Mosswell and Magatjehe

[2010] FamCA 378

FAMILY COURT OF AUSTRALIA

MOSSWELL & MAGATJEHE [2010] FamCA 378

FAMILY LAW – MARRIAGE – Nullity

Family Law Act 1975 (Cth)

APPLICANT: Ms Mosswell

RESPONDENT: Mr Magatjehe

FILE NUMBER: MLC 2638 of 2010

DATE DELIVERED: 21 April 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 21 APRIL 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr McLeod, Victoria Legal Aid

THE RESPONDENT: No appearance

Orders

1. In the matter of Mosswell & Magatjehe, I make orders that the marriage performed on … February 2008 is annulled on the ground that the husband was still married to another person. 

2. I direct the registrar of the Family Court of Australia to advise the Registrar of Births Deaths and Marriages Victoria of this order.

3. I otherwise dismiss the application filed on 23 March 2010.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2638 of 2010

MS MOSSWELL

Applicant

And

MR MAGATJEHE

Respondent

REASONS FOR JUDGMENT

1. This is an application filed by Ms Mosswell who, for convenience sake, I shall refer to as “the wife.”  She filed it in this court on 23 March 2010.  She seeks an annulment of her marriage to Mr Magatjehe who, for convenience sake, I shall refer to as “the husband.”  Attached to the application is a certificate of marriage prepared under the Marriage Act 1961.  The marriage was solemnised between the parties on … February 2008.  In that certificate of marriage the conjugal status of the husband is referred to as “never validly having been married.”  The wife says that she became aware of the existence of a marriage certificate from Sri Lanka and annexed a copy of that certificate to her affidavit.  That certificate, when translated, shows that the husband was married on … June 2004 to a person other than, obviously, the wife. 

2. The certificate of marriage in Australia in 2008 indicates that he had “never been validly married” as distinct from divorced.  The wife, in her application for the marriage in 2008, showed her conjugal status as divorced.  I can therefore clearly infer that there was a discussion prior to the marriage in February 2008 as to the respective conjugal status of both parties.  Quite clearly the husband was still married at that stage because there is no evidence before me that the marriage in Sri Lanka on … June 2004 had been the subject of any divorce, nor of any annulment.  On that basis, under the Marriage Act, the husband did not have the capacity to marry.  I am satisfied on the evidence that the marriage was not valid because the husband was already married. 

3. The marriage solemnized on … February 2008 is annulled.  In respect of the service on the husband, I am satisfied that he has been validly served albeit relatively recently.  Although the application was filed on 23 March, a number of attempts were made to serve him at his employment address in L. The process server, whose affidavit I rely upon, says that he interviewed an employee of that business on 11 April 2010 and that person advised that the husband had not shown up for work and was thought not to be returning to work again, although that could not be confirmed.  The process server then attended upon the business premises again and this time served the husband personally.  At the time that service occurred, he was asked whether he was the person referred to in the documents and he confirmed that he was. 

4. He then signed an acknowledgement of service form.  Interestingly, he was asked also whether he had read the documents and he replied that he was leaving the country.  That may account for the reason why he is not here today.  The wife, who has given evidence today, has confirmed that the signature on the acknowledgment of service form is that of her husband.  I am satisfied therefore that in terms of natural justice, he has had an opportunity to be heard and has chosen not to be here today.  I have been told there has been no correspondence between the parties subsequent to the service on Monday.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  18 May 2010