Latu & Fonua
[2022] FedCFamC1F 49
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Latu & Fonua [2022] FedCFamC1F 49
File number(s): SYC 7140 of 2021f Judgment of: CAMPTON J Date of judgment: 10 February 2022 Catchwords: FAMILY LAW – NULLITY – Application by Husband for a decree of nullity of marriage – Where the Husband contends that the Wife was lawfully married to another person at the time of the marriage – Where it is found that the Wife was lawfully married to another person at the time of the marriage - Where the marriage was therefore void – Decree of nullity granted – Costs ordered against the respondent on a party/party basis. Legislation: Family Law Act 1975 (Cth) ss 44(1A), 51, 117
Marriage Act 1961 (Cth) s 23B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 1.04
Cases cited: Axon v Axon (1937) 50 CLR 395; [1937] HCA 80 Division: Division 1 First Instance Number of paragraphs: 54 Date of hearing: 9 February 2022 Place: Sydney (via viedolink) Solicitor for the Applicant: Mr McMartin Respondent: Did not participate ORDERS
SYC 7140 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LATU
Applicant
AND: MS FONUA
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
10 FEBRUARY 2022
THE COURT ORDERS THAT:
1.By virtue of section 51 of the Family Law Act 1975 (Cth) and section 23B of the Marriage Act 1961 (Cth), the marriage solemnised between Mr Latu and Ms Fonua on 25 June 2019 is declared null and void.
2.A Decree of Nullity is made in respect of the marriage solemnised on 25 June 2019 between Mr Latu and Ms Fonua.
3.Ms Fonua pay Mr Latu costs of and incidental to his application for Nullity in the sum of $2,750 within 21 days of the date of this order.
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 Latu & Fonua has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
Mr Latu (“the applicant”) seeks a decree of nullity for his marriage to Ms Fonua (“the respondent”) on 25 June 2019.
The applicant is entitled to institute proceedings seeking a declaration of nullity of the marriage pursuant to s 44(1A) of the Family Law Act 1975 (Cth) (“the Family Law Act”). The applicant’s application for a declaration of nullity is based on his assertion that the Respondent was, at the time of the marriage to him, lawfully married to some other person.
The applicant relied on the following documents:
(a)Outline of Case filed on 8 February 2022;
(b)Amended Application for Nullity filed on 1 December 2021;
(c)Affidavit of Mr Latu filed on 1 October 2021;
(d)Affidavit of Ms B filed on 1 October 2021;
(e)Affidavit of service of Mr C filed on 11 November 2021;
(f)Affidavit of service of Mr D filed on 2 February 2021;
(g)Affidavit of service of Mr D filed on 4 February 2021;
(h)Affidavit of Mr D filed 8 February 2022.
THE EVIDENCE
The applicant was born in Country E in 1968. The respondent was born in Country F in 1975. Both are citizens of New Zealand.
The applicant was married once before his relationship with the respondent, but that marriage ended and a divorce was granted.
The parties commenced cohabitation in 2004 while living in Australia. They had one child together, X, born in 2005, currently 16 years of age. The parties separated in 2007.
Upon separation, the respondent returned to live in New Zealand with X. The applicant continued to live in Australia and is now a permanent resident of this country. The applicant commenced to pay child support to the respondent on the parties’ physical separation. He continues to do so.
In early 2019, the parties reconciled their relationship and began communicating with each other by telephone. In around March 2019, the respondent returned to Australia with X and moved into the applicant’s residence at G Street, Suburb H in New South Wales.
The parties were married in 2019 at Suburb M in the state of New South Wales. On their marriage certificate, the respondent indicated her conjugal status as “Never Validly Married”. The marriage certificate was marked at the hearing as Exhibit A1.
The applicant’s niece, Ms B, lived with the parties and X at the applicant’s home at the time when the parties reconciled and married.
