr Kallestad

Applicant

And

Ms Brodie

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application by Mr Kallestad (“the husband”) seeking a declaration that his marriage to Ms Brodie (“the wife”) is a nullity.

2. The husband appeared in person in relation to the application. There was no appearance by the wife but I am satisfied from the Facebook entries which the husband put in evidence that she is aware that the proceedings were to be heard on 11 March 2015.

3. The husband and the wife met in 2009, commenced a relationship in about June 2009, and in September 2010 commenced to live together in a de facto relationship. In 2011, they decided to marry, and they were married in a civil ceremony.

4. The wife was not in possession of a visa which allowed her to remain legally in Australia and the husband sponsored her application for a partner visa relying upon the marriage.

5. Pursuant to advice received from an Immigration Agent, the wife left Australia on 27 March 2012. On 29 March 2012 the husband lodged an application for a partner visa. In the process of the visa application he was requested to provide supporting documentation by the Department of Immigration (“the Department”).

6. The Department itself conducted searches which revealed that on 3 June 1993, in the Country A, the wife was married to Mr B and further that the wife and Mr B have two children born in 1997 and 1995. Neither the fact of the wife’s previous marriage, nor the existence of her children, was known to the husband.

7. The wife was interviewed by the Department on 11 July 2012 in relation to her visa application.

8. In the course of the interview the wife did not suggest to the Department that the marriage between her and Mr B had been brought to an end either by divorce or any other means.

9. I am therefore satisfied that at the time of the marriage ceremony which was conducted between the husband and the wife, the wife was legally married to another man.

THE LAW

1. The grounds on which marriages are void are set out in s 23 of the Marriage Act 1961 (Cth) which provides in subsection (1)(a) that a marriage is void if either of the parties was, at the time of the marriage, legally married to some other person.

2. I am satisfied that the ground has been made out and that the marriage between the husband and the wife is void. A decree of nullity will be pronounced.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 13 March 2015.

Associate:

Date:  13/03/2015