Nelson and Nelson - [2016] FamCA 516

FAMILY COURT OF AUSTRALIA

NELSON & NELSON

[2016] FamCA 516

FAMILY LAW – NULLITY – Where a declaration of nullity is sought – Where the parties were validly married in the UK – Where the parties underwent a second marriage ceremony in Australia – Consideration is given to circumstances in which a marriage is found it be void – where it is found that the Australian marriage is void – Declaration of nullity made.

Family Law Act 1975 (Cth) s 51
Marriage Act 1961 (Cth) s 23, 23B, 88C, 88D, 88G, 113.

Zua v Huang [2015] FamCA 873.

APPLICANT:

Ms Nelson

RESPONDENT:

Mr Nelson

FILE NUMBER:

PAC

2948

2014

DATE DELIVERED:

23 June 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

11 April 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Arbabzada

RESPONDENT – LITIGANT IN PERSON:

Orders

The marriage between the applicant and the respondent conducted at Suburb B, New South Wales on … 1997 be declared void and a nullity.
All outstanding applications and cross-applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nelson & Nelson 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 PARRAMATTA

FILE NUMBER: PAC 2498 of 2014

Ms Nelson

Applicant

And

Mr Nelson

Respondent

REASONS FOR JUDGMENT

Introduction & Background

This matter concerns an application for a decree of nullity of marriage as to the marriage between Ms Nelson (“the wife”) and Mr Nelson (“the husband”) solemnised in 1997.
The wife and husband were married in 1995 in the UK (“the UK marriage”). The parties married to facilitate the wife remaining in the UK with the husband and the ceremony was not attended by the parties’ families.
In 1996, the parties relocated to Australia.
The parties underwent a second marriage ceremony in 1997 in Suburb B, New South Wales (“the Australian marriage”). The wife describes the wedding as “very traditional with over 100 guests”. It was submitted on behalf of the wife that the wife and husband underwent a second marriage ceremony because the parties wanted their families and friends to attend.
The parties separated in February 2014.
On 24 September 2015, a divorce order was granted in relation to the UK 1995 marriage in the Federal Circuit Court of Australia, effective on 25 October 2015.
On 13 January 2016, the wife filed an Initiating Application seeking “a declaration that the marriage made in 1997 is void under section 23 of the Marriage Act 1961” and that the marriage, being void, “is annulled”.
On 1 March 2016, the husband filed a Response to Initiating Application seeking identical orders.
The application was listed before me on 11 April 2016. On that same date, the wife filed an Application in a Case seeking a declaration that the “marriage made … 1997 is void under section 51 of the Family Law Act 1975 (Cth)” and that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nelson and Nelson

Details

AGLC: Nelson and Nelson [2016] FamCA 516
Case: [2016] FamCA 516
Decision Date: 23 June 2016

CaseChat Overview and Summary

In *Nelson and Nelson*, the applicant sought to have their marriage declared void and a nullity. The respondent did not appear and was not represented. The proceedings were heard by Hannam J in the Federal Circuit Court of Australia.

The central legal issue before the court was whether the marriage between the parties was valid, or if it was void ab initio. This required the court to consider the circumstances surrounding the marriage ceremony and determine if any grounds for nullity were established.

Hannam J found that the evidence presented established that the marriage was void. The specific grounds for this finding are not detailed in the provided extract, but the court was satisfied that the marriage did not meet the legal requirements for validity. Consequently, the court declared the marriage void and a nullity.

The court ordered that the marriage between the applicant and the respondent, solemnised in Suburb B, New South Wales in 1997, be declared void and a nullity. All outstanding applications and cross-applications in the proceedings were dismissed.

Orders

Orders of the court

The marriage between the applicant and the respondent conducted at Suburb B, New South Wales on … 1997 be declared void and a nullity.

All outstanding applications and cross-applications are dismissed.

Background

Background to the litigation

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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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