Nambisan & Nambisan (No 7)
[2024] FedCFamC1F 524
•8 August 2024
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Family Law Act 1975 (Cth) s 121, as repealed by Family Law Amendment Act 2023 (Cth) pt XIVB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 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nambisan & Nambisan has been approved pursuant to s 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILLIAMS J
INTRODUCTION
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]”.
On 17 October 2022, orders were made by Justice Tyson of the Family Court of Western Australia transferring the divorce and nullity proceedings to this Court.
The trial commenced before me on 22 August 2023, however, was adjourned to 17 November 2023 as the wife was not represented at the time which presented issues with s 102NA due to allegations of family violence. The November 2023 listing was subsequently vacated due to judicial unavailability and proceeded on 9 February 2024. The hearing was finalised on 22 July 2024.
Documents relied upon by the parties
The applicant husband relies upon the following documents:
(i)Amended Initiating Application for nullity filed 7 February 2024;
(ii)Response to an Application for Divorce filed 27 October 2022;
(iii)Affidavit of the husband and annexures filed;
(A)5 January 2024.
(B)12 September 2023;
(C)30 April 2023;
(D)27 October 2022; and
(E)23 September 2021;
(iv)Affidavit of Ms HH (Translator) filed 7 February 2024;
(v)Outline of Case document filed 7 February 2024; and
(vi)Exhibit A-1, which was a series of photographs.
The respondent wife relies upon the following documents:
(i)Affidavit of the wife and annexures filed;
(A)8 February 2024; and
(B)4 July 2023.
(ii)Application for Divorce filed 27 October 2022;
(iii)Marriage Certificate filed 27 October 2022; and
(iv)Citizenship Certificate filed 27 October 2022.
Standard and onus of proof
The standard of proof in this case is the balance of probabilities (s 140 Evidence Act 1995 (Cth)).
Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.
In this case, the applicant husband seeks a declaration and bears the onus of proof to satisfy the court that the wife was married to Mr GG as at mid-2006.
In order to do so, the husband must persuade the court, to the requisite standard, that the ceremony the wife participated in with Mr GG in 2004, was indeed a marriage, as opposed to a Roka (a pre marriage Hindu engagement ceremony), as asserted by the wife.
The applicant and respondent relied upon their respective affidavits. The affidavits exhaustively recounted the history of the parties’ relationship. I have examined that evidence and do not propose to repeat it in these reasons.
In Whisprun Pty Ltd v Dixon (2003) 234 CLR 492 at [62], Gleeson CJ, McHugh and Gummow JJ said:
[62]…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
Credibility of Witnesses
The applicant husband swore several affidavits in the course of the proceeding and was cross‑examined by counsel for the respondent wife. He was a garrulous witness, whose answers bore little resemble to the questions asked. He preferred to make speeches to convey his perception of events and to attempt to cast his case in a manner he thought would be most favourable to his case. He relied to a large extent on hearsay documents, the provenance of which he failed to explain in any meaningful manner. He had personal knowledge of the events in question, but rather relied on the documents, which will be referred to below, as being a truthful account of the wife’s personal circumstances almost 20 years ago. I do not consider the husband to be a helpful nor reliable witness.
He filed an affidavit of Mr GG, whom he asserted was the wife’s first husband, to whom she was supposedly married to as at the date of his marriage to the wife. At the commencement of the hearing on 9 February 2024, counsel for the husband initially sought to rely on the affidavit, but due to Mr GG subsequently refusing to make himself available for cross-examination, his counsel conceded he could not rely on the affidavit.
The husband also attempted to rely upon an affidavit of a so-called expert, Mr JJ, who filed affidavits on 2 and 8 February 2024. Counsel for the husband conceded Mr JJ was not a joint single expert witness, as required by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), there was no letter of instruction annexed to his affidavit, his credentials as to the task were uncertain and he had been provided with documents from the proceedings in breach of the then s 121 of the Family Law Act 1975 (Cth). Furthermore, Mr JJ did not confine his activities to providing an expert opinion as to the law, by his own admission, he conducted his own factual investigations, including supposedly interviewing Mr GG. Counsel for the husband conceded he did not rely on the affidavits of Mr JJ.
