MEHRA & BOSE
[2012] FamCA 164
•12 March 2012
FAMILY COURT OF AUSTRALIA
| MEHRA & BOSE | [2012] FamCA 164 |
| FAMILY LAW - NULLITY – where the parties were already married at the time of their marriage in Australia – found Australian marriage not a valid marriage FAMILY LAW - COSTS – between parties – where husband maintained proceedings from July 2011 in full understanding that the Australian marriage was not a valid marriage – orders for husband to pay wife’s legal costs of $4,000 |
| Family Law Act 1975 (Cth) s 117(2A) Marriage Act 1961 (Cth) s 113 |
| APPLICANT: | Mr Mehra |
| RESPONDENT: | Ms Bose |
| FILE NUMBER: | SYC | 1119 | of | 2010 |
| DATE DELIVERED: | 12 March 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 12 March 2012 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | In Person |
| SOLICITOR FOR THE RESPONDENT: | Salvos Legal (Humanitarian) Ltd |
Orders
That the application for dissolution of marriage filed 24 February 2010 be dismissed.
That the divorce order made 8 April 2010 be set aside.
That the husband pay to the wife’s solicitors the sum of $4,000 by way of costs within three months of this date.
That any application outstanding be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Mehra & Bose is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 1119 of 2010
| Mr Mehra |
Applicant
And
| Ms Bose |
Respondent
REASONS FOR JUDGMENT
In the matter of Mehra & Bose, the proceedings before the court concern the validity of a marriage entered into between Mr Mehra, the husband, and Ms Bose, the wife, in September 2005 in Victoria, Australia.
It is not disputed that in May 2004 in India, the husband and the wife were married according to Indian law. It is not disputed that that marriage is a valid marriage.
After the marriage in India, the parties came to Australia and celebrated, again, their marriage. The provisions relating to second marriage ceremonies are contained in section 113 of the Marriage Act 1961 (Cth) and provide specifically in section 113(1)(a): “Persons who are already legally married to each other shall not, in Australia or under Part V, go through a form or ceremony of marriage with each other”.
By virtue of the provisions of section 113(1)(a) of the Marriage Act, the marriage ceremony which was entered into between the husband and the wife in Australia in September 2005 did not constitute a valid marriage. In those circumstances, I will dismiss the application for dissolution of marriage filed by the husband on 24 February 2010, and I will vacate the order for divorce previously made in these proceedings.
The wife, through her lawyers, seeks an order that the husband pay costs of the proceedings estimated to be $4000. The application is governed by the provisions of section 117(2A) of the Family Law Act 1975 (Cth).
I am firstly required to have regard to the financial circumstances of the parties to the marriage. The wife is represented in these proceedings by Salvos Legal (Humanitarian) Ltd which is the Legal Aid arm of The Salvation Army.
The Salvation Army is a religious and charitable not-for-profit organisation. I am advised by the wife’s solicitor, Ms Jarvis, that the wife has met the means test for representation by that organisation. The husband is employed by the Australian government. He tells the Court that he receives a salary of $72,000 per annum, plus subsidised rent through a government employee’s housing scheme. His financial position is therefore superior to that of the wife.
The next matter that I am required to consider is whether any party to the proceedings is in receipt of legal aid. As I have said, the wife is in receipt of the equivalent of legal aid from the Salvation Army.
But as it is pointed out by Ms Jarvis, and as I accept, the resources of The Salvation Army, which could otherwise have been used to assist other persons in need of assistance, have been taken up in assisting the wife in these proceedings. I do not consider that the fact that she is in receipt of assistance from the Salvation Army a bar to my making an order for costs which will be paid to, and utilised by that organisation for the representation of other eligible people.
As to the conduct of the proceedings which I will consider in conjunction with the fact that the husband has been wholly unsuccessful in the proceedings, the proceedings arise out of the parties having married twice, once in India and once in Australia.
Whilst there may have been a time when there was a genuine dispute about the validity of the marriage in India, that must have come to an end by 29 July 2011, when the husband proposed consent orders which acknowledged that, according to Australian law, the Hindu ceremony constituted a valid marriage and therefore, pursuant to the proceedings of the Marriage Act, the Australian marriage was not a valid marriage. There was some negotiation between the parties about the precise terms of the orders which would be made. The wife’s lawyers’ drafting of the orders was not accepted by the husband.
The matter then came before the Court in November 2011 and the husband sought further time to comply with directions to have the matter ready for hearing. In November of 2011, the husband filed an application in a case and an affidavit in support, maintaining, still, that the Indian marriage was not a valid marriage. The matter came before the Court again on 22 November 2011 and was adjourned until 19 December 2011, before me. On that day, I gave the husband a further opportunity, despite the fact that he had been given full opportunity after the hearing on 9 and 10 June 2011, to provide all evidence upon which he sought to rely. I listed the matter for hearing before me today.
On 21 February 2012, the husband filed an application in a case in which he sought an order that the divorce order made by Registrar Cater-Smith be rescinded, that the application for divorce filed by him on 24 February 2010 be withdrawn and an order to be made by consent that the marriage solemnised in Victoria in September 2005 between the parties was not a valid marriage by virtue of the provisions of section 113 of the Marriage Act 1961 (Cth).
The husband has maintained these proceedings, at least since July 2011, in the full understanding that the marriage which was solemnised in Australia was not a valid marriage. By doing so he has caused the wife to expend legal costs unnecessarily, including attending at Court today prepared for a defended hearing albeit that the husband had filed his amended application. In the circumstances, it is my view that the husband should pay the costs which have been thrown away.
In a letter to the husband sent on 14 December 2011, the wife’s legal representatives indicated to the husband that their estimate of the costs thrown away at that time was $4000.
Since that time, the matter has come before me on two further occasions, on today’s occasion, the matter being listed for hearing. I consider that the wife’s solicitor’s estimate of $4,000 as being the costs thrown away is reasonable and I will make an order that the husband pay those costs.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 12 March 2012.
Associate:
Date: 20 March 2012
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