LU & CHANG

[2014] FamCA 614

FAMILY COURT OF AUSTRALIA

LU & CHANG [2014] FamCA 614

FAMILY LAW – NULLITY – marriage declared null and void – respondent legally married at time of marriage to applicant – papers referred to the appropriate authority.

FAMILY LAW – CHILDREN – Best interests – Applicant to have sole parental responsibility

Family Law Act 1975 (Cth)
Marriage Act 1961 (Cth)

APPLICANT: Ms Lu

RESPONDENT: Mr Chang

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 490 of 2014

DATE DELIVERED: 8 May 2014

PLACE DELIVERED: Melbourne

PLACE HEARD:

JUDGMENT OF: Johns J

HEARING DATE: 8 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

In all of the circumstances, I propose to make the necessary orders for the referral of this matter to the Attorney-General’s Department.  The orders that I, therefore, will make are as follows.

1. That the marriage solemnised in Country B between the applicant and the respondent on 20 March 2012 is declared null and void absolutely.

2. That a sealed copy of these orders, certified copy of the transcribed Reasons for Judgment delivered this day, a sealed copy of the applicant’s Initiating Application filed 22 January 2014, and the applicant’s affidavit in support thereof filed 22 January 2014 and any other documents which may be considered relevant be referred to the Chambers of the Chief Justice of the Family Court of Australia for referral to the appropriate authorities of the Commonwealth of Australia for consideration of prosecution of the respondent for reach of s 94 of the Marriage Act1961 (Cth).

3. That the applicant have sole parental responsibility for the child C born … 2012.

4. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

5. That the applicant cause a sealed copy of these orders and the transcribed reasons for judgment to be served upon the respondent by email directed to him at …

6. That all extant applications be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lu & Chang 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 MELBOURNE

FILE NUMBER:  MLC 490 of 2014

Ms Lu

Applicant

And

Mr Chang

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In the matter of Lu and Chang, I have before me today in a duty list an application by the applicant in respect to two matters.  The first matter raised by her initiating application, filed on 22 January 2014, is the question of whether or not I should make a declaration that the marriage between she and the respondent is null and void.  The second matter relates to parental responsibility with respect to the parties’ child, C, who was born in 2012.

2. The applicant brings these matters to the Court through her initiating application filed on 22 January 2014.  That application is supported by the applicant’s affidavit, sworn on 15 January 2014 and filed on 22 January 2014.  In addition, the applicant has provided an affidavit in relation to the non-filing of a family dispute resolution certificate.  That document was also filed on 22 January 2014.

3. Those documents were served on the respondent by email sent on 27 February 2014.  The service by email was effected in accordance with orders made by Registrar Field on 19 February 2014.  The applicant has caused an affidavit of service attesting to the fact of service to be filed on 6 March 2014.  I am satisfied, on the basis of that affidavit, that the applicant has attended to service as directed and ordered by Registrar Field.

4. The background to the matter is as follows.  The parties commenced co-habitation in November 2011.  They married in Country B in 2012, and separated in May 2013.  In her affidavit filed 22 January 2014 the applicant deposes that following her marriage to the respondent she was informed by him that he was married to another woman, Ms D, who is resident in Country B.  Following the parties’ separation, the applicant received a copy of a divorce order in relation to the respondent’s marriage to Ms D.  That divorce order is annexed to the applicant’s affidavit at ML 2.

5. That divorce order, which was made in the Federal Magistrates Court of Australia, records that the marriage between the respondent and Ms D was solemnised on in 2010.  The divorce order was pronounced to take effect on 20 April 2013.  Annexure ML 1 to the applicant’s affidavit is the marriage certificate related to her marriage to the respondent.  That marriage certificate reflects the fact that the applicant and the respondent married in Country B in 2012.  It is evident from the divorce order in relation to the marriage of the respondent and Ms D that, at the time of the respondent’s marriage to the applicant, he was already married to Ms D.

6. Section 23B of the Marriage Act 1961 provides as follows:-

   that a marriage to which this division of the Act applies that takes place after the commencement of section 13 of the Marriage Act 1985 is void where

   (a) either of the parties is, at the time of the marriage, lawfully married to some other person. 

7. I am satisfied on the basis of the evidence contained in the applicant’s affidavit that the respondent was lawfully married to another person, that marriage not having been dissolved, at the time he purported to marry the applicant.  Accordingly, I am satisfied that the ground of nullity is established.

8. As a consequence, I will make the necessary declaration as sought by the applicant. 

9. In addition to her application for nullity, the applicant also seeks an order with respect to parental responsibility of the parties’ child, C, who was born in 2012, and is aged approximately 20 months.  The applicant details in her affidavit, the circumstances in relation to the respondent’s involvement with the care of the child.  The applicant deposes that the respondent has returned to live in Country B, where he has resided since March 2013, when the child was approximately four months old.

10. The respondent has not provided any financial support for the child and the applicant deposes that he has shown little interest in the child’s welfare.

11. I am satisfied that the respondent has been served with this application.  He has been directed to file a response and responding affidavit material.  He has not complied with those orders, which were made on 19 February 2014.  There is no indication from the respondent which demonstrates any intent to be involved in any meaningful way in the child’s life. 

12. Section 61DA of the Family Law Act 1975 (Cth) provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal, shared parental responsibility for the child. Section 61DA(4) of the Act states that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal, shared parental responsibility for the child.

13. I am satisfied that in circumstances where the respondent has had no involvement with the child’s care, welfare or development since he was four months of age, where the respondent is continuing to live in Country B, where he has been served with the application and is on notice of the orders that are sought in relation to the child and has not sought to participate in these proceedings related to the child’s welfare, that the presumption with respect to equal, shared parental responsibility, is rebutted.

14. I am satisfied that it is in the child’s best interests that orders be made that provide that the applicant mother have sole parental responsibility for the child. 

15. As I propose to make a declaration of nullity, I must consider whether or not it is appropriate that these proceedings be referred to the Attorney-General’s Department for consideration. 

16. Bigamy is a criminal offence.  The respondent provides no information or explanation for his conduct.  On the face of the material before me, it is evident that he was lawfully married to another person at the time he entered into the marriage with the applicant. Accordingly I propose to refer the papers to the relevant authorities for consideration.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 8 May 2014.

Associate:

Date:  8 May 2014