Onyx & Geller

[2007] FamCA 1336

FAMILY COURT OF AUSTRALIA

ONYX & GELLER [2007] FamCA 1336

FAMILY LAW – NULLITY – Application for decree of nullity – Foreign marriage – Respondent allegedly lawfully married to someone else in the Philippines at the time of marriage in New Zealand – Issue of sufficiency of notice of hearing to respondent – Issue of outcome of respondent’s proceedings in the Philippines to have the earlier marriage annulled – Specific directions to be made re substituted service, notice to the respondent of failure to participate, and final listing

Family Law Act 1975 (Cth)

APPLICANT: Mr Onyx

RESPONDENT: Ms Geller

FILE NUMBER: TVF 304 of 2006

DATE DELIVERED: 7 November 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Cairns

JUDGMENT OF: Moore J.

HEARING DATE: 25 October 2007

REPRESENTATION

THE APPLICANT HUSBAND: Appeared on his own behalf

THE RESPONDENT WIFE: There was no appearance by or on behalf of the respondent wife

Orders

1. The matter is listed for mention before the Registrar at Cairns Registry at 9.30am on Wednesday 14 November 2007 for the purpose of making further directions about the following matters:

   (i)the allocation of a final date for hearing before me in the February sittings;

   (ii)an order for the service on the wife, by substitution if necessary by being forwarded to persons or places where it is reasonable to anticipate information might be forwarded to her or brought to her attention, of the following:

   (a)the statutory declaration with further documents annexed signed by the husband on 19 September 2007;

   (b)any other document on which the husband intends to rely in support of his application;

   (c)a copy of these Reasons;

   (d)a copy of orders made this day;

   (e)a letter from the Registry addressed to the wife advising her of the date for final hearing to be allocated in the February sittings, that if there is no appearance by her or on her behalf on that date the application for a decree of nullity will be dealt with in her absence and for that purpose it will be presumed that her marriage to Mr R in the Philippines on … February 2001 was valid at the time of her marriage to Mr Onyx in New Zealand on … March 2004. 

2. The Registrar is requested to draft and provide to the husband a letter according to order 1(e) hereof. 

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

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: TVF304 of 2006

MR ONYX

Applicant

And

MS GELLER

Respondent

REASONS FOR JUDGMENT

1. On 12 December 2006 the husband, who acts for himself, filed an application seeking an order ‘that the marriage of the parties be annulled so that it was as if it never occurred’ or ‘such other order the Court sees fit’.  The marriage to which the application relates was solemnised in New Zealand on … March 2004.  There are no children of their relationship.  The ground on which the application rests is that the respondent wife was at the time lawfully married to Mr R in the Philippines on … February 2001. 

2. To support the application he filed at the same time an affidavit sworn 21 November 2006. 

3. Being unaware of her place of residence at the time, in December 2006 the husband contacted the wife’s employer to be told they do not give out information about employees and suggested he direct any enquiries to their head office.  Presumably acting on this advice, in January 2007 he forwarded to the wife at her work address an acknowledgement of service which she returned. She acknowledged service on 19 January of his application and November 2006 affidavit.  To it she attached a statutory declaration she signed on 30 January setting out her response to his affidavit.  These documents were lodged with the Court [exhibit 2]. 

4. The application was returnable on 5 February 2007 and came before Monteith J.  The court record notes an appearance by the husband but no appearance by or on behalf of the wife.  The matter was adjourned to the Registrar for directions for hearing.  On 30 May 2007 the Registrar made orders for the applicant to file an affidavit by 27 July, listed the matter for a compliance check on 15 August 2007 and allocated the matter for hearing in the circuit sittings then scheduled for September.  The dates were changed and although 12 October was then allocated that date was subsequently changed to accommodate changes to listings in the circuit sittings.  When the matter was called the husband appeared but there was no appearance by or on behalf of the wife. 

5. The husband has not advised her of the date ultimately allocated for hearing [he says he does not know where she lives or where she works] and nor is it apparent from any record on the Court file that she was advised by the registry of the date allocated within the circuit sittings [she has never filed a Notice of Address for Service and the date on the statutory declaration she signed is as imprecise as “… Road, Y”]. 

6. The husband more recently signed a further statutory declaration on 19 September 2007 to which further documents have been attached.  This has not been served on the wife.