In around March 2021 X disclosed to Ms B that her mother (the respondent) was also married to Mr J. During their conversation, X went into her mother’s room and returned holding her own passport and a marriage certificate identifying the respondent. X handed the passport and the marriage certificate to Ms B. She said X also gave Ms B a letter. The letter was annexed to Ms B’s affidavit. It read:
“Plz [Ms B] let Dad know everything and Tell him the Reason why I Took The PassPort Plz it hurt me if I Tell Dad the Reason why Mum came here and how she’s cheating on dad….This hurt me very Bad [Ms B] cause I Don’t want a woman To treat Dad that kind of why like W.T.F she has a husband In New Zealand and she came here and treat my own father like this it hurt me cause she always Talk to her husband in N.Z and she’s Telling wrong story To Dad …I Don’t like that kind of way? I Don’t want our Dad life to be this way But just wanna say thanks alot to you for always beinging here for me and always having my Back I Don know How to explain How much and many things you have done for me Just wanna say thanks alot alot you mean alot to me xox but Plz show dad everything and how … said that she Never Contac my Nanny only me Plz xox
(As per the original)
Ms B photographed each of her own passport and the marriage certificate. She later showed the photographs to the applicant. The photograph annexed to Ms B’s affidavit dated 6 January 2010 is of a document titled “Marriage Certificate” bearing a registration number … affixing the certification of the Acting Registrar General in Brisbane Queensland. It was marked exhibit A2. Exhibit A2 records:
(a)A marriage at Suburb K in Queensland in 2009 between bridegroom Mr J and bride Ms Fonua;
(b)Each of the marital status of bridegroom and bride marital as “Never Validly Married”
(c)The birthplace, age and occupation of the bridegroom and bride.
Sometime later X told the applicant that her mother (the respondent) was already married to and remained married to Mr J at the time of the parties’ marriage in June 2019.
The applicant says he “confronted [the respondent] about her being married to another man and [the respondent] denied that she was married before.”
In May 2021 the parties separated on a final basis. X left the applicant’s home at the same time with the respondent.
“Mr L” died in mid-2021 in Auckland New Zealand. His death certificate was annexed to the applicant’s affidavit. There are consistencies as to name, age and place of birth of Mr J as recorded on the death certificate when compared to the marriage certificate being Exhibit A2.
The applicant put into evidence by way of annexures to affidavits, searches conducted of the records of:
(a)The Federal Circuit and Family Court of Australia’s case management system for a record of divorce being granted either by the Federal Circuit of Australia or the Family Court of Australia for the period 23 December 2009 to 2 September 2021 as between Mr L and Ms Fonua. The search recorded no record of a divorce being ordered in either Court; and
(b)New Zealand sources for a record of divorce being granted between the same persons. The search recorded no record of any divorce of those persons being ordered in New Zealand.
Procedural History
On 1 October 2021 the applicant initiated proceedings in Division 2 of the Federal Circuit and Family Court of Australia seeking that his marriage to the respondent be declared null and void on the ground that, at the time of their marriage, the respondent was lawfully married to some other person.
On 12 October 2021 the matter was transferred to Division 1 of this Court.
I am satisfied and find that the respondent was personally served with the Initiating Application and each of the affidavits of the applicant and his niece Ms B on 21 October 2021. She signed an acknowledgement of service.
The matter was listed before a judicial registrar on 15 November 2021. The affidavit of the applicant’s solicitor records:
I spoke to the [respondent], by telephone, at approximately 8.00am (on 15 November 2021)
Me:Do you have legal representation?
[the respondent]: No, I am going to get legal aid.
Me:Are you attending today’s Court Mention?
[the respondent]: No, I am not feeling well
Me:Are you intending on filing a response, because no response has been filed to date.
[the respondent] I think so, I need to talk to legal aid.
Me:Do you have an email address for me to forward notices from the Court?
[the respondent]: Yes my email address is …
(As per the original)
On 15 November 2021 the judicial registrar made orders directing the respondent to file and serve any Response to the Nullity Application and any affidavits on which she intended to rely by no later than 4.00 pm on 13 December 2021. The orders made on that day record that the Court received correspondence from the respondent half an hour prior to the listing advising that she would not be able to attend the Court listing due to illness in these terms:
Please my name is [Ms Fonua] I just right this email to you please n let you know please today is my court case at 10am n I'm not coming to my court case I'm not feeling well please,I had my hip oporaction and I can't walk properly please n it's very pain full n today is my appointment to the doctor please,I will bring my medical certificate n I will send to you after my appointment please thank you.
