MALEEKIROA & MALEEKIROA

[2009] FamCA 963

FAMILY COURT OF AUSTRALIA

MALEEKIROA & MALEEKIROA [2009] FamCA 963

FAMILY LAW – NULLITY – New Zealand marriage – Husband was already married at the time of the wedding ceremony – Whether the Court has jurisdiction to make an order – Parties resident in Australia – Whether Australian or New Zealand laws are applicable – Marriage governed by the law in the state of the ceremony – Application acceded to

APPLICANT: Ms Maleekiroa

RESPONDENT: Mr Maleekiroa

FILE NUMBER: BRC 11495 of 2008

DATE DELIVERED: 6 May 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 19 March 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Allard, Solicitor of DJ Allard & Associates appeared for the Applicant Mother

SOLICITOR FOR THE RESPONDENT: The Respondent Father appeared in person

Orders

1. A decree of nullity issue declaring the purported marriage between the parties at Auckland, New Zealand on … February 1989 null and void.

IT IS NOTED that publication of this judgment under the pseudonym Maleekiroa & Maleekiroa is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11495 of 2008

MS MALEEKIROA

Applicant

And

MR MALEEKIROA

Respondent

REASONS FOR JUDGMENT

1. On 18 December 2008 Ms Maleekiroa filed an application seeking an order that:

   “1.A decree of nullity issue in relation to the marriage between the parties at Auckland on the […] February, 1989.”

2. In an affidavit filed in support of this application the Applicant attaches a copy of the Marriage Certificate evidencing the purported marriage of the parties on that date.

3. At paragraph 5 of her affidavit the Applicant says that a few months after the ceremony she was informed by the Respondent that he was already married as at … February 1989.

4. Thereafter the Respondent undertook to have the earlier marriage dissolved.

5. Annexure B to the Applicant’s affidavit is an order dated 15 June 1990 issued from the District Court at Auckland dissolving a marriage between the Respondent and one Ms F whose then address was in New South Wales.  The date of the dissolved marriage was 19 March 1984.

6. That marriage had been solemnised in Auckland.

7. On the return date of the application the Applicant appeared with her legal representative.  The Respondent also entered an appearance.  I was presented with draft consent orders in the following terms:

   “BY CONSENT IT IS ORDERED

   1.The marriage solemnised at Auckland in New Zealand on […] February 1989 between the Applicant [Ms Maleekiroa] and the Respondent [Mr Maleekiroa] also known as […] is declared to be absolutely null and void.”

8. I heard brief evidence from each party.  The Respondent confirmed he was one and the same person referred to in both documents notwithstanding a difference in Christian names in each document.  Each party confirmed they are presently domiciled in Australia and Australian citizens.  The Respondent confirmed his correct date of birth was … May 1959 not … May 1960 which was shown on the Marriage Certificate issued for the ceremony on … February 1989.

9. The Respondent conceded the description, “Never married”, on that document was also information he had incorrectly supplied to the marriage celebrant.

10. The parties have children ranging in age from 18 years down to five years.  I am conscious that to accede to the application is to render the status of the children illegitimate.

11. The Applicant claims that she and the Respondent didn’t undertake a second marriage ceremony after the Respondent’s divorce in 1990 because “in the eyes of all people we are married”.  Despite the legal consequences of this course, it is beyond contention that the parties have lived as a married couple since

    
    

    … February 1989.

12. The current application arises as a consequence of the separation of the parties on 28 August 2006 and the desire of the Applicant to have a “complete break legally from the Respondent”.

nature of the application sought

1. It seems to me that what the parties actually seek is a decree of nullity rather than a declaration.  The declaration is sought in the draft consent orders.  The actual application as cited at the commencement of these reasons is for a decree of nullity.  I will now turn to the difficulties I raised in the course of the hearing on 19 March 2009.

2. The application is made pursuant to the original jurisdiction of the Family Court to hear matrimonial causes (see s 31 of the Family Law Act 1975 (Cth) (“the Act”)). Section 4 of the Act defines matrimonial causes to include (in subsection (a)(ii)) “a decree of nullity of marriage”.

3. Confusion arises, however, when regard is had to the draft consent orders prepared by the solicitor for the Applicant.  The draft orders attached read:

   “The marriage solemnised at Auckland in New Zealand on […] February, 1989 between the Applicant [Ms Maleekiroa] and the Respondent [Mr Maleekiroa] also known as […] is declared to be absolutely null and void.”

4. Aside from the obvious redundancy in the use of the phraseology “absolutely null and void” (emphasis added), the consent orders appear to be seeking a declaration as to the validity of an annulment of marriage rather than an order of nullity.  Such a declaration would arise pursuant to the powers espoused in

   
   

   s 113 to make declarations, rather than s 51.