The wife swore two affidavits in the course of the proceedings and was cross-examined by counsel for the husband. In stark contrast to the husband, she was a direct and responsive witness, whose evidence was consistent with her affidavits. She was repeatedly asked the same questions multiple times by the husband’s counsel, retained her composure, and gave spontaneous and concise answers. For these reasons, I reject the submission of counsel for the husband that she was an unreliable witness. I also reject the submission that the wife should be regarded as evasive, just because she vehemently disagreed with the propositions put to her by counsel for the husband and denied that she was the woman in a photograph wearing a green dress. That is particularly so, when the basis for most of the wife’s cross-examination was the contents of a statement made to the police, dated late 2005, which the wife repeatedly denied she had made and the so called First Information Report, the provenance of which left much to be desired, including being in a different language to that assumed by counsel for the husband. I accept the wife as a truthful and reliable witness.
THE APPLICABLE LAW
Section 51 of the Family Law Act 1975 (Cth) provides that:
An application under this Act for a decree of nullity of marriage shall be based on the ground that the marriage is void.
Section 23B(1)(a) of the Marriage Act 1961 (Cth) (“the Marriage Act”) relevantly provides that:
(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;
The husband’s case
The husband seeks from the court a decree of nullity declaring that the marriage between him and the wife solemnised in 2006 is void. He does so on the basis that the wife was still married to her former husband, Mr GG, as at that date.
In order to succeed, the husband must persuade the court, to the requisite standard, that the ceremony the wife participated in with Mr GG in 2004, was indeed a marriage, as opposed to a pre-marriage ceremony known as a Roka, as asserted by the wife.
Both parties agree there is no certificate of marriage arising from the ceremony between the wife and Mr GG in 2004. The husband asserts that is because as of 2004, there was no requirement under Hindu law for a marriage certificate to prove a valid marriage. It was not until 2006, because of a judgement of the High Court in India, that Hindu law changed whereupon individual states codified the law to provide for marriage certificates.
The wife’s first counsel, who did not appear on the adjourned date, conceded the change of law vis-à-vis marriage certificates. However, the wife asserts the ceremony was not a marriage and therefore there could not have been any certificate of marriage.
In advancing his case of a valid marriage between the wife and Mr GG, the applicant husband maintained during cross-examination that he relied upon what Mr GG had told him, the first information report (FIR) and the divorce decree. During the course of the proceedings, it became apparent he also relied upon a statement, which he asserted the wife had made to police in late 2005. The genesis of his case was that there could not have been a valid divorce, absent a valid marriage between the wife and Mr GG. Counsel for the applicant submitted the statements of the wife in both the FIR and her police statement of late 2005, demonstrate she considered herself married to Mr GG, at that time.
When asked about how he initially got in touch with Mr GG, the husband’s evidence was he found out from neighbours that the wife was previously married and then engaged a solicitor, Mr KK, who apparently found the copy of a divorce certificate and FIR. According to the husband, he also engaged Mr KK to assist in dismissing false complaints he asserts the wife made against him in India in mid-2018 (Transcript 9 February 2024, p.25 lines 16-19). The husband did not specifically address how he got in contact with Mr GG.
Despite the husband apparently being aware of these documents prior to 2020, the husband and wife filed a mutual divorce petition in India on 3 January 2020. When the husband was cross‑examined by counsel for the wife as to why he proceeded with such an application, his answers were unintelligible and non-responsive, and he referred to an apparent dispute about parenting arrangements and criminal proceedings in India. There was no credible explanation as to why the joint application for divorce had been made by him or why he did not then apply to have his marriage annulled, as opposed to an application for divorce.
I now turn to the three documents relied upon by the husband. I will consider the documents in the order they were put to the wife in cross-examination.
First, I will consider the alleged statement to police made by the wife in late 2005. The document is Annexure “A” to the husband’s affidavit filed 30 April 2023. This document is clearly hearsay, and no submissions were made about its admissibility as an exception to the hearsay rule.
The asserted statement is in English and is a translated version of a statement purportedly made by the wife to a police officer, at the Police Station in Town LL, India, in late 2005. There seems to be a further handwritten note on the last page of the four-page document which refers to a date in 2007. No explanation was given about this note, nor the relevance of the date.