7. Such facts as there are available can be outlined briefly:

   (a)The husband was born in Switzerland on … May 1971.  The wife was born in the Philippines on … June 1980. 

   (b)After exchanging correspondence over several months, in early 2003 they met in the Philippines where she then lived.  At that time the husband was living in New Zealand.  He visited the wife in the Philippines again in the middle of that year on his return to New Zealand from a visit to Switzerland.  The wife then joined him in New Zealand in November 2003. 

   (c)A marriage ceremony between them was performed on … March 2004.  The Registrar of births, Deaths & Marriages in New Zealand subsequently issued a Certificate of Marriage and a certified copy of it is in evidence. 

   (d)In 2004 the husband attempted to register their marriage with the Embassy of Switzerland in Wellington so as to facilitate future travel to Switzerland.  However, he was informed by an Embassy official of an existing marriage registered in the wife’s name by authorities in the Philippines. 

   (e)There is a letter dated 23 July 2004 from the husband and wife to the Embassy of Switzerland in Wellington about their concern that the records were in error and were not a correct reflection of the facts.  The letter says they have records showing no marriage recorded as of July 31 2003.  Indeed, there is amongst the documents the husband annexed to his statutory declaration a copy letter dated 31 July 2003 from the National Statistics Office in Manila certifying that the wife does not appear in the National Indices of Marriages for Brides for the years 1973 to 2000; however, this date is before the recorded marriage to Mr R.  In any event their letter of 23 July says in part: ‘As we strongly believe in an alteration of facts by a third party, we like to have a complete copy of [the wife]’s recorded information as soon as you receive them from the Swiss Embassy in Manila.  We are very much interested to adjust any incorrect information.’

   (f)On 27 July 2004 a reply was addressed to the husband and enclosed the wife’s original birth certificate and a copy of her the marriage certificate recording her marriage to Mr R in the Philippines on … February 2001. 

   (g)The wife subsequently engaged a lawyer and instituted Court proceedings in the Philippines to have the marriage annulled.  The husband also attaches to his statutory declaration [not served on the wife] a copy of documents said to have been lodged by her with the Regional Trial court at Lagawe, Ifugao. In English, the document sets out her account of the history surrounding her relationship with Mr R and asks that the marriage be declared null and void.  It is signed by her Counsel whose contact details appear on the document the husband has provided. 

   (h)In his November 2006 affidavit the husband said ‘the Philippine court case is still pending but no final decision has been made yet regarding [the wife]’s application for nullity of marriage in the Philippines.  To my knowledge the marriage is therefore still valid.’  He repeats this statement in his more recent statutory declaration signed on 19 September 2007, but what enquiries he has made or the basis of his knowledge is not apparent. 

   (i)In 2005 they moved from New Zealand to Australia and lived at Y, a suburb of Brisbane. They attempted again to register their marriage with the Embassy of Switzerland in Sydney. They received the same information from the Consul General to the effect it could not be registered due to the fact that, according to documents submitted, the wife’s civil status was married at the time of their marriage ceremony. 

   (j)Their relationship deteriorated over a period in 2006 while the husband was in Switzerland. He returned to Brisbane in mid-September 2006 and on the day of his return the wife left their home. 

   (k)The husband says he has not seen her since her departure and he does not know now where she lives or works. Nonetheless, he was able to serve documents on her in January this year by forwarding them to her at her place of work. 

   (l)In the statutory declaration the wife signed she canvassed various matters of no relevance here, but she does refer to the husband’s ‘accusation of bigamy’ and continues:

   ‘…he states in the attached letter to the Swiss Embassy that an unknown third party was implicated, and it was for this reason that I involved a lawyer in the Philippines to investigate with this matter.  As [the husband] also says, the investigations are continuing and for him to accuse me of bigamy, before the matter has been resolved in the Philippines is baseless and hurtful.  I also question [the husband’s] belief that a file has been written about me by the Philippines embassy and my inquiries to (unreadable) shows no indication of this.’

   She goes on to say she has no intention of seeking any financial settlement and her only wish was to have an amicable divorce, a process she intends to begin after the ‘one year and one day’ after their separation. 