5. At the conclusion of the hearing on 19 March 2009 I invited the legal representative for the Applicant to make further written submissions within seven days.  I outlined my difficulties with the application, including whether this Court has jurisdiction to hear the matter; whether to apply Australian or New Zealand law; what the law in New Zealand is; and the discrepancies in orders sought.  By correspondence dated 24 March 2009 Mr Allard declined to make any such written submissions.

6. It seems to me that what the parties actually seek is a decree for nullity rather than a declaration.  I now turn to the difficulties I have raised.

Jurisdiction

1. As the parties were married and domiciled in New Zealand at the time of the marriage, question may be raised as to the jurisdiction of this Court to hear the matter.

2. Section 39(4) of the Act states that an application may be made by an Australian citizen or if the parties are resident in Australia.

3. In this case the parties are both now Australian citizens and are resident in Australia. 

4. Question may be raised, however, of whether a determination of this Court is necessary at all.  The recognition of a foreign marriage in Australia is governed by the Marriage Act 1961 (Cth). Section 88D states that marriages to which the Part applies are to be recognised as valid in Australia. Those marriages include (as per s 88C) marriages solemnised in a foreign country where that marriage was valid under the local law. It follows, then, that an invalid marriage in New Zealand will not be recognised as valid in Australia at all.

5. Marriage in New Zealand is governed by the Family Proceedings Act 1980 (NZ). Section 31 deals with the grounds on which a marriage is void ab initio. It reads:

   “(1) A marriage or civil union that is governed by New Zealand law shall be void ab initio (where or not an order has been made declaring the marriage or civil union to be void) only where—

   (i) at the time of the solemnisation of the marriage or civil union, either party was already married or in a civil union; or…”

6. I will note, as a matter of course, that the Family Proceedings Act 1980 (NZ) may be relied upon by this Court pursuant to s 40 of the Evidence and Procedure (New Zealand) Act 1994 (Cth).

7. Alternatively, s 88D(2) of the Marriage Act states that a marriage will not be recognised if either of the parties, at the time, were in a marriage that would be recognised as valid in Australia.  That is to say that if the Respondent’s first marriage was valid in New Zealand, and therefore Australia, the parties’ marriage would not be recognised anyway.

8. It follows, then, that I need only be satisfied that the Respondent was already married at the time of his marriage ceremony to the Applicant.

9. I am satisfied that the divorce certificate issued on 15 June 1990 is evidence of the Respondent already being married on … February 1989.  It follows, then, that by virtue of s 88D the marriage will not be recognised as valid in Australia.  This begs the question of whether an Australian decree of nullity is necessary or desirable for the Applicant.

decree of nullity

1. As the Court has jurisdiction to hear the matter it follows that, should it be of benefit to the parties, for whatever reason, for relief to be granted the Court should make orders where it is able.  The Applicant has given her reasons why it is she seeks the orders that she does.  She may wish to marry at some time in the future and does not want any legal impediment to arise by virtue of the existence of the New Zealand Marriage Certificate purporting to evidence a marriage on … February 1989.  The question therefore becomes whether to apply Australian or New Zealand law in determining the question of nullity.

2. Law to be applied is dealt with in s 42 of the Act which states that:

   “(1) The jurisdiction conferred on a court, or with which a court is invested, by this Act shall be exercised in accordance with this Act and the applicable Rules of Court.

   (2) Where it would be in accordance with the common law rules of private international law to apply the laws of any country or place (including a State or Territory), the court shall, subject to the provisions of the Marriage Act 1961, apply the laws of that country or place.”

3. The Hague Convention on Celebration and Recognition of the Validity of Marriage, which Australia ratified in 1994, states in Article 2 that the formal requirements for marriage will be governed by the law of the State of Celebration.  In this case, New Zealand law would apply and, as has already been canvassed, the marriage would be considered void.

4. There is only one ground for a decree of nullity in the Act, namely that the marriage is void (s 51). The Act is silent on the meaning of the term void.

5. Regard must therefore be had to s 23B of the Marriage Act 1961, which outlines the grounds on which a marriage will be considered void. Subsection (1)(a) states a marriage will be void where:

   “either of the parties is, at the time of the marriage, lawfully married to some other person;…”

6. As this provision has been satisfied, it follows the marriage was at all times void. It follows that the ground for a decree of nullity outlined in s 51 of the Act has been satisfied. I will therefore accede to the application. Notwithstanding the terms of the signed consent an order will issue in terms of the application as filed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.

Associate: 

Date:  6 May 2009