When asked in cross-examination whether she had ever attended the police station in Town LL in late 2005 or provided a statement to police, the wife repeatedly said she had not done so. Her evidence was Town LL was about three hours’ drive from City MM, where she was living at the time.
There was no explanation provided by the husband about the provenance of the document, other than it was obtained by his Indian solicitor in 2019. There was also no explanation why the original document was not produced, the language of the original document, what document was produced to the translator (if at all), when the document was supposedly translated, or the credentials of the translator. There was also no evidence about what enquiries the Indian solicitor had made to find an English translation of the document, which was supposedly a statement made 19 years ago to a police officer in a town where the wife did not live. Further, the document was not signed by a Notary.
Counsel for the husband put to the wife the contents of the document, which she repeatedly and consistently denied. She also denied having ever attended a police station in Town LL and repeatedly said she was not living in Town LL at the time, but was living in City MM, and was in a relationship with the applicant husband at the time. I have serious concerns about the lack of provenance and authenticity of the document, and I accept the wife’s evidence that she did not attend the police station, nor make the statement as alleged.
Secondly, I will consider the FIR, which is Annexure “MRN-11” to the husband’s affidavit filed 5 January 2024. A copy of the purported original document and an English translation thereof, is also annexed to the affidavit of the translator, Ms HH filed 7 February 2024.
The same criticisms about lack of provenance and authenticity apply to this document, as to the purported police statement of the wife referred to above.
Additionally, I assumed, as did counsel for both parties that the original document was in Hindi. When the document was produced to the wife during cross-examination, she identified the document was not in Hindi, but another language. She identified the national language of India as Hindi, which was not challenged by counsel for the husband. An examination of the affidavit of the translator confirmed the document was in another language and not Hindi. Counsel for the husband was unable to provide any explanation as to why the document would be in that language when it was supposedly a document created by a police officer, in late 2005. It is notable that despite much of the document being handwritten in English, it was still ‘translated’.
Apparently a copy of the original document was obtained, but there was no certification by a Notary as to the original document being sighted. Again, no explanation was offered as to why a police station in Town LL would or could retain documents relevant to events which supposedly occurred 19 or so years ago, nor how the Indian solicitor supposedly obtained a copy of the document. The husband did not file an affidavit from his Indian solicitor about how the document was obtained.
Counsel for the husband cross-examined the wife about the document. She again denied she had ever made a complaint to the police in Town LL and said at that time she was living in City MM. She also denied the factual scenarios put to her by counsel for the husband, which obviously arose from the contents of the alleged police statement, including the proposition that the wife had attended the police station because of an assault on her by Mr GG’s parents, arising from a dowry dispute. She emphatically denied that proposition and propositions arising from the alleged dowry dispute.
Thirdly I turn to the divorce decree allegedly obtained by Mr GG in early 2010. Again, the documents purporting to be a divorce decree attract the same criticism as the wife’s alleged statement to police and the FIR.
The wife was cross-examined about the documents wherein Mr GG supposedly petitioned for divorce in mid-2009, which was granted in early 2010. During cross-examination, the wife said the first time she became aware of the documents was by reading affidavits filed by the husband in this proceeding. A copy of the document is annexed to Mr GG’s affidavit, which was initially relied upon by the husband, but when Mr GG subsequently refused to be cross-examined, it no longer could be.
Although the documents have a stamp of a notary from the Government of Region NN dated late 2023, there is no certification from the asserted notary that he has sighted the original of the purported document.
Paragraph two of the purported reasons for divorce refers to the application being determined ex parte, notwithstanding she was supposedly served “by way of publication of a proclamation in the [news media]”. The reference to service in the document is consistent with the wife’s evidence that she had never previously seen the document and was unaware of the divorce.
Because of the identified deficiencies with all three documents, the lack of credible explanation about the circumstances of production of the documents, and my acceptance of the wife’s evidence, I am unable to rely on any of the three documents. They do not assist in any manner whatsoever in the husband proving a valid marriage between the wife and Mr GG. Because of these deficiencies, I reject the submission of counsel for the applicant husband that the contents of the documents speak for themselves, or that it would be fanciful to conclude that anybody had made up the documents and the court should not accept the author of the documents was anyone other than the wife because of the common themes in all three documents. Counsel for the husband conceded the authenticity of the documents was problematic.
