LIN & NICOLL - [2016] FamCA 401

FAMILY COURT OF AUSTRALIA

LIN & NICOLL

[2016] FamCA 401

FAMILY LAW – PRACTICE AND PROCEDURE – validity of marriage – where the parties are of South East Asian descent – where the wife brings the application but it is opposed by the husband – where the marriage is valid and a divorce is granted.

Family Law Act 1975 (Cth) s 113
Marriage Act 1961 (Cth) s 88C, 88E

Bahn & Bahn (1981) FLC 91-010
Hooshmand & Ghasmezadegan (2000) FLC 93-044
Jacombe v Jacombe (1961) 105 CLR 355
Lester & Lester (2007) FLC 93-308
Milder v Milder [1959] VR 95
Nygh & Kasey [2010] FamCA 145
Savenis v Savenis [1950] SASR 309
Vordermaier & Vordermaier [2007] FamCA 1700
X & X (1983) FLC 91-306

APPLICANT:

Ms Lin

RESPONDENT:

Mr Nicoll

FILE NUMBER:

ADC

3832

2015

DATE DELIVERED:

26 May 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Justice Dawe

HEARING DATE:

8 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Koziol

SOLICITOR FOR THE APPLICANT:

BK Legal

COUNSEL FOR THE RESPONDENT:

n/a

SOLICITOR FOR THE RESPONDENT:

In Person

Orders

I declare that the marriage of Ms Lin and Mr Nicoll in 1978 in South East Asia was valid.
I find that the parties are domiciled in Australia and are citizens of Australia.
I find the ground of irretrievable breakdown established.
I pronounce a divorce order of dissolution of marriage to become effective in one month’s time.
I declare that there are no children of the marriage who have not already attained the age of 18 years.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lin & Nicoll 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 ADELAIDE

FILE NUMBER: ADC 3832 of 2015

Ms Lin

Applicant

And

Mr Nicoll

Respondent

REASONS FOR JUDGMENT

Introduction

By way of Application for Divorce filed 8 October 2015 Ms Lin (“the wife”) seeks a grant of divorce finalising the marriage between herself and Mr Nicoll (“the husband”). I will refer to the parties as “husband” and “wife” however there is no significance attached to my use of this terminology and I do so purely for convenience.
By way of Response to Divorce filed 3 November 2015 the husband seeks that the wife’s application be dismissed. It is his position that a marriage was not solemnised.
In order to grant the divorce the Court must be satisfied that the parties are validly married.
The application was heard before me on 8 April 2016. On that occasion the wife was represented by Mr Koziol of counsel and the husband appeared in person.
The wife sought to rely upon her Application for Divorce filed 8 October 2015, the affidavit of the wife filed 8 October 2015 and 24 March 2016 and the affidavit of Ms B filed 1 February 2016.
I was also assisted by the wife’s Case Outline document.
The husband sought to rely…

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 LIN & NICOLL

Details

AGLC: LIN & NICOLL [2016] FamCA 401
Case: [2016] FamCA 401
Decision Date: 26 May 2016

CaseChat Overview and Summary

In the matter of *Lin & Nicoll*, heard before Justice Dawe, the dispute concerned the validity of a marriage and the grounds for its dissolution. The parties, Ms Lin and Mr Nicoll, sought a divorce order.

The court was required to determine whether the marriage, solemnised in South East Asia in 1978, was valid according to Australian law. Further, the court needed to ascertain the domicile and citizenship of the parties, and whether the marriage had irretrievably broken down, as required for a divorce order under the *Family Law Act 1975* (Cth). The court also had to confirm the absence of any children of the marriage under the age of 18.

Justice Dawe found that the marriage of Ms Lin and Mr Nicoll in 1978 was valid. The court also determined that both parties were domiciled in and citizens of Australia. Crucially, the court found that the ground of irretrievable breakdown of the marriage was established.

Consequently, Justice Dawe pronounced a divorce order for the dissolution of the marriage, which was to become effective one month from the date of the order. The court further declared that there were no children of the marriage who had not already attained the age of 18 years.

Orders

Orders of the court

I declare that the marriage of Ms Lin and Mr Nicoll in 1978 in South East Asia was valid.

I find that the parties are domiciled in Australia and are citizens of Australia.

I find the ground of irretrievable breakdown established.

I pronounce a divorce order of dissolution of marriage to become effective in one month’s time.

I declare that there are no children of the marriage who have not already attained the age of 18 years.

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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