Monty and Villamont

[2010] FamCA 970

FAMILY COURT OF AUSTRALIA

MONTY & VILLAMONT [2010] FamCA 970

FAMILY LAW – MARRIAGE – Decree of nullity of marriage
FAMILY LAW – PROCEDURE – Dispensation of service on wife

Marriage Act 1961 (Cth) s 23B
Family Law Rules 2004 Rule 7.18

Teves v Campomayor (1995) FLC 92-578

APPLICANT: Mr Monty

RESPONDENT: Ms Villamont

FILE NUMBER: BRC 7158 of 2010

DATE DELIVERED: 11 October 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O'Reilly J

HEARING DATE: 11 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Smith

SOLICITOR FOR THE APPLICANT: Sunnybank Solicitors

THE RESPONDENT: No appearance

Orders

IT IS ORDERED

1. Service on the wife of the initiating application filed 4 August 2010 and the affidavit in support filed by leave today is dispensed with.

2. The marriage that took place between Mr Monty and Ms Villamont on … October 2007 is void.   

IT IS NOTED that publication of this judgment under the pseudonym Monty & Villamont is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7158 of 2010

MR MONTY

Applicant

And

MS VILLAMONT

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application filed on 4 August 2010 by the husband Mr Monty for a decree of nullity under the Marriage Act1961 (Cth) of the marriage between himself and Ms Villamont which took place on … October 2007.

Service

1. The application filed 4 August 2010, and the substantive supporting affidavit of the husband, which was filed by leave today, have not been served on the wife.  On 26 August 2010 Registrar Coutts ordered that service be effected of the application and then affidavit in support (earlier affidavit filed also on 4 August 2010) by 1 October 2010 and file an affidavit as to proof of service by 8 October 2010.

2. Today however the husband seeks by application in a case filed 7 October 2010 an order under Rule 7.18 of the Family Law Rules 2004 that I dispense with service on the wife. That rule provides:

   Service with conditions or dispensing with service

   7.18(1)A party who is unable to serve a document may apply, without notice, for an order:

   (a)to serve the document in another way; or

   (b)to dispense with service of the document, with or without conditions.

   7.18(2)The factors the court may have regard to when considering an application under subrule (1) include:

   (a)the proposed method of bringing the document to the attention of the person to be served;

   (b)     whether all reasonable steps have been taken to serve the document or bring it to the notice of the person to be served;

   (c)    whether the person to be served could reasonably become aware of the existence and nature of the document by advertisement or another form of communication that is reasonably available;

   (d)     the likely cost of service; and

   (e)       the nature of the case.

   7.18(3)                   If the court orders that service of a document is:

   (a)dispensed with unconditionally; or

   (b)dispensed with on a condition that is complied with;

   the document is taken to have been served.

3. In support of the application to dispense with service the husband relies on an affidavit by himself filed 7 October 2010. It deposes to the inability of the husband, and others whose assistance he has sought, to locate the wife.  The husband last saw the wife in December 2007, two months after the marriage took place. On that date, they agreed their relationship had ended.  The husband deposes that, so far as he is aware, the wife returned to the Philippines where previously she had lived. 

4. For the purpose of this application he has engaged the assistance of his niece M Monty, who lives in the Philippines, and his sister B Monty, who lives in Brisbane, to locate the wife.

5. He relies on an email 24 August 2010 from his niece M Monty saying that she had searched where the wife used to live but such was in vain, that the wife’s mother apparently had died some six months before and that the wife no longer lived in the Philippines but had left to reside in Canada.  He relies also on a statutory declaration by M Monty dated 27 September 2010 to similar effect. These documents together comprise ex 1 in the proceedings.

6. In my view, although ordinarily one would look for an affidavit by M Monty, the procedural application with which I am presently dealing allows the admission of hearsay evidence so that the form in which the husband has placed his evidence before the Court is not objectionable.

7. The husband then deposes that subsequently through Facebook and a former neighbour of the wife, it was able to be ascertained that the wife had listed herself on Facebook as living in Canada but that he has no address or any contact details of anyone in Canada who may know the wife or could locate her, and further that since August 2010 the wife’s Facebook profile has been removed.

8. The husband deposes that there are no places that he knows of where the wife could be frequenting where he could notify any persons in that place of the need to obtain her contact details.

9. He deposes that he is not in the financial position to advertise in the media in Canada for the wife’s whereabouts, and that in any event he has no idea where in Canada the wife may be residing. 

10. He says that he has been unable to attempt any formal searching for the wife as he is not able to afford to hire a private investigator or perform the necessary searches throughout Canada or elsewhere in a further attempt to find the wife.

11. He deposes, finally, that his family in the Philippines suffer from financial hardship and that he is unable to burden them with the cost of advertising or postal fees in a further effort to locate the wife.

12. I am satisfied, having regard to the evidence, that there is no proposed method of bringing the application and affidavit in support to the wife’s attention and that all reasonable steps have been taken to locate her for the purpose of service. I take into account also the likely cost of further investigation and attempted service, and the nature of the case. There is no present mechanism whereby I could be reasonably satisfied that any form of advertisement or other communication would be likely to bring the application and affidavit in support, that is the affidavit in support filed today, to the notice or attention of the wife.

13. In these circumstances I am satisfied that the steps taken are exhaustive and I will order that service on the wife of the initiating application filed 4 August 2010 and the affidavit in support filed by leave today be dispensed with. 

Grounds of nullity relied on

1. The husband relies on the ground that at the time of the of the marriage on … October 2007 the wife was lawfully married to another person. Section 23B of the Marriage Act 1961 (Cth) provides:

   Grounds on which marriages are void

   23B(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;

   …

2. The husband’s evidence includes a Marriage Certificate of the ceremony between himself and the wife on … October 2007 and three other documents, namely a Certificate of Marriage between the wife and a Mr CA on … May 1995, a Republic of Philippines National Statistics Office extract concerning the wife born … 1975 referring to her marriage on … May 1995 to Mr CA and a Republic of Philippines passport in the name of the wife born … 1975 showing a photograph identified by the husband as the woman he married on … October 2007.

3. As to whether the wife was still married to Mr CA as at … October 2007, the husband deposes that after his marriage on … October 2007 the wife returned to the Philippines as she was not permitted on her visa to stay any longer in Australia.  He then says:

   10.In or around 2008 I travelled to the Philippines on a surprise visit to the respondent.

   11.During that visit I discovered the respondent was in an intimate relationship with another man to whom she had two children.

   12.      I then discovered that the respondent was married to this man.

4. The husband further deposes that the Department of Immigration, at his request, performed a search which showed that the wife was still married to Mr CA at the time of the purported marriage on … October 2007.

5. There is no reason to doubt the husband’s documentary evidence and other evidence.

6. Accordingly, I am satisfied that at the time of the purported marriage the wife lawfully was married to another person.

7. In Teves v Campomayor (1995) FLC 92-578, Lindenmayer J said in relation to the issuing of a grant of nullity, at 81,740:

   A nullity decree is not to be granted lightly.  Moreover, the grant of a decree of nullity is not discretionary.  If the facts establish that the marriage is invalid, relief must issue.  See for example, Bell J in C & D(falsely called C) (1979) FLC 90-636 at 78,327.

8. Accordingly, I will declare pursuant to section 23B of the Marriage Act 1961 (Cth) that the purported marriage between Mr Monty and Ms Villamont on … October 2007 is void.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 11 October 2010.

Associate:     

Date:              15 October 2010