In addition to the three documents referred to in the preceding paragraphs, the husband relied upon photographs which were tendered as Exhibit “A-1”. These were a series of photographs which depicted the wife in a red dress, which the husband asserted was a Hindu wedding dress. Various other people were included in the photographs, and the wife agreed that Mr GG appeared next to her in some of the photographs. Counsel for the husband further put to the wife that a photograph of a woman in a green dress was her, which she denied.
According to the husband, the photographs of the wife in the red dress were photographs of a Hindu wedding ceremony and it was to be inferred, the woman in the green dress was the wife attending a post-marriage ceremony known as a Karva Chauth ceremony, which supposedly took place in late 2004.
The wife denied the red dress was a traditional Indian wedding dress and emphatically denied the occasion depicted in the photographs was a wedding ceremony. Rather, she said it was a pre-engagement ceremony known as a Roka. She denied that she had participated in a ceremony known as a Saptapadi, as referred to in paragraph 4 of her affidavit filed 8 February 2024, and did not know or recognise people in the photographs who were, according to Counsel for the husband, members of Mr GG’s family.
Counsel for the husband was critical of the wife because she had not referred to the ceremony as a Roka in affidavits sworn prior to February 2024. I do not accept that as valid criticism, because in her affidavit filed 4 July 2023, at paragraph 19, the wife said:
…Mr GG and I never had a wedding, nor any other type of Hindu marriage right or ceremony.
That statement is clearly referring to a marriage ceremony, not pre-engagement or pre-wedding ceremony. The husband’s criticism is opportunistic semantics.
Counsel for the husband cross-examined the wife about her statements to Dr G, psychiatrist, which occurred during interviews for a psychiatric assessment of both parties for the purposes of the parenting proceedings. A copy of Dr G’s report is Annexure “MRN-5” to the husband’s affidavit of 5 January 2024, and it is clearly hearsay. Counsel for the husband asserted the wife had told Dr G that Mr GG was her first husband. The section of the report in question states as follows:
…I questioned the Mother as to the Father’s allegations that she was previously married. She responded “this was my first marriage”. It is her view that he is lying.
I do not accept that interpretation of the wife’s statement to Dr G meant that Mr GG was her first husband. I take the statement to mean the husband in this proceeding was her first and only husband, which was also the wife’s interpretation of the statements.
Self-evidently the husband has no personal knowledge of the circumstances of the photographs comprising Exhibit “A-1”. Cross-examination about the photographs was primarily founded on statements allegedly made in problematic documents. I accept the wife’s evidence about the nature of the ceremony and her clothing and cannot be satisfied to the requisite standard, that the photographs are of a marriage ceremony.
The wife’s case
The wife’s case is that she did not marry Mr GG, the photographs tendered by the husband depict a ceremony known as a Roka (a pre-engagement ceremony), her only marriage was to the applicant husband, and prior to this proceeding she was unaware of the supposed divorce obtained by Mr GG.
She consistently disagreed with, and denied the propositions put to her by counsel for the husband, which obviously arose from the contents of the documents referred to above.
The wife also relies upon a mutual divorce petition filed on 3 January 2020 at the Civil Courts of Region FF by both her and the applicant husband, and an affidavit sworn by the applicant husband in that proceeding, which is Annexure “A” to her affidavit filed 4 July 2023. The proceeding also included a joint application for waiver of the six-month period for a divorce decree.
According to the wife, the proceeding was listed on at least three occasions when the husband failed to appear, before being dismissed on 7 March 2020. The husband did not dispute the application had been made to the Indian courts. When cross-examined about the inconsistency between his current application for nullity and the mutual divorce petition to the Indian courts, his answers were non-responsive.
Discussion
As referred to above, in this proceeding it is incumbent upon the husband to prove on the balance of probabilities, the wife was married to Mr GG as at the date of the marriage between the applicant husband and the respondent wife.
