Mosely and Amidon
[2014] FamCA 403
•13 June 2014
FAMILY COURT OF AUSTRALIA
| MOSELY & AMIDON | [2014] FamCA 403 |
| FAMILY LAW – NULLITY – Application pursuant to Section 51 of the Family Law Act 1975 (Cth) – Mistake as to identity – No evidence on behalf of husband who it is alleged was mistaken as to the wife’s status as a single woman at time of marriage – Application dismissed |
| Family Law Act 1975 (Cth) s 51 Marriage Act 1961 (Cth) s 23B |
Otway & Otway (1987) FLC 91-807
Osman & Mouralli (1990) FLC 92-111
Zacharia & Paradisio [2008] FamCA 688
| APPLICANT: | Ms Moseley |
| RESPONDENT: | Mr Amidon |
| FILE NUMBER: | SYC | 7480 | of | 2013 |
| DATE DELIVERED: | Orders: 2 June 2014 Judgment: 13 June 2014 |
| PLACE DELIVERED: | Orders: Sydney Judgment: Parramatta |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 2 June 2014 |
REPRESENTATION
| APPLICANT: | Ms Moseley self-represented litigant |
| RESPONDENT: | No appearance |
Orders
The Application filed 17 December 2013 is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Moseley & Amidon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 7480 of 2013
| Ms Moseley |
Applicant
And
| Mr Amidon |
Respondent
REASONS FOR JUDGMENT
Introduction
On 2 June 2014 I dismissed the Applicant’s application for an annulment and indicated that I would give reasons at a later date. These are those reasons.
The Applicant, Ms Mosely, seeks an annulment of her marriage on the basis that the marriage is void.
Ms Moseley contends that the husband’s consent to the marriage was not real because the husband was mistaken as to her identity.
The husband did not appear or file a response to the Applicant’s Initiating Application, but I am satisfied that he has been served with it and I deal with the Application in the husband’s absence.
Background
The husband, who was born in 1982, and the wife, who was born in 1980, appear from immigration records to have been married in Malaysia in January 2013, though there is no translation of the extract from the marriage register attached to the Application.
According to records of the Department of Immigration and Citizenship, the husband lodged an application for a partner visa with the Australian High Commission in Malaysia on 23 April 2013. The basis of his application was that he was a spouse of an Australian citizen and otherwise met the partner criteria for this form of visa as a result of his marriage to the Applicant.
On 22 August 2013 the Applicant advised the Department that she had ceased to be in a relationship with the husband since sometime between April and July 2013.
The wife brings her application on the basis that she lied to the husband at the time of the marriage, telling him she was a single woman who had been “faithful to him for three years” and planned to spend her life with him when he moved to Australia. The wife says she was, contrary to these representations to the husband, in a relationship with another person at the time of her marriage.
The wife says that the husband married her as a result of the representations she made about her status as a single woman and her fidelity to him. On this basis, she contends he was mistaken as to her identity.
The Law
A decree of nullity can be made on the ground that the marriage is void under s 51 of the Family Law Act 1975 (Cth).
Section 23B of the Marriage Act 1961 (Cth) sets out the grounds upon which a marriage is void, including:
(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:
…
(d)the consent of either of the parties is not a real consent because:
(i)it was obtained by duress or fraud;
(ii)that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
…
Although the wife only contends that the husband was mistaken as to her identity, potentially she may have framed an application on the basis that the consent was not real because it was obtained by fraud.
The difficulty for the Applicant is that there is no evidence from the husband at all surrounding the circumstances of his marriage and, in particular, no evidence to suggest that he was mistaken about the identity of the person he was marrying.
Although the Applicant contends in her affidavit that the husband relied upon her attributes as a single and faithful woman in marrying her, there is no evidence that the husband did rely on these attributes. In any event, it has been consistently held[1] that a fraudulent misrepresentation is not enough to ground a nullity.
[1] For example, in cases including Zacharia & Paradisio [2008] FamCA 688; Otway & Otway (1987) FLC 91-807; Osman &Mouralli (1990) FLC 92-111.
In the absence of any evidence from the husband, who it is asserted by the wife was the party that was mistaken, the Application must fail.
Accordingly, the Applicant’s Application filed 17 December 2013 is dismissed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 13 June 2014.
Legal Associate:
Date: 13 June 2014
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