Keyet & Keyet

[2013] FamCA 77

FAMILY COURT OF AUSTRALIA

KEYET & KEYET [2013] FamCA 77

FAMILY LAW - NULLITY – marriage declared null and void

Family Law Act 1975 (Cth)

APPLICANT: Ms N Keyet

RESPONDENT: Mr Keyet

FILE NUMBER: MLC 9975 of 2012

DATE DELIVERED: 8 February 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 8 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Boymal

SOLICITOR FOR THE APPLICANT: Victoria Legal Aid

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: N/A

IT IS ORDERED THAT

1. The marriage solemnised at Suburb B in the Northern Territory on 6 June 2009 between Mr Keyet and Ms N Keyet is declared to be absolutely null and void.

2. The Initiating Application filed 31 October 2012 be otherwise adjourned part-heard before Justice Macmillan in the Judicial Duty List at 10.00am on 11 April 2013.

3. As soon as practicable the applicant serve a copy of this order and my reasons for judgment upon the respondent by pre-paid post to … D Street, Suburb Y, Northern Territory.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including solicitor acting as counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9975 of 2012

Ms N Keyet

Applicant

And

Mr Keyet

Respondent

REASONS FOR JUDGMENT

1. This is an Application for a Decree of Nullity.  The applicant has filed an affidavit of service of the Application upon the respondent together with an acknowledgement of service signed by the respondent.  The matter was first listed for hearing before Registrar Field on 9 January 2013 and on that date the Registrar adjourned the matter to the Judicial Duty List this day and further ordered that the applicant’s solicitors advise the respondent by prepaid post addressed to the respondent at the address on the affidavit of service of the adjourned date.

2. The applicant in her affidavit filed 29 January 2013 deposes that her solicitor forwarded a letter to the respondent advising him of that adjourned date on 11 January 2013 and has annexed a copy of that letter to her affidavit.  The applicant has also provided me with copies of two letters forwarded by her solicitors to the respondent at the same address, enclosing firstly an unfiled copy of her affidavit sworn 25 January, and on 31 January 2013 a further letter enclosing a filed copy of that affidavit.

3. The applicant also deposes to having been in communication with the respondent and in particular having sent a number of text messages to the respondent, including on 6 January 2013 she deposes she received a text message from the respondent which she has since deleted, but which said words to the effect of, “Just letting you know I won’t be appearing or contesting the annulment matter.”

4. Again, on 9 January 2013 she deposes to having sent a text message to the respondent which she again says she deleted, the text message stating words to the effect of, “Our matter has been adjourned until February 8.  Will you be appearing to contest?”. She submits to having later received a response from the respondent stating words to the effect of, “I think I’ve put you through enough hurt.”  I’m satisfied that the respondent was served with the Application for Nullity and is aware of the proceedings listed before me today.  The respondent has not appeared.  He has not instructed solicitors to appear on his behalf or filed any response to the Application or affidavits in response to those filed by the applicant.

5. The applicant is 38 years of age and the respondent is 40 years of age.  There is one child of their relationship.  The applicant deposes that she and the respondent were married in a civil ceremony at Suburb B in the Northern Territory in June 2009.  Prior to the marriage the respondent told the applicant that he had previously been married to Ms R Keyet, that there was one child of that relationship and that he had obtained a divorce from his former wife. 

6. When the marriage celebrant asked to see evidence of the respondent’s divorce in anticipation of the marriage, he confirmed that he had been divorced but later advised both the applicant and the celebrant that he had made some inquiries, that there was no record of him having been married, and that he had never been validly married.  This was ultimately accepted by both the applicant and the marriage celebrant who proceeded to marry the applicant and the respondent.  Following the marriage, the applicant deposes that she received the following Facebook message from Ms R Keyet:

   Hello, new Mrs [Keyet].  How can you be Mrs [Keyet] when I am still Mrs [Keyet]?  From the old Mrs [Keyet].

7. The applicant responded, suggesting that Ms R Keyet check her marriage records as it was her understanding that they had not been validly married. 

8. The applicant and the respondent separated on 6 September 2010, and following that separation the applicant contacted Ms R Keyet who sent her a copy of her marriage certificate.  That marriage certificate is annexed to her affidavit.  According to that marriage certificate, the respondent and Ms R Keyet were married at Town A, NSW in April 1993.

9. As she was still not convinced, the applicant asked Ms  R Keyet to obtain a copy of her marriage certificate from the Registrar of Births, Deaths and Marriages. 

10. On 22 February the applicant wrote to the Family Court asking for confirmation of the respondent’s divorce.  On 29 February 2012 she received a letter from the Family Court advising her that there was no record of either the Family Court of Australia or the Federal Magistrates Court of Australia having granted a divorce.

11. On 11 January 2013 the applicant’s solicitor wrote to the Registrar of the Family Court of Western Australia in order to determine whether the Family Court of Western Australia had granted a divorce.  On 15 January 2013 the Principal Registrar of the Family Court of Western Australia advised that the Court had no record of any divorce. 

12. Section 23(1)(a) of the Marriage Act (1985) provides that a marriage is void if either of the parties to that marriage is at the time of the marriage lawfully married to some other person.

13. I am satisfied on the basis of the evidence before me that when the respondent purported to marry the applicant, he was legally married, that marriage having taken place in April 1993 and that the marriage had not been dissolved.  On that basis I propose to make the orders sought by the applicant and declare her marriage to the respondent null and void. 

14. On the basis of the evidence before me, and I note that that evidence is not contradicted by the respondent, he may have committed the offence of bigamy.  I have a discretion in those circumstances to refer the papers in the matter to the relevant authorities for consideration.

15. I have been advised that following the hearing before the Registrar on 9 January 2013 the applicant herself contacted the Australian Federal Police who advised her to contact them again following the hearing today once I had made my decision.  Whether the applicant has herself made further contact with the Federal Police may influence any decision I might make as to whether I should refer the matter to the relevant authorities. In those circumstances I will require the applicant to file a further affidavit deposing as to whether she has or has not contacted the Federal Police and any other evidence that might be relevant to the exercise of my discretion in relation to this issue.

16. I will otherwise adjourn the matter for hearing before me as a part-heard matter in the Judicial Duty List on 11 April 2013 at 10:00am.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice MacMillan delivered on 8 February 2013.

Associate: 

Date:  20 February 2013