For the reasons referred to in the discussion of the husband’s case, the evidence he relies upon, including the documents lacking credible provenance, does not persuade me to find that a marriage ceremony took place between the wife and Mr GG in 2004. I prefer and accept the evidence of the wife and find the ceremony she underwent with Mr GG was a engagement ceremony and was not a ceremony of marriage.
I also have significant concerns about the motivation and bona fides of the husband in commencing proceedings for a declaration of nullity. The application must be seen in the context of the ongoing highly acrimonious parenting dispute between the parties.
As identified by the wife at paragraph 27 of her affidavit filed 4 July 2023, the husband’s application for nullity was filed on 7 July 2022, shortly after his unsuccessful application at an interim parenting hearing on 31 May 2022.
A substantial part of the husband’s Outline of Case Document (Divorce/Nullity Hearing) is devoted to why the wife should be punished for contempt in the face of court, perjury, and bigamy. At paragraph 39, being the concluding paragraph in relation to contempt in the face of court, the husband states as follows:
None of these elements favour the Wife, except that she is a custodial parent of the parties’ three children, who the Husband submits are at an unacceptable risk of harm in care of Wife due to her mental health issues, lack of insight and ongoing alienation, relying on the report of independent psychiatrist Dr [G]. Dr [G] confirmed his belief the husband is not at risk to the children. The children of the parties can be placed with the Husband pending the term of any imprisonment imposed. The Court may issue a recovery order for the children to assist their transition if deemed necessary.
At paragraph 54 of the same document, being the concluding paragraph in relation to perjury, the husband states as follows:
The Husband humbly submits the Court ought to punish the wife with an immediate custodial sentence, refer this matter to the appropriate prosecuting authority and issue a recovery order in respect of the parties’ children considering barrister submission which were tendered as evidence in parenting trial dated 16 June 2023…
On 27 October 2023, the husband filed an Application in a Proceeding, wherein he sought an urgent ex parte recovery order in respect of the parties three children. On 5 January 2024, he again filed an Application in a Proceeding seeking an urgent ex parte recovery order, and an order that the children be prevented from spending time with their mother for a period of six months from the date of the orders. It is unclear whether these applications were filed in the nullity proceedings or the substantial parenting proceedings.
On 7 February 2024 the husband filed an Amended Application for Final Orders in this proceeding. The orders sought by the husband include a declaration that the marriage between them is void, the registrar refer the orders and documents filed by the parties to the Commonwealth Director of Public Prosecutions for consideration of bigamy and perjury, the court find the wife guilty of contempt in the face of court, the wife be sentenced to imprisonment for a period of two years to commence forthwith, the wife pay the husband’s costs on an indemnity basis, a recovery order issued for the three children, and finally the husband have sole parental responsibility for the children and that they live with him.
It cannot possibly be coincidental that the husband has pursued the nullity proceedings with such vigour, with the aim of the court imprisoning the wife for a period of two years, so that the children can live with him, amidst the background of acrimonious parenting proceedings. The parenting proceedings ultimately resulted in orders providing for no time between the husband and the children.
I now turn to discuss the costs applications.
Costs
At the conclusion of the hearing, I raised with both counsel the issue of costs. In the event their client was successful, both counsel sought the other party to pay costs. Neither counsel were able to articulate the quantum of costs sought, and accordingly each party was directed to notify my chambers within seven days of the quantum of costs sought.
The husband sought costs of $45,727.47 in accordance with his Costs Notice filed 1 August 2024.
The wife sought costs of $9,879 to be refunded to Victoria Legal Aid and a further amount of $5,792 comprising legal fees paid by her to her previous solicitors ($1,742) and $ for flights, car travel and loss of leave for two and a half days.
In Massalski & Riley (No. 2) [2021] FamCAFC 152 at [8], the Full Court said, an order for costs:
…falls to be determined within s 117 of the Family Law Act 1975 (Cth) (“the Act”). Section 117(1) provides that each party to a proceedings under the Act should bear his or her own costs unless the court is of the opinion that there are circumstances that justify making a costs order (s 117(2)). Section 117(2A) sets out matters to which the court should have regard to in determining whether there are circumstances which justify an order for costs, and if so, what, if any, order should be made. As well as the matters listed in s 117(2A), s 117(2A)(g) enables the court to take into account such other matters that are relevant.
