Meena & Meena

[2021] FamCA 161

FAMILY COURT OF AUSTRALIA

Meena & Meena [2021] FamCA 161

File number(s):

DGC 371 of 2019

Judgment of:

MACMILLAN J

Date of judgment:

26 March 2021

Catchwords:

FAMILY LAW – NULLITY – where the applicant sought a decree of nullity – where this application was not opposed by the respondent – where the parties agree that at the time of their marriage the respondent was already married – where a declaration is made that the parties marriage is null and void.

FAMILY LAW – JURISDICTION – Transferred Proceedings – where parenting and property proceedings were conducted in the Federal Circuit Court of Australia – where proceedings were transferred due to the fact that the Federal Circuit Court does not have jurisdiction to make a decree of nullity.

FAMILY LAW – COSTS – where the applicant sought that the respondent pay her costs of the proceedings – where the proceedings were brought about by the conduct of the respondent – where the costs sought by the wife are not reasonable – where costs are ordered to be paid in a fixed sum.

Legislation:

Family Law Act 1975 (Cth) s 117

Marriage Act 1961 (Cth) s 23(1)(a)

Family Law Rules 2004 (Cth) r 19.18

Cases cited:

In the marriage of T & T (1984) FLC 91-588

Number of paragraphs:

20

Date of hearing:

23 March 2021

Place:

Melbourne

Counsel for the Applicant:

Mr Smith

Solicitor for the Applicant:

Fernandez & Johnson

Counsel for the Respondent:

Ms Ferrari

Solicitor for the Respondent:

Elvin Lawyers

ORDERS

DGC 371 of 2019
BETWEEN:	MS MEENA Applicant
AND:	MR MEENA Respondent

ORDER MADE BY:	MACMILLAN J
DATE OF ORDER:	26 MARCH 2021

THE COURT ORDERS THAT:

1.The marriage solemnised at C Street in 2015 between Ms Meena and Mr Meena is declared to be absolutely null and void.

2.By 4.00 pm on 10 May 2021 the respondent pay the wife’s costs fixed in the sum of $2000.00.

3.All extant application are otherwise dismissed and removed from the list of cases awaiting hearing.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

MACMILLAN J

1. Proceedings were commenced by the respondent to this application (the “respondent”) in the Federal Circuit Court of Australia (“Federal Circuit Court”) on 11 February 2019. On 20 October 2020 the applicant for the purposes of this application (“the applicant”) filed an Amended Response to the respondent’s substantive application in which she sought a decree of nullity. On 20 November 2020, the Federal Circuit Court not having jurisdiction to make a declaration of nullity, Judge Stewart transferred the application for a decree of nullity to this Court. On 9 February 2021 Registrar Moser listed the matter for hearing before me in the Judicial Duty List. The respondent did not oppose the applicant’s application for a decree of nullity but did oppose the applicant’s application that he should pay the applicant’s costs of and incidental to the application for a decree of nullity or in the event that the Court was of the view that an order for costs was justified disputed the quantum of those costs.

2. The respondent having already been married and not having obtained a divorce, the ground the applicant relies upon is bigamy.

   Background

3. The applicant in this case is 41 years of age and is employed as a consultant. The respondent is 42 years of age and is a manager.

4. The applicant’s evidence is that she and the respondent commenced cohabitation in 2013 participating in a religious ceremony of marriage in India in 2015. The respondent’s evidence is that they met in January 2014 not 2013 and did not commence cohabitation until after their marriage. Nothing turns on this factual dispute. The applicant and the respondent separated on 11 February 2019. There is one child of their relationship who is 4 years of age. The child lives with the applicant and spends time with the respondent.

5. It is now clear that that at the time of the religious ceremony of marriage the respondent was married to another person. They were married in Australia in 2013 and a divorce order was not made by the Federal Circuit Court until mid-2018, coming into effect a month later.

6. The respondent’s evidence is that he discovered that his wife had been unfaithful which lead to their separation a matter of days after their marriage. He further deposes that their marriage was unconsummated and that he:

   … felt ashamed and embarrassed of this union and Ms D’s unfaithfulness. I was deeply concerned of the cultural ridicule that would follow. As a coping mechanism for the humiliation I felt, and with a complete misunderstanding of the significance of the marriage, I turned my mind away from these matters and attempted to move on with my life.

7. It was the wife of the respondent who filed for divorce. Whilst the applicant makes allegations about the respondent’s conduct during his marriage to the other person they are contained in an Affidavit that was filed the day before the hearing and the respondent has not had the opportunity to respond to the allegations she makes. They are in any event not relevant to the Court’s determination of the application for a decree of nullity.