(As per the original)
On 15 December 2021 the applicant filed an Amended Initiating Application for nullity. This was provided to the respondent by email by the applicant solicitors on 16 December 2021 with a sealed copy of the orders made 15 November 2021 (there had been a Court delay in issuing the sealed orders). The email included an identification of the further listing hearing on 22 December 2021.
On 22 December 2021 the matter came before a judicial registrar. The respondent made no appearance. She had not filed any material in compliance with the orders of 15 November 2021. The matter was listed for hearing on a date to be advised, and the applicant was directed to provide to the respondent by email a copy of the orders made on that day.
The applicant’s solicitor’s affidavit records the content of a telephone conversation on 13 January 2022 in these terms:
Me:Are you [Ms Fonua]
[the respondent]: Yes, I am
I introduced myself as the legal representative in the current proceedings before the Court, for [Mr Latu] in his application for decree of nullity.
Me:Are you legally represented?
[the respondent]: No, I am not
Me:I note that you have not filed a response to date, do you intend to file a response?
[the respondent]: I am not sure
Me:Are you going to contest out client application?
[the respondent]: I am not sure
Me:Out client application is that you were married to [Mr J] when you married [Mr Latu] in 2019
The respondent then commenced providing a version of the circumstances surrounding her relationship with our client and marrying [Mr J]. At this point I urged [the respondent] to provide a version to her own solicitor and to file her version by way of a response in proceedings. [the respondent] continued:
[the respondent]: I did not want to marry [Mr J], but we visited Brisbane with my family, I think it was in 2009. My family forced me to marry him in Brisbane and then he was always with his first wife and I left with my daughter and went back to New Zealand.
Me:did you ever divorce [Mr J], I understand that you state you were not with him, but did you ever file for a legal divorce?
[the respondent]: I am not sure if [Mr J] filed for divorce, he was always after his first wife and that is why I left him
Me:I understand that you and [Mr J] may not have been together, but I am just wanting to know the facts about whether you were ever divorced from [Mr J] before he passed away. Did you ever file for a divorce inAustralia or New Zealand?
[the respondent]: No
(As per the original)
On 17 January 2022 the solicitor for the applicant served the respondent with a copy of the orders of 22 December 2021 by email in compliance with the orders made 22 December 2021.
On 2 February 2022 directions were made in chambers listing the matter for an undefended hearing before me on 9 February 2022
I am satisfied that the respondent has been served with the Amended Initiating Application and affidavit material relied upon by the applicant. I am satisfied that she has knowledge of the relief sought and as to the matter being determined in her absence and on an undefended basis.
On 9 February 2022 the applicant appeared represented by his solicitor by way of Microsoft teams link. There was no appearance by or on behalf of the respondent. The applicant sought to proceed with the hearing on an undefended basis. The respondent effectively disengaged from the proceedings, having failed to comply with the orders made as to the filing of a response and any affidavit evidence. Having regard to all the evidence, coupled with the objects identified in rule 1.04 of the Rules of Court and the election of the respondent not to participate in proceedings to date, I was satisfied it was appropriate that the application be finalised and dealt with in the respondent’s absence.
THE LAW
Section 51 of the Family Law Act provides that an application for a decree of nullity of marriage “shall be based on the ground that the marriage is void”.
The grounds for a decree of nullity of marriage are set out in s 23B of the Marriage Act 1961 (Cth) (“the Marriage Act”), which provides, relevantly, as follows:
1.A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:
(a)either of the parties is, at the time of the marriage, lawfully married to some other person;
(b)the parties are within a prohibited relationship;
(c) by reason of section 48 the marriage is not a valid marriage;
(d) the consent of either of the parties is not a real consent because:
(i)it was obtained by duress or fraud;
(ii)that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
(iii)that party is mentally incapable of understanding the nature and effect of the marriage ceremony; or
(iv)either of the parties is not of marriageable age;
and not otherwise.
Section 113 of the Family Law Act states that the court may make such declaration as is justified in matrimonial proceedings.