In the Marriage of I & I (No 2) (1995) 22 Fam LR 557, the Full Court said that the relevant matters in s 117(2A):
“…must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”
No one factor under s 117(2A) of the Act prevails over any other factor. Rather, it is a matter of weight that is accorded to each of the relevant factors in the judge’s discretion: (Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664 at 80,400). It is not necessary for each of the factors listed in s 117(2A) of the Act to be met for the court to make a costs order. (Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)v Fish (2005) 33 Fam LR 123 at 124).
The matters set out in s 117(2A) of the Act which I consider are relevant to costs in this matter are as follows.
As to the financial circumstances of each of the parties, both are employed as medical professionals. There was no evidence about their respective remuneration, other than the wife is self-employed. The wife has the care of the parties three children and bears the brunt of the financial support for the children. The husband pays child support of approximately $500 per calendar month for all three children.
The wife is in receipt of legal aid via s 102NA of the Act, and the husband is privately funded.
Counsel for the husband submitted that the wife has wasted the court’s time and caused additional cost to be incurred because she appeared unrepresented on 22 September 2023 and the applicants’ costs of this day were subsequently reserved. He further submitted the wife’s conduct has been less than exemplary, and she has brought the proceedings on herself by denying the veracity of the documents relied upon by the husband.
Counsel for the wife submitted the husband brought the proceedings for collateral purposes, namely in order to secure the imprisonment of the wife so that the court would issue a recovery order and place the children in the husband’s care. I refer to the husband’s conduct above, which is apparent from the Outline of Case document filed on his behalf, and specifically the orders sought in the Amended Application for Final Orders filed 7 February 2024, whereby he seeks the wife be imprisoned by this Court for two years, and a recovery order issued in relation to the children.
Clearly the husband has been wholly unsuccessful in the nullity proceedings and the wife has been wholly successful.
There were no offers of settlement made by either party in writing during the course of the proceedings, which were brought to my attention, and it is difficult to contemplate that any offers could be made in the circumstances.
I also take into consideration the lack of provenance and authenticity of the three documents relied upon by the husband in his misguided attempts to prove a marriage ceremony took place between the wife and Mr GG.
Having considered the statutory criteria, and for the reasons above, in particular the husband’s conduct and mala fides, I am satisfied that an order for costs should be made.
I intend to make an order for costs in the quantum claimed by the wife’s solicitors, because it is inconceivable any agreement as to quantum would ever be reached, the sum claimed is modest and not to fix costs would involve the parties in more protracted costs assessments and possible litigation. Payment of the costs ordered will be conditional upon the wife’s solicitors providing to the husband, or his solicitors, a letter from the relevant legal aid commission confirming reimbursement is required of the aid extended to the wife.
I will order the husband pay the wife’s costs as claimed by her, both to refund the relevant legal aid commission and her personal costs. The total amount of costs claimed by the wife are around $30,000 less than the costs claimed by the husband, and are more than reasonable, when compared the husband’s costs claim.
Although there were no submissions about the time frame for payment of costs, I intend to make an order that costs be paid within 60 days of the date of these orders, which I consider to be a reasonable period to enable husband to meet the costs order.
Divorce
Because I have dismissed the husband’s application for nullity, I intend to grant a divorce of the parties’ marriage, as sought in the wife’s Application for Divorce originally filed in the Family Court of Western Australia and later filed in the Federal Circuit and Family Court on 27 October 2022.
In his Response to an Application filed in this court on 27 October 2022, the husband asserts the Application for Divorce is invalid because the wife “had not resided in Australia immediately prior to the application for over 24 months”. Notwithstanding that irrelevant assertion, the wife has satisfied the jurisdictional requirement of s 39(3)(a) of the Act, namely that she is an Australian citizen. She has deposed to that in her Application for Divorce and has filed her certificate of Australian citizenship.
I therefore find that the parties were legally married, that the applicant was at all material times an Australian Citizen and the ground for the Application for a Divorce Order namely, that the marriage has broken down irretrievably, is proven.
I have considered the circumstances of the children and I find that s 55A(b)(i) of the Act is satisfied and to that extent I rely on the parenting orders made in this court, subsequent to a defended parenting trial.
I will make orders accordingly.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 8 August 2024
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