Nambisan & Nambisan (No 7)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Nambisan & Nambisan (No 7) [2024] FedCFamC1F 524

File number(s): BRC 7618 of 2021
Judgment of: WILLIAMS J
Date of judgment: 8 August 2024
Catchwords: FAMILY LAW – NULLITY – Application for decree of nullity – Application for divorce – Where the husband asserts the wife was married to another man at the time of marriage – Where the wife denies being married to another person – Decree of nullity made – Costs ordered – Application for divorce granted
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 39, 51, 55A, 102NA, 117

Family Law Act 1975 (Cth) s 121, as repealed by Family Law Amendment Act 2023 (Cth) pt XIVB

Marriage Act 1961 (Cth) s 23B

Marriage Amendment Act 1985 s 13

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Rule 8.15
Cases cited:

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)v Fish (2005) 191 FLR 294; [2005] FamCA 158

In the Marriage of I & I (No 2) (1995) 22 Fam LR 557

Massalski & Riley (No. 2) [2021] FamCAFC 152

Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157

Whisprun Pty Ltd v Dixon (2003) 234 CLR 492; [2002] HCA 48
Division: Division 1 First Instance
Number of paragraphs: 91
Date of hearing: 9 February 2024 and 22 July 2024
Place: Melbourne
Counsel for the Applicant: Mr Mould
Solicitor for the Applicant: Vernon Da Gama & Associates
Counsel for the Respondent: Mr Burns (9/2/24) and Ms Teicher (22/7/24)
Solicitor for the Respondent: Keating Avery Solicitors Pty Ltd

ORDERS

BRC 7618 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR NAMBISAN

Applicant
AND:

MS NAMBISAN

Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

8 AUGUST 2024

THE COURT ORDERS THAT:

1.The husband’s Amended Application for Nullity filed 7 February 2024 is dismissed.

2.The husband pay the wife’s costs of and incidental to the Application for Nullity fixed in the sum of $15,671, payable as follows:

(a)$9,879 subject to provision of a letter from the relevant legal aid commission, as referred to in order 3 hereof, with payment to be made to the wife’s solicitors, within 60 days of the date of these orders; and

(b)$5,792 to be paid to the wife’s solicitors, within 60 days of the date of these orders.

3.The wife do all acts and things to enable her solicitors to serve on the husband or his solicitors, a letter from the relevant legal aid commission, to the effect that payment of the costs pursuant to paragraph 2(i) of these orders, will be paid to the legal aid commission, in reimbursement of the grant of aid extended to the wife.

UPON NOTING THAT

A.The children of the marriage, as defined in s 55A(3) of the Family Law Act 1975 (Cth) (“the Act”), who have not attained the age of eighteen years are X born…

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Details
Case
[2024] FedCFamC1F 524
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia heard the application for a decree of nullity and divorce brought by Mr Nambisan against Ms Nambisan. The husband alleged that the marriage was null and void as the wife was married to another man, Mr GG, at the time of their marriage in 2006. The wife denied these claims and sought a divorce. The primary legal issue before the court was whether the marriage was valid and subsisting, or whether it was null and void due to the wife's alleged prior marriage to Mr GG. The court needed to determine the validity of the wife's marriage to Mr GG and whether this prior marriage invalidated her marriage to the husband.

The court found that the wife had not been married to Mr GG and that she had effectively ended her engagement with him in 2004. The court found the husband's evidence lacking in credibility and noted inconsistencies in his statements. The court relied on the wife's affidavit and her explanation of the circumstances surrounding the alleged engagement and marriage to Mr GG. The court was satisfied that the wife had not been married to Mr GG and that she had genuinely believed the engagement was cancelled. Therefore, the court dismissed the husband's application for a decree of nullity. The court also granted the wife's application for divorce, ordering the marriage to be dissolved on 9 September 2024. The court ordered the husband to pay the wife's costs of and incidental to the application for nullity, amounting to $15,671. The wife was also ordered to enable her solicitors to serve on the husband or his solicitors a letter from the relevant legal aid commission to the effect that payment of the costs will be paid to the legal aid commission, in reimbursement of the grant of aid extended to the wife.

The court's final orders included dismissing the husband's application for nullity and granting the wife's application for divorce. The divorce order was set to take effect on 9 September 2024. The court ordered the husband to pay the wife's costs of and incidental to the nullity application, with specific payment details provided. Additionally, the court noted that proper arrangements had been made for the care, welfare, and development of the children of the marriage.

