NGO & NGO

[2010] FamCA 1053

FAMILY COURT OF AUSTRALIA

NGO & NGO [2010] FamCA 1053

FAMILY LAW – MARRIAGE – Nullity

Family Law Act 1975 (Cth)

APPLICANT: Ms Ngo

RESPONDENT: Mr Ngo

FILE NUMBER: MLC 8079 of 2010

DATE DELIVERED: 12 October 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 12 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ham

SOLICITOR FOR THE APPLICANT: Westminster Lawyers

THE RESPONDENT: No appearance

Orders

1. That the marriage ceremony as between the applicant Ms Ngo and the respondent Mr Ngo that took place on … July 2010 at B Street, Melbourne, Victoria was void. 

2. That the application filed on 30 August 2010 is otherwise dismissed.

3. That the Registry Manager of the Melbourne Registry of the Family Court of Australia refer to the Attorney-General for the Commonwealth of Australia the following:

   (a)      a transcript of the proceedings this day;

   (b)      a copy of the reasons for judgment this day; and

   (c)      a copy of all documents on the court file,

   for consideration of an investigation into the conduct of marriage celebrant Mr DO.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8079 of 2010

MS NGO

Applicant

And

MR NGO

Respondent

REASONS FOR JUDGMENT

1. On 30 August 2010, Ms Ngo filed an application in this Court against Mr Ngo seeking that pursuant to section 51 of the Family Law Act 1975 (“the Act”), the marriage solemnised in July 2010 at B Street, Melbourne, be decreed to have been “absolutely null and void” as between she and Mr Ngo.  The application also sought an alternative remedy but that was not pursued. 

2. The fact that both parties bear the same surname is of no significance because it is a common name in the Vietnamese culture. 

3. The application having been filed on 30 August, attempts were made to serve Mr Ngo by a process server, Mr S.  The applicant relied on two affidavits by Mr S.  The first is an attempted service in which he said that on 23 and 27 September he was unsuccessful, and then on 28 September he attended at H Street, W, where he spoke to an adult female who replied, in response to a question that he asked, that Mr Ngo lived there.  Mr S then advised the female that he was placing the documents in the letterbox and the woman assured Mr S that those documents would be brought to the attention of Mr Ngo. 

4. Leave was been granted to file an affidavit by Anna Parker who is the solicitor for the applicant.  She caused a copy of the same documents that Mr S delivered, to be sent to Mr Ngo by registered post and then, as an abundance of caution, they were also sent to an email address.  Ms Parker said that on 8 October 2010, she received a telephone call from Mr Ngo and she was satisfied that he was the person referred to in the documents.  She asked Mr Ngo to confirm that he had received the documents.  He said that he had and that he had read the affidavit.  She asked him to sign and return an acknowledgement of service form which was with the documents that she had sent and he indicated that he would do so.  That acknowledgement had not arrived by the time of the hearing.

5. Ms Parker then said: 

   During the course of the conversation the respondent indicated that he did not oppose the marriage being “cancelled”.  He indicated he did not wish to participate and felt that the applicant should be able to do it herself “easily”.

6. The Family Law Rules 2004 set out various methods of service of documents but their underlying principle is that of natural justice, that is, that a person who is a litigant in any proceedings has an opportunity to participate and to be heard. I am satisfied on all of the documents that I have read that Mr Ngo has had ample opportunity to participate in the proceedings.

7. Mr Ngo has been called this morning and there has been no appearance by him or on his behalf.  He has not filed any documents responding to the application. 

8. In essence therefore, I am dealing with an application to annul, on the grounds that the marriage was void, that which took place at B Street in July this year.  The story is, at best, remarkable if not sad.  Ms Ngo filed her evidence by affidavit but she also confirmed that affidavit on a viva voce basis and extended her evidence. 

9. Ms Ngo is 23 years of age.  She said she did not know the date of birth of Mr Ngo but thought that he was about 19. 

10. Ms Ngo was born in Vietnam and came to Australia at the age of approximately three years and is now an Australian citizen. 

11. The remarkable thing about this case is that Ms Ngo met her husband in late July this year.  That is the first time she became acquainted with him or had any knowledge of him.  She told me in evidence that he was known to a friend of her mother and that is how they were introduced.  The introductions occurred in late July 2010.  At that stage, Ms Ngo had never been married before and, presumably, neither had her now husband.  Ms Ngo’s evidence is that in late July 2010, the friend of her mother asked her to go to an immigration agent with Mr Ngo to sponsor him to enable him to stay in Australia. 

12. Mr Ngo, according to Ms Ngo, speaks very limited English but is fluent in the Vietnamese language.  She said he was a student on a visa which was due to expire.  Her understanding was that he had been in Australia for two years. 

13. Under some pressure, Ms Ngo’s mother suggested that she should help Mr Ngo stay in Australia and she agreed.  She says, and I have no reason to doubt the truthfulness of this, in that conversation there was no mention of marriage. 

14. Five days later the parties attended upon a man named Mr DO at the B Street address.  She said he was referred to by the Vietnamese title for lawyer and she believed him to both be a lawyer and a migration agent. 

15. Attached to her affidavit is an extract from the register of the migration agents held by the Office of Migration Agents Registration Authority which shows that Mr DO is a registered migration agent. 

