NHUNG & NHUNG

[2018] FamCA 225

FAMILY COURT OF AUSTRALIA

NHUNG & NHUNG [2018] FamCA 225

FAMILY LAW – NULLITY – Where both parties seek a declaration that the marriage is null and void – Where the husband was still married to another party at the time of the subject marriage – Declaration of nullity made.   

Family Law Act 1975 (Cth) ss 51, 113
Marriage Act 1961 (Cth) s 23B

APPLICANT: Mr Nhung

RESPONDENT: Ms Nhung

FILE NUMBER: PAC 6427 of 2017

DATE DELIVERED: 12 April 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 21 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Friedlander

SOLICITOR FOR THE APPLICANT: Selective Lawyers

SOLICITOR FOR THE RESPONDENT: QT Lawyers & Associates

Orders

1. That by virtue of sections 51 and 113 of the Family Law Act 1975 (Cth) and section 23B of the Marriage Act 1961 (Cth) the marriage of Mr Nhung and Ms Nhung in Country B on … 2009 be declared null and void.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nhung & Nhung has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 6427 of 2017

Ms Nhung

Applicant

And

Mr Nhung

Respondent

REASONS FOR JUDGMENT

Introduction

1. Both the applicant husband, Mr Nhung, (“the Applicant”) and the respondent wife, Ms Nhung, (“the Respondent”) seek a declaration that their marriage be declared a nullity.

Background

1. The Applicant, who is 56 and was born in Country B, married Ms C (“the first wife”) in 1984 in a refugee camp. The marriage certificate is annexed to the Applicant’s affidavit filed 22 December 2017.  

2. In July 1984 the Applicant and his first wife came to Australia. They have four children together, the first of whom was born in 1984 and is now aged 33.

3. In 1985 the Applicant was involved in a motor vehicle accident which he alleges caused him to have memory problems. He receives a Disability Support Pension.

4. The Applicant’s second and third children with his first wife were born in 1987 and 1994 and are now aged 31 and 23 respectively.

5. The Applicant deposes that he and his first wife separated in 1993 but he continued to visit her and they continued their sexual relationship.    

6. The Applicant deposes that in 2002 he gave his first wife money in order to obtain a divorce and believed that from that date he was divorced from his first wife. The Applicant and his first wife continued to have a sexual relationship.

7. In 2003 the Applicant’s fourth child with his first wife was born. That child is currently aged 14 and lives with his mother and spends two hours per fortnight with the Applicant. The Applicant pays child support for this child.

8. The Applicant married the Respondent, who was born in Country B and is 42 years of age, in Country B in 2009.

9. The Respondent, in her affidavit filed 16 February 2018, deposes to believing that the Applicant was divorced from his first wife at the time of the parties’ 2009 marriage. When she subsequently made an application to migrate to Australia the parties depose to discovering for the first time that the Applicant was not divorced from his first wife.

10. The Applicant and his first wife applied for a divorce on 10 August 2010 and their divorce was granted in 2010. In granting the divorce the Registrar determined that the husband’s marriage to his first wife was proved.  

11. The Respondent came to Australia in April 2012 on a partner visa, sponsored by the Applicant.

12. The Applicant and Respondent separated in February 2013. They have no children.   

The Law & Discussion

1. Section 51 of the Family Law Act 1975 (Cth) (“the Family Law Act”) states that an application “for a decree of nullity of marriage shall be based on the ground that the marriage is void.”

2. Section 23B(1) of the Marriage Act 1961 (Cth) provides that a marriage is void where “either of the parties is, at the time of the marriage, lawfully married to some other person”.

3. It is clear that at the time the Applicant participated in the marriage ceremony with the Respondent in 2009 he was lawfully married to another person. He had been validly married and was at that stage not divorced.

4. Section 113 of the Family Law Act states that the court may make such declaration as is justified in matrimonial proceedings. I am of the view that in circumstances where the Applicant was already married to his first wife at the time of his marriage to the Respondent and there being no suggestion that the Respondent was aware of this circumstance at the time, a declaration of nullity is justified.

5. Accordingly, a declaration will be made that the marriage between the Applicant and Respondent conducted in Country B in 2009 is null and void.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 12 April 2018.

Legal Associate: 

Date: 10 April 2018