Orders

Orders of the court

BRC 7618 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR NAMBISAN

Applicant

AND:

MS NAMBISAN

Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

8 AUGUST 2024

THE COURT ORDERS THAT:

1. The husband’s Amended Application for Nullity filed 7 February 2024 is dismissed.

2. The husband pay the wife’s costs of and incidental to the Application for Nullity fixed in the sum of $15,671, payable as follows:

(a) $9,879 subject to provision of a letter from the relevant legal aid commission, as referred to in order 3 hereof, with payment to be made to the wife’s solicitors, within 60 days of the date of these orders; and

(b) $5,792 to be paid to the wife’s solicitors, within 60 days of the date of these orders.

3. The wife do all acts and things to enable her solicitors to serve on the husband or his solicitors, a letter from the relevant legal aid commission, to the effect that payment of the costs pursuant to paragraph 2(i) of these orders, will be paid to the legal aid commission, in reimbursement of the grant of aid extended to the wife.

UPON NOTING THAT

A. The children of the marriage, as defined in s 55A(3) of the Family Law Act 1975 (Cth) (“the Act”), who have not attained the age of eighteen years are X born 2007, Y born 2011 and Z born 2012 (“the children”);

B. Section 55A(b)(i) of the Act is satisfied namely, that proper arrangements have been made for the care, welfare and development of the children.

IT IS FURTHER ORDERED THAT:

4. A divorce order to be made, to take effect on 9 September 2024, being one (1) month and one (1) day after handing down this judgment.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

By Initiating Application filed 8 July 2022 in the Family Court of Western Australia, later filed in this court on 27 October 2022, Mr Nambisan (“the applicant husband”) seeks a decree as to nullity of the marriage between him and Ms Nambisan (“the respondent wife”) solemnised in 2006. The respondent opposes the making of such a declaration and instead seeks a divorce per her Application for Divorce filed in the Family Court of Western Australia on 4 November 2020, later filed in this court on 27 October 2022. BACKGROUND The parties commenced a relationship in 2003 and married in 2006 in India. During the wedding proceedings, both parties informed the celebrant they were unmarried, as reflected in the Hindu Marriage Registration Certificate. They briefly separated in early 2018 and reconciled in mid-2018, before separating on a final basis in October 2018. Both parties filed a mutual divorce petition on 3 January 2020 at the Civil Courts of Region FF, India. The applicant husband did not appear to complete the process, so the application was dismissed, and the divorce was not finalised. Subsequently, the respondent wife filed an Application for Divorce in the Family Court of Western Australia on 4 November 2020. In her divorce application, the respondent wife details family violence proceedings on foot in India and states the parties date of separation was 27 April 2018. In his Response, the applicant husband asserts the Application for Divorce is invalid, as the applicant wife had not resided in Australia for over 24 months immediately prior to filing the application and their marriage is null and void, because the wife was still married to her former husband, Mr GG (“[Mr GG]”), at the time of the parties marriage in 2006. According to the applicant husband, the respondent wife married Mr GG in 2004, and they divorced in 2010, four years after the parties’ marriage in 2006. Contemporaneous with his Response, the applicant husband also filed an Initiating Application for nullity proceedings. The applicant husband deposes in his affidavit of 27 October 2022, that he discovered from the divorce decree and written judgment granted in favour of Mr GG, that the respondent wife had “walked away from that marriage” on or about 16 February 2005. On 15 June 2009, Mr GG filed a petition in a local district court in India seeking a divorce without mutual consent, based on cruelty and desertion. Divorce was granted in early 2010. The respondent deposes in her affidavit of 4 July 2023 that in 2004, her family and Mr GG’s family agreed for them to be engaged and participate in an arranged marriage, as is common in India. After meeting Mr GG, the respondent decided she no longer wanted to go through with the marriage, so she cancelled the engagement with the assistance of her family and has not seen Mr GG since. The respondent denies ever marrying Mr GG or engaging in any other type of Hindu marriage rite or ceremony. Further, she denies ever seeing the divorce decree prior to reading the applicants affidavit dated 7 July 2022 and asserts that she was never served with the petition for divorce despite it stating she was served “by proclamation in the [news media]”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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