Latu & Fonua

Case [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:

  1. Mr Latu (“the applicant”) seeks a decree of nullity for his marriage to Ms Fonua (“the respondent”) on 25 June 2019.

  2. 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

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Latu & Fonua [2022] FedCFamC1F 49
Case
[2022] FedCFamC1F 49
Decision Date

CaseChat Overview and Summary

In the matter of Latu and Fonua, the applicant sought a declaration of nullity of his marriage to the respondent on the basis that the marriage was void as the respondent was already married to another man at the time of their marriage. The applicant and respondent, both New Zealand citizens, had a child together and were married in 2019 in Australia after a period of separation. The applicant discovered that the respondent was already married to another man, Mr J, and had not divorced him prior to marrying the applicant. The Federal Circuit and Family Court of Australia was required to determine whether the marriage was void ab initio and, if so, to make a declaration of nullity and order costs.

The court found that the respondent was indeed lawfully married to Mr J at the time of her marriage to the applicant and that she had not divorced Mr J before marrying the applicant. The court determined that there was no evidence that the applicant was aware of the respondent’s prior marriage at the time of their marriage. The court held that the marriage was void as the respondent was already validly married to another person. The court declared the marriage null and void and ordered that the respondent pay the applicant’s costs on a party and party basis, calculated at scale in the sum of $2,750. The court found that the applicant’s success in these proceedings was due to the respondent’s misleading conduct and that an award of costs was warranted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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)

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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