16. It is to be remembered that, on the date of the attendance on Mr DO, the applicant had only known the respondent for five days.  During that period of time because his English was broken and he was difficult to understand they agreed to speak in the Vietnamese language.  Just what occurred in that five days is not in evidence before me.  In late July, the applicant and the respondent went to the offices of Mr DO where a conversation occurred which was conducted in the Vietnamese language. 

17. Albeit that Ms Ngo does have a grasp of the Vietnamese language, she is not fluent in it and said that she understood very little of what was said.  She said of what she did understand, there was no mention of marriage.  She said that, in that meeting, she was asked to return and to bring with her, a change of name certificate.  Two days later, the parties returned to Mr DO’s office.  She said that in the office there were two desks, the first of which was occupied by Mr DO and the second was occupied by a woman who acted as his secretary and whom she understood to be his daughter. 

18. She said when they arrived, they took a seat in what was a waiting area where there were chairs.  She said that Mr DO was dealing with another client and then when he had completed that, after some five or 10 minutes wait, she moved to his desk where she and Mr Ngo took a seat.  Mr DO then had a conversation with the parties which took place in the Vietnamese language over a space of 15 minutes.  According to Ms Ngo, no marriage ceremony, as she would understand it, took place; no vows or rings were exchanged, and nothing was said or done to indicate that the meeting had the nature of a wedding or a marriage ceremony.  She said she did not understand a lot of the things that were said at that meeting. 

19. She was then asked to sign a document described as a marriage certificate and that is in evidence attached to her affidavit.  There is no doubt she did sign it.  When she got that certificate remains something of a puzzle, although it appears it was some time after the second meeting.  In any event, all of the hallmarks of a marriage ceremony did not take place, as she would understand it.  Ms Ngo’s view about it was that she thought that it was some form of contract which could be cancelled, and she said that some three days after this second meeting, she telephoned Mr DO to say that she did not want to marry the respondent. 

20. She said that he told her that she was already married and that it was too late.  She said she was shocked.  He said to her that he had no choice but to hand in the marriage certificate because each marriage certificate had a unique number, and if they were not handed in, he could lose his job. 

21. The application is brought under s 51 of the Act. That provision simply says that a decree of nullity of marriage shall be based on the ground that the marriage is void. To determine whether or not a particular marriage fits within that description, one looks at s 23B of the Marriage Act 1961. 

22. The grounds under s 23B are, so far as they are relevant for this application, that the consent to the marriage of either of the parties was not a real consent because it was obtained by duress or fraud or that the party is mistaken as to the identity of the other party or as to the nature of the ceremony performed or that a person is mentally incapable of understanding the nature and effect of the marriage ceremony. It is difficult to understand, in this case, whether there is a basis to say that the marriage was void on any grounds of duress because it would seem that the applicant’s will was not overborne by either the respondent or any other person.

23. It is quite clear, however, that the applicant’s case fits within either of the categories that the consent was obtained by fraud, or alternatively, that the applicant was mistaken as to the nature of the ceremony performed.  Insofar as it might be said that the circumstances gave rise to a fraud, it is quite clear that a number of people had discussions in the Vietnamese language which were exclusive of any involvement by the applicant.  I am satisfied, on the evidence, that she did not understand that what everyone was doing was arranging for documents to be signed purporting to be a marriage for the purposes of enabling a necessary foundation to be created for a migration application.  If, as I suspect that did occur here, it must be a fraud upon Ms Ngo. 

24. Even if that was not the case, I am satisfied on the evidence that the applicant did not understand the nature and effect of the marriage ceremony.  It is obvious that various things have to be done prior to a marriage ceremony.  There is no evidence from the applicant that any of those things did take place in preparation for the marriage ceremony, and in respect of timeframes, one would wonder how a meeting in late July 2010 could possibly lead into a marriage ceremony two days later.  In addition to that, all of the attributes of the marriage ceremony as required by the Marriage Act, which include agreement as to what each party intends about the future of their life together, did not take place.

25. As the evidence shows, there was no exchanges of rings, and whilst that is not a requirement under the Act, it certainly corroborates the applicant’s view that she was not entering into any form of marriage relationship. If she was not entering into a marriage relationship, then there could hardly be said to have been a marriage ceremony. I am satisfied in those circumstances that the marriage is void for the purposes of the Act.

26. I express the view that, from a public policy point of view, this is all very disconcerting. 

27. Leaving aside what might be described by counsel as foolish and naïve behaviour by his client, and probably even a similar behaviour by a young man aged about 19 years of age, it is very troubling that an official with significant authority endorsed by the Commonwealth of Australia should be participating in something of this nature.  If in fact, as I suspect, Mr DO is also a marriage celebrant and deals with the Vietnamese community, one wonders whether this is but the tip of the iceberg, particularly as he seems to be involved in issues associated with migration.  It may very well be that the fraud to which I have referred leads on to matters that breach various Commonwealth laws. 

28. Even if that is not the case, the Commonwealth Government needs to be made aware of what has occurred.  Based on the findings I have made, this is an appropriate case for me to refer the papers to the Commonwealth Attorney-General for consideration of an investigation into Mr DO’s role in this particular marriage. 

29. Accordingly, I propose to direct that the Registry Manager of the Melbourne Registry of the Family Court of Australia obtain a transcript of the evidence this day and refer that transcript, these reasons for judgment and the affidavit material filed to the Attorney-General for the Commonwealth of Australia for investigation as he sees appropriate. 

I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 12 October 2010.

Associate: 

Date:  24 November 2011