OLMPEI & BANIENEVA

[2010] FamCA 21

FAMILY COURT OF AUSTRALIA

OLMPEI & BANIENEVA [2010] FamCA 21

FAMILY LAW – NULLITY – Application for decree of nullity – Where the Wife was already married at the time of the ceremony – Where there was no record that the first marriage had been dissolved – Assumed the first marriage is still valid – Application acceded to

FAMILY LAW – PRACTICE AND PROCEDURE – Service – Where the Wife returned to the Philippines – Where the Husband has been unable to contact her – Where the Husband has sent documents to the address on her passport – Service deemed to be affected

APPLICANT: Mr Olmpei

RESPONDENT: Ms Banieneva

FILE NUMBER: BRC 7772 of 2009

DATE DELIVERED: 13 January 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 13 January 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: The Applicant Husband appeared in person

COUNSEL FOR THE RESPONDENT: There was no appearance by the Respondent Wife

Orders

1. The marriage solemnised at B in the State of Queensland on

   
   

   … December 2008 between the Applicant and Respondent is declared to be absolutely null and void.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7772 of 2009

MR OLMPEI

Applicant

And

MS BANIENEVA

Respondent

REASONS FOR JUDGMENT

1. The applicant in these proceedings is Mr Olmpei, that’s O-l-m-p-e-i.  Mr Olmpei is a widower who originally was born in Europe.  Mr Olmpei informs the court, and for present purposes I accept that he came to Australia in 1953.  He is now an Australian citizen.  In any event, he’s currently in Australia, has been for many years.  Annexed to his affidavit is a marriage certificate evidencing that on … December 2008, in Queensland, he married Ms Banieneva B-a-n-i-e-n-e-v-a.  The marriage certificate records that she was never validly married but her birth place was the Philippines.  Her age is given as 41 years and the names of her parents are given as … and ….

2. So I’m satisfied that there was a ceremony of marriage.  It now transpires that there is a document also annexed to the applicant’s affidavit coming from the National Statistics Office in Manila, dated 4 June 2009, that Ms Banieneva, who is alleged to have been born in, 1967, in the Philippines, to … and …, was, in fact, married in the Philippines in August 1998.  It’s a matter of record that there’s no divorce in the Philippines.  It’s possible that the husband is now deceased but the reality of the situation is the respondent to these proceedings returned to the Philippines shortly after the marriage ceremony and has not been heard of since.

3. She was to come to Australia for a visa application.  She has not, in any way, corresponded.  I am satisfied that the respondent has forwarded, by registered post, documents to the respondent at the address shown on her passport documentation, and that was sent by express international courier and it appears that there has been no response to that.  The view that I take is that, in the whole of the circumstances, it’s an appropriate case to dispense with service.  He’s done the best he can to ensure the documents have been served on the respondent.  I am satisfied that the respondent is one and the same person.  Her parents have exactly the same names.  In the marriage certificate document she states her age as 41 years of age.  The documentation from the registrar in the Philippines says that she was born in October 1967, which means that as at the date of marriage in 2008 she was 41 years of age.  Her birthplace is the same, the name is the same, the parents’ names are the same, so I am satisfied to that effect.

4. There is clearly a misrepresentation made by the respondent in saying she was never validly married.  She was validly married.  She could have asserted that she was a widow.  She didn’t say that.  So, having failed to disclose the existence of the marriage, I proceed on the basis that that marriage has not been dissolved in any other overseas jurisdiction; that, in fact, her husband is still alive.  It’s circumstances where a degree of nullity is justified.  I’ll make an order that the marriage, as set out at B in Queensland, of

   
   

   … December 2008, between the applicant and the respondent is declared null and void.  Thank you.  Your order will issue in due course. 

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  13 January 2010