Mann & Mann
[2022] FedCFamC1F 308
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:
This is an application for a declaration of nullity of marriage.
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.
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 has advised the court that he consents to the Nullity Application…
I have again today confirmed with the respondent that he consents to me granting the relief sought in the applicant’s application.
In support of her application, the Applicant relied on an affidavit which she adopted on oath on 24 November 2021.
THE LAW
A party may seek, and the Federal Circuit and Family Court of Australia (Division 1) (“the Court”) may grant, a decree of nullity where the marriage is void: s 51 of the Family Law Act 1975 (Cth).
In determining whether a marriage is void it is necessary to have regard to the relevant matters set out in s 23B of the Marriage Act 1961 (Cth) which (relevantly here) reads:
(1) A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:
(a) either of the parties is, at the time of the marriage, lawfully married to some other person;…
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.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justices Christie. Associate:
Dated: 16 May 2022
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