KEMAL & KEMAL - [2017] FamCA 915

FAMILY COURT OF AUSTRALIA

KEMAL & KEMAL

[2017] FamCA 915

FAMILY LAW – NULLITY – Where the wife seeks a declaration that her marriage is void – Where the wife argues she gave no consent on the basis of fraud – Where the marriage was obtained by fraud – Order made declaring the marriage a nullity.

FAMILY LAW – PRACTICE AND PROCEDURE – Undefended final hearing – Where the husband has never engaged in the proceedings – Where the husband has filed no documents – Where substituted service has been effected – Where it is appropriate for the matter to proceed on an undefended basis.

Family Law Act 1975 (Cth) s 51
Family Law Rules 2004 (Cth) r 16.07
Marriage Act 1961 (Cth) s 23B

Carroll & Sinclair [2011] FamCA 651
Hosking & Hosking (1995) FLC 92-579
Osman & Mourrali (1990) FLC 92-111
Otway & Otway (1987) FLC 91-807
Valen & Chirere [2013] FamCA 595
Walton & Esposito [2016] FamCA 336

APPLICANT:

Ms Kemal

RESPONDENT:

Mr Kemal

FILE NUMBER:

PAC

4650

2016

DATE DELIVERED:

14 November 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

31 October 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Capellia Legal

RESPONDENT:

No appearance

Orders

That it be declared that the marriage between the applicant Ms Kemal and the respondent Mr Kemal conducted at City B, The People’s Republic of China in 2015 is a nullity.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4650 of 2016

Ms Kemal

Applicant

And

Mr Kemal

Respondent

REASONS FOR JUDGMENT

Introduction

These are proceedings commenced by Ms Kemal, the applicant wife, by Initiating Application filed 30 September 2016 in the Family Court of Australia seeking a declaration that her marriage to Mr Kemal, the respondent husband, is void under s 51 of the Family Law Act 1975 (Cth) (“the Family Law Act”).

Context

The wife is aged 31 and the husband is also aged 31.
The parties met through the internet online in 2014 and this application relates to the parties’ “marriage” in China in 2015.
On 30 September 2016 the wife commenced proceedings in this Court.
The wife had significant difficulty effecting service on the husband and orders for substituted service were made on three separate occasions between December 2016 and May 2017. On 16 May 2017 an order made that service upon the husband would be deemed to be effective…

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 KEMAL & KEMAL

Details

AGLC: KEMAL & KEMAL [2017] FamCA 915
Case: [2017] FamCA 915
Decision Date: 14 November 2017

CaseChat Overview and Summary

In this matter before Foster J, the wife sought a declaration that her marriage to the husband was void. The wife's claim was based on allegations of fraud, asserting that her consent to the marriage was vitiated. The husband did not participate in the proceedings, having filed no documents and not engaging with the legal process, despite substituted service having been effected.

The primary legal issue before the court was whether the marriage was void due to fraud, thereby entitling the wife to a declaration of nullity. A secondary issue concerned the appropriateness of proceeding with the final hearing on an undefended basis, given the husband's non-engagement.

Foster J determined that the marriage was indeed void due to fraud. The court applied the legal principle that a marriage obtained by fraud, which goes to the root of the marital relationship and prevents genuine consent, is a nullity. Having found the marriage to be void, the court also considered it appropriate to proceed on an undefended basis, given the husband's lack of participation and the proper service of process.

Consequently, the court made an order declaring that the marriage between the applicant Ms Kemal and the respondent Mr Kemal, solemnised in The People’s Republic of China in 2015, was a nullity.

Orders

Orders of the court

That it be declared that the marriage between the applicant Ms Kemal and the respondent Mr Kemal conducted at City B, The People’s Republic of China in 2015 is a nullity.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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