8. A couple of issues arise from all this.  One is whether the proceedings should be brought to conclusion without further notice to the wife of the hearing date or service of the additional documents provided by the husband attached to his September 2007 statutory declaration.  The other is whether they should conclude without further evidence of the outcome of the nullity proceedings commenced by the wife in the Philippines in 2004. 

9. The first of course is about procedural unfairness.  On the one hand it might be thought that at least some attempt should have been made to notify her by whatever means available of the time and date of final hearing by forwarding correspondence to her, for redirection if necessary, to the address which successfully found her in January or perhaps to relatives or others who might forward the material to her.  On the other hand, the view might be taken that as a respondent to litigation she has the responsibility for a measure of active participation.  After all, the application served had on its face the time and date of 10am 5 February 2007 so she was aware the matter was to be before the Court on that occasion.  She responded by completing the acknowledgement and sending the declaration that became exhibit 2, but she did not appear or arrange legal representation or, so far as I can tell from the file, communicate with the Court after the initial event to enquire about the disposition of the matter on that day or about any subsequent direction it may have taken.  This passive stance is underscored by her failure to provide an address by the filing of a Notice of Address for Service or otherwise, thus giving the applicant or the Court the means of communicating with her. 

10. Weighed in a very tight balance, ultimately I slightly favour the former.  There being no suggestion from the husband of any urgency in having the application concluded, steps can be taken to do what reasonably can be done to advise the respondent of a specific date of hearing his application for a decree of nullity.  That will also provide the opportunity to serve on her, by indirect means if necessary, the more recent statutory declaration of 19 September 2007 with further documents annexed.  How will that be achieved?  There are several possibilities.  First, documents could be sent to her by the same means at the same address the earlier documents were served on her in January, presumably by being addressed to her at the head office of her [then, perhaps now] workplace. She may have relatives who are likely to be in touch with her, in whatever country they might live, and this appears not to have been explored for possibilities. There is reference, for example, by the husband in his November 2006 affidavit to the wife’s sister and brother in law living in Switzerland when he was there in the latter part of 2006.  There is also her Counsel in the Philippines litigation who might be a conduit to her whereabouts.  The point is there are avenues that have not been explored and should be. 

11. There is also the [perhaps] unresolved question of the status and stage of the court proceedings the wife instigated in the Philippines, a grievance she levels at the husband in her statutory declaration. Of course if she were to be successful in obtaining a decree of nullity in that action it would bring an entirely different complexion to the husband’s application and the validity of their marriage in New Zealand in 2004.  The wife’s counsel in those proceedings is named on the face of the document he attached to the more recent statutory declaration and the document itself provides the means by which information may be sought about the outcome, if any, of those proceedings.  However, whether the husband would be able to obtain that information from the wife’s Counsel or the Court is quite another question, the answer to which I do not have. 

12. That said, it is not to suggest the husband has the onus of establishing the current situation there, though views about that might differ as a review of discussion in various reported cases demonstrates.  My view is that as he has put in serious question the validity of the marriage in New Zealand [by producing the certified copy of the certificate of her marriage to Mr R in 2001 along with letters from two separate Embassy of Switzerland officials in both New Zealand and Australia as to her married status] the onus shifts to the wife who is asserting the validity of the marriage to the husband.  Therefore, it is for her to provide evidence of the stage or outcome of the litigation she instigated in the Philippines to determine her status at the time. 

13. In the circumstances the matter must be referred back to the Registrar in the Cairns Registry for further directions as to the following matters:

1. the allocation of a final date for hearing before me in the February sittings;

2. an order for the service on the wife, by substitution if necessary by being forwarded to persons or places where it is reasonable to anticipate information might be forwarded to her or brought to her attention, of the following:

   a.the statutory declaration with further documents annexed signed by the husband on 19 September 2007;

   b.any other document on which the husband intends to rely in support of his application;

   c.a copy of these Reasons;

   d.a copy of orders made this day;

   e.a letter from the Registry addressed to the wife advising her of the date for final hearing to be allocated in the February sittings, that if there is no appearance by her or on her behalf on that date the application for a decree of nullity will be dealt with in her absence and for that purpose it will be presumed that her marriage to Mr R in the Philippines on … February 2001 was valid at the time of her marriage to Mr Onyx in New Zealand on … March 2004. 

I certify that the preceding fifteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate 

Date:  7 November 2007