   Legal Principles

8. Pursuant to s 23(1)(a) of the Marriage Act 1961 (Cth) (“Marriage Act”) a marriage is void if either of the parties to that marriage was married to another person at the time of the marriage. I am satisfied in this case that the respondent in this case was legally married to another person when he purported to marry the applicant in this case in a religious ceremony in 2015. Both the marriage certificate and the divorce order were in evidence before me.

9. It is an offence pursuant to s 94 of the Marriage Act for a person who is already married to go through a ceremony of marriage with another person. The Full Court In the marriage of T & T (1984) FLC 91-588 said with respect to an offence having been committed as follows:

   …In our opinion there can be no doubt (leaving aside any statutory prohibition) that where the evidence or other material discloses breaches of Commonwealth laws a judge…exercising jurisdiction under the Family Law Act 1975 is entitled to bring these breaches to the notice of the Commonwealth Attorney-General.

10. Although the Court is entitled to refer a breach to the Commonwealth Attorney-General it is not required to do so and before doing so must consider the seriousness of the breach and the facts of the particular case. Although bigamy is a serious offence and if convicted the respondent could face a sentence of up to 5 years I have had regard to the respondent’s evidence as to the cultural shame associated with the breakdown of that marriage and his failure, having moved on with his life, to appreciate the significance of that marriage or the need to obtain a divorce before participating in a marriage ceremony with the applicant. Although in her most recent Affidavit the applicant is critical of the respondent she does not take issue with this aspect of the respondent’s evidence. Accepting that the respondent now understands the significance of his actions and regrets his failure to obtain a divorce, matters which would militate against a custodial sentence even if he was to be convicted, I do no propose to refer the matter to the Attorney-General.

    Costs

11. The applicant seeks and order that the respondent pay her costs in the sum of $4617.50. Counsel for the applicant submitted that she would agree to a stay of those costs for 30 days. The respondent opposed there being any order for costs and in the event of an order being made challenged various items claimed by the applicant.

12. The general rule is that parties to proceedings in this Court bear their own costs [s 117(1) of the Family Law Act 1975 (Cth) (the “Act”)]. Pursuant to s 117(2) of the Act the Court may make an order for costs if it is satisfied that there are circumstances that justify it doing so. In considering what order if any should be made the Court must have regard to the matters in s 117(2A) of the Act. The relevance of the particular matters will depend on the circumstances of each case.

13. Neither party in this case is in receipt of legal aid. Both parties in this case are in employment and although it appears that the respondent used to earn more than the applicant his income has been reduced as a result of the COVID-19 pandemic. In my view the financial circumstances of the parties are neither a reason for making an order nor a reason why an order should not be made.   

14. Although the applicant relied upon the respondents conduct in support of her application for costs, in particular his failure to produce a copy of his marriage certificate or the certificate of divorce, the respondent set out in some detail the attempts that he made to obtain those documents in order to comply with the order requiring them to be produced. I am not satisfied that in these circumstances his conduct would support an order for costs. The applicant also referred to the respondent’s failure to provide financial disclosure however in my view that is not a relevant factor for the purposes of this application.

15. The proceedings were not necessitated by the respondents failure to comply with previous orders, and there have been no offers in writing to settle the proceedings that would be relevant for the purposes of this application which required the court whether by consent or otherwise to make a declaration of nullity.

16. Finally it was submitted on behalf of the applicant that the respondent, having consented to the application, had been wholly unsuccessful. Whilst I do not accept that he has on this basis been wholly unsuccessful it is the case that the application to this Court for a declaration of nullity was a direct result of the respondents conduct and in my view is a circumstance that would justify the Court making an order for costs. 

17. Pursuant to Rule 19.18 of the Family Law Rules 2004 (Cth) (“the Rules”), the Court being satisfied that there are circumstances which justify the Court making an order; may make an order that a party is entitled to costs of a specific amount, as assessed on a particular basis, to be calculated in accordance with the method stated in the order or as assessed. The matters the court may consider are set out in r 19.18(3) of the Rules.

18. The Federal Circuit Court not having the jurisdiction to make a declaration of nullity any application needed to be filed in this Court and in my view the costs associated with the applicant having filed her application in the Federal Circuit Court and the transfer of the application to this Court are not costs the respondent should be required to bear. If the applicant had filed her application in this Court it would not have been necessary for there to be a hearing in the Federal Circuit Court for the transfer of the matter or before the Registrar following the transfer.

19. I also do not accept that given the issue in this case the amounts charged for perusing the documents, “chasing” documents or the outline of case are reasonable.

20. In all of the circumstances I propose to fix the costs in the sum $2000. I will allow the respondent 45 days in which to pay those costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Macmillan.

Associate:

Dated:       26 March 2021