The High Court in Axon v Axon (1937) 50 CLR 395 at [404] said:
The presumption in favour of the validity of a marriage duly celebrated casts upon those who deny it the burden of producing reasonable evidence of the fact which renders the marriage void, whether that fact is an impediment consisting in a prior marriage or a prohibited degree of relationship or the failure to fulfil some condition indispensable to the efficacy of the ceremony.
Accordingly, the burden of producing reasonable evidence of the fact that the Respondent was, at the time of the marriage, lawfully married to some other person falls on the Applicant. The standard of proof required is on the balance of probabilities.
FINDINGS
I find that the respondent was married to Mr J in 2009 in Queensland.
The birthplace and age of the respondent recorded on the photograph of the marriage certificate, being Exhibit A2, and the birthplace and age of the respondent are consistent with those recorded on the marriage certificate between the applicant and respondent, being Exhibit A1. There are some similarities and some differences between the names of the bride’s parents on each document.
It would confound common life experience for the respondent to have in her possession and control the marriage certificate photographed in Exhibit A2 bearing the similarities recorded in the above paragraph if it was not a certificate of a marriage of the respondent.
The conversations between the daughter of the parties X and Ms B, and X’s letter to the applicant support his finding. The respondent in a telephone conversation with the applicant’s solicitor conceded that fact of her entry to a lawful marriage to Mr J in Queensland and she not knowing if an order of divorce had made as to that marriage.
I find that no such divorce order of the marriage of the respondent entered in Queensland on 23 December 2009 has been granted.
I am satisfied that and find that Mr J is the same person as Mr L.
The applicant has made extensive enquires as to any order for divorce as to the marriage in 2009 being made in both Australia and New Zealand. The applicant successfully tracked Mr J to New Zealand. I find that Mr J was still alive when the respondent married the applicant, and that he died in 2021.
I find that the respondent was untruthful when she represented to the marriage celebrant, to the applicant and to the Registrar of Births Deaths and marriage in NSW that when she engaged in the marriage ceremony with the applicant on Suburb M in 2019 she was not previously married. Although it is not clear I find it is likely that respondent signed a declaration pursuant to the Marriage Act representing she had not been previously married that was false. I am unable to find as to whether that false declaration was intentional and calculated, or was by way of reckless indifference.
I find at the time the respondent participated in the marriage ceremony with the applicant in 2019 she was lawfully married to another person. She had been validly married to Mr J and was at that stage not divorced.
CONCLUSION
In circumstances where the respondent was already married to Mr J at the time of the marriage under consideration, and there being no suggestion that the applicant was aware of this circumstance at the time, the marriage is void and on that basis a decree of nullity is made.
Accordingly, a declaration will be made that the marriage between the applicant and respondent conducted 2019 at Suburb M is null and void.
COSTS
At the conclusion of the hearing the applicant made an oral application that his costs be paid by the respondent on a party-party basis, at scale. I accept that his costs incurred on this basis were $2,750.
In determining the application for costs in the circumstances of this case, I have applied the overarching purpose identified in r 1.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) so as to determine costs as quickly, inexpensively and efficiently as possible.
While the general position established by s 117(1) of the Family Law Act is that each party should bear their own costs, s 117(2) allows a court to make such costs order as it considers just if there are circumstances which justify doing so.
In considering what order for costs should be made (if any) and in what form, a court is required to have regard to the considerations set out in s 117(2A) of the Family Law Act. The relevance of the particular matters will depend on the circumstances of each case.
I accept that the applicant:
(a)Is employed and earns a modest salary of net $900 per week;
(b)Has no material savings, assets or financial resources; and
(c)Resides in rented accommodation. He does not own real property.
The respondent has elected not to engage in these proceedings. It would be a matter for her to identify her relevant financial circumstances for me to consider, and she has not done so. I have no information as to the current financial circumstances of the respondent save that she receives child support.
The applicant has been wholly successful in these proceedings. Their genesis was the respondent’s conduct in secreting her earlier-in-time marriage to Mr J from the applicant. The applicant would not have incurred the costs of this application save as to the fact of that misleading conduct. It ought not to be endorsed. This circumstance alone would justify an award of costs.
In the facts and circumstances of this case, I am satisfied that an order for costs is warranted.
I will order that the respondent pay the applicant’s costs on a party and party basis, calculated at scale in the sum of $2,750.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 10 February 2022
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