Mann & Mann

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Mann & Mann [2022] FedCFamC1F 308

File number(s): LEC 759 of 2021
Judgment of: CHRISTIE J
Date of judgment: 10 May 2022
Catchwords: FAMILY LAW – NULLITY – Where the parties were married in New Zealand – Where the wife brings forward an application for a decree of nullity –Where the application was not opposed by either party – Where the husband was legally married to another person at the time of marriage – Marriage is null and void – Decree of Nullity made  
Legislation:

Family Law Act 1975 (Cth) s 51

Marriage Act 1961 (Cth) s 23B

Cases cited: Axon v Axon (1937) 50 CLR 395
Division: Division 1 First Instance
Number of paragraphs: 12
Date of hearing: 10 May 2022
Place: Sydney
Solicitor for the Applicant: Ferguson Legal Solicitors
The Respondent: Litigant in person

ORDERS

LEC 759 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS MANN

Applicant

AND:

MR MANN

Respondent

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

10 MAY 2022

THE COURT ORDERS THAT:

1.By reason of s 51 of the Family Law Act 1975 (Cth) and s 23B of the Marriage Act 1961 (Cth), the marriage solemnised between Ms Mann and Mr Mann in 2019 is declared null and void.

2.A Decree of Nullity is made in respect of the marriage solemnised in 2019 between Ms Mann and Mr Mann.

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 Mann & Mann has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

CHRISTIE J:

  1. This is an application for a declaration of nullity of marriage.

  2. The applicant, Ms Mann (“the applicant”) filed an Initiating Application on 25 November 2021 seeking the following order:

    That the Marriage between [Ms Mann] and [Mr Mann] solemnised in 2019 in [D City], New Zealand is void on the ground that Mr Mann was lawfully married to another person at the time that the said marriage was solemnised and thus the said marriage is a nullity.

  3. Mr Mann (“the respondent”) has not filed any material in response. When the matter was referred by Maitland JR for allocation of a hearing date on 11 March 2022, the Respondent attended and Maitland JR noted:

    B. The Respondent…

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Details
Case
[2022] FedCFamC1F 308
Decision Date

CaseChat Overview and Summary

The matter before the court involved a dispute between the applicant and the respondent concerning the validity of their marriage, which took place in 2019 in D City, New Zealand. The applicant sought a declaration that the marriage was a nullity on the grounds that the respondent was still married to another individual, Ms B, at the time of the ceremony. The parties attended the Registry office in 2019, and although they were issued a marriage certificate, it inaccurately listed the respondent's relationship status as "Previously married/Dissolution of Marriage/ in 2018". Following their separation, the applicant discovered that the respondent's dissolution of marriage with Ms B occurred in early 2019, which meant the respondent was still legally married to Ms B when they married the applicant.

The court was tasked with determining the validity of the marriage between the applicant and the respondent, and whether the marriage could be declared a nullity due to the respondent's ongoing marriage to Ms B. The primary legal issue was whether the applicant had established, on the balance of probabilities, that the respondent was still married to Ms B when they entered into the marriage with the applicant. The court also had to consider the admissibility and weight of the evidence presented, particularly the letter from the New Zealand Ministry of Justice, the marriage certificate, and the respondent's concession.

In reaching its decision, the court found that the applicant had discharged the onus of proof by presenting admissible evidence to establish the facts and circumstances that the respondent was still married to Ms B in 2019. The court accepted the letter from the New Zealand Ministry of Justice, the marriage certificate, and the respondent's concession as reliable evidence to support the applicant's claim. As a result, the court found that the marriage between the applicant and the respondent was void, and it proposed to make a declaration that the marriage is a nullity. The court emphasised the importance of the applicant proving the facts and circumstances relied upon to ground the declaration, in accordance with the decision in Axon v Axon.

The court ordered that the marriage between the applicant and the respondent be declared a nullity. This decision provided the applicant with the legal recognition they sought concerning the invalidity of their marriage to the respondent. The court's ruling was based on the evidence presented and the legal principles established in Axon v Axon, ensuring that the applicant's onus of proof was met in establishing the grounds for the declaration.

Orders

Orders of the court

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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

The applicant bears the onus of proof to establish, on the basis of admissible evidence, the facts and circumstances said to ground the declaration: Axon v Axon (1937) 50 CLR 395 at [40].CONSIDERATION The applicant and respondent attended the Registry office in D City, New Zealand in 2019. At the conclusion of the ceremony they were provided with a marriage certificate which recorded the fact of their having been married at that office in 2019 (“the marriage certificate”) (Annexure A, Affidavit of Ms Mann 24 November 2021). The marriage certificate lists under the heading relationship status Bridegroom “Previously married/Dissolution of Marriage/ in 2018”. As it transpired that was not accurate. The applicant and respondent separated on 23 March 2021. Following separation the applicant made contact with the respondent’s previous spouse Ms B. Ms B sent the applicant a copy of a letter from the New Zealand Ministry of Justice. That letter made plain that the order for dissolution of marriage between the respondent and Ms B did not occur until in early 2019 with the result being that in 2019 the respondent was still validly married to Ms B. I am satisfied on the basis of the letter from the New Zealand Ministry of Justice, the marriage certificate and the concession by the respondent that in 2019 the respondent was lawfully married to another person, namely Ms B. I therefore find that the marriage to the applicant which occurred in 2019 was void and I propose to make a declaration that the marriage between the applicant and respondent is a nullity.