Mavey and Colls

[2018] FamCA 203

FAMILY COURT OF AUSTRALIA

MAVEY & COLLS [2018] FamCA 203

FAMILY LAW – NULLITY – application for declaration of nullity of marriage –Where at the time of the marriage ceremony the respondent was already married – Where it is found that the marriage was therefore void – Application for Decree of Nullity granted

Family Law Act 1975 (Cth) Marriage Act 1961 (Cth)
APPLICANT:	Ms Mavey

RESPONDENT: Mr Colls

FILE NUMBER: BRC 11971 of 2017

DATE DELIVERED: 3 April 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 3 April 2018

REPRESENTATION

The Applicant appeared in person

No appearance by the Respondent

Orders

1. That a Decree of Nullity is made in respect of the marriage solemnised on … 2014 between the Applicant MS MAVEY and the Respondent MR COLLS.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mavey & Colls has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11971 of 2017

Ms Mavey

Applicant

And

Mr Colls

Respondent

REASONS FOR JUDGMENT

Introduction

1. By s.23(1) of the Marriage Act 1961 (Cth), a marriage is void where “either of the parties was, at the time of marriage, lawfully married to some other person.”

2. The Applicant Ms Mavey says in her Affidavit filed 10 November 2017 that:

   a)in  2014 at the B Church, Suburb C her marriage to the Respondent, Mr Colls, was duly solemnised; and

   b)subsequent to the said marriage the Applicant became aware that in 2003 in City D, New Zealand the Respondent had married Ms E;

   c)she confronted the Respondent after she discovered emails he was still married, and he admitted that was the case; and

   d)she assisted the Respondent to obtain a certified copy of the New Zealand Marriage Certificate (Annexure “B”) to support an Application by the Respondent to the Family Court of Australia for a Divorce from Ms E (Annexure “C”) on the basis that he had separated from Ms E on 9 February 2013.  A copy of the Application for Divorce appears to be signed by both the Respondent (on 22 November 2014) and Ms E (on 2 January 2015).  Court records reveal that a Decree of Divorce was made on 27 May 2015.

3. I am satisfied that the Respondent was served personally with the Applicant’s Application seeking a Decree of Nullity, on 24 November 2017 and that the Respondent signed an Acknowledgment of Service.  No Response opposing the Application filed 10 November 2017 was filed.  The Application enlivens the Court’s jurisdiction under s.51 of the Family Law Act 1975, and as I am satisfied that the marriage is void, a Decree of Nullity should issue.

4. I so order.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 3 April 2018.

Associate: 

Date:  3 April 2018