Orson and Hemmingway

[2017] FamCA 320

FAMILY COURT OF AUSTRALIA

ORSON & HEMMINGWAY [2017] FamCA 320

FAMILY LAW – NULLITY – leave granted for the applicant to proceed on an undefended basis – decree of nullity ordered on the ground that as at the date of marriage the respondent was lawfully married to some other person

Family Law Act 1975 (Cth) s 51 Marriage Act 1961 (Cth) ss 23B, 23B(1)(a)

APPLICANT: Mr Orson

RESPONDENT: Ms Hemmingway

FILE NUMBER: MLC 5159 of 2016

DATE DELIVERED: 4 April 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 4 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Cain

SOLICITOR FOR THE APPLICANT: Howard Bear Legal Consulting Services

THE RESPONDENT: No Appearance

Orders

1.   That the applicant be granted leave to proceed on an undefended basis.

2. That pursuant to s 51 of the Family Law Act 1975 (Cth), I pronounce a decree of nullity of the marriage solemnized on … 2012 at Suburb B in the State of Victoria between the applicant and the respondent on the ground that as at that date, the marriage was void because the respondent was lawfully married to another person.

3.   That all extant applications be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Orson & Hemmingway 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 MELBOURNE

FILE NUMBER: MLC 5159  of 2016

Mr Orson

Applicant

And

Ms Hemmingway

Respondent

REASONS FOR JUDGMENT

1. By Initiating Application filed 12 December 2016, the applicant seeks a decree of nullity of his marriage to the respondent.  The basis for that application is that on the date the parties married, the respondent was married to another person. 

2. The parties to these proceedings were married in 2012 and separated in 2014. 

3. The respondent to the application does not appear at Court today.  She was not present at the callover of cases conducted at 10:00 am.  Prior to the commencement of the hearing, my court officer called the respondent.  That occurred at approximately 10.40 am.  There was no response to that call.  In the circumstances, the applicant seeks to proceed with his application on an undefended basis.

4. In support of that application he relies upon the affidavit of service filed on 8 February 2017 and 28 March 2017.  The affidavit of service filed 8 February 2017, which is an affidavit sworn by Ms C confirms that the Initiating Application, the court brochure Marriage, Families Separation and the affidavit of the applicant sworn 7 December 2016 was served upon the respondent by hand on 19 January 2017.  That day, the respondent signed an acknowledgement of service of those documents.  The deponent to the affidavit of service confirmed in her affidavit that she knows the respondent, and that the person served is the person shown in the photograph annexed to the acknowledgement of service.

5. The matter was listed before Registrar Marrone on 8 February 2017.  That day, the Registrar made orders requiring that both parties appear or be represented at the adjourned hearing date, that is, this day. Further, an order was made at paragraph 4 of those orders that by 22 March 2017 the respondent file and serve upon the applicant a response to the applicant’s Initiating Application and any affidavit relied upon by her in reply to the affidavit of the applicant.  The respondent has filed no material in compliance with that order, and has not appeared at Court this day.

6. Order 6 of those orders required that the applicant cause a sealed copy of those orders to be served upon the respondent by 21 February 2017.  The affidavit of service of Ms C, filed 28 March 2017, confirms that the respondent was served with a sealed copy of the orders of 8 February 2017 on 16 February 2017.  That affidavit confirms that service was affected by hand. 

7. Having regard to the two affidavits of service, I am satisfied that the application and supporting affidavit has been served upon the respondent.  I am satisfied further that the respondent has had notice of the hearing listed this day, and of the orders made requiring her to appear at this hearing and to file any material in response in anticipation of the hearing.  I am satisfied that the respondent has not complied with those orders.  She does not appear at Court and has filed no material in response.  Having been satisfied of those matters, I am satisfied that it is appropriate that the matter proceed on an undefended basis.

8. Section 51 of the Family Law Act 1975 (Cth) provides that an application for a decree of nullity of marriage shall be on the ground that the marriage is void. The onus is on the applicant to establish on the balance of probabilities that the marriage is void pursuant to one of the grounds set out in s 23B of the Marriage Act 1961 (Cth). Section 23B(1)(a) of the Marriage Act 1961 (Cth), provides:-

   (1)A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:

   (a)either of the parties is, at the time of the marriage, lawfully married to some other person;

9. That is the ground relied upon by the applicant in support of his application for a decree of nullity. 

10. The evidence of the applicant in support of his application is that contained in his affidavit filed 12 December 2016.

11. The applicant deposes at paragraph 1 of his affidavit that at the time of the marriage to the respondent, she was married to Mr E in 1999, and that that marriage had not been dissolved at the time of the marriage by him to the respondent, that marriage having been affected in 2012. 

12. In support of that allegation, the applicant relies upon a further affidavit of Ms C, sworn 25 August 2016.  The affidavit of Ms C sworn that day exhibits a search certificate of the seminar obtained from the office of the Country D Statistics Authority, Office of the Civil Registrar General dated 13 August 2016.  That certificate, which is a certification based on the records of marriages for the period 1945 to 2016, provides that the respondent, Ms Hemmingway was married in 1999 at in Country D to Mr E.

13. In addition to that search of the public records of Country D, the applicant also relies upon the affidavit of service of Ms C, filed 28 March 2017.  That affidavit provides, at paragraph 5, as follows:

    I went to the house of [Ms Hemmingway],  we met for the second time.  I served to her the sealed court order coming from [Mr Orson].  She said that she is not interested to attend the hearing.  She would no longer spend money to secure visa and book flight to go back to Australia. Because she is just in vacation here in [Country D] and will be leaving soon for [Country F].

14. Further, in the affidavit of service filed 8 February 2017, Ms C deposes as follows:

    I had the following conversation with the person at the time of the service.  The person served admitted when I asked that she was the person shown in the passport photo that her name was [Ms Hemmingway] and she was married to [Mr Orson], and [Ms Hemmingway] also admitted that she was still married to [Mr E] at the time she married [Mr Orson].

15. Having regard to the evidence of both the applicant and Ms C, I am satisfied that at the time the marriage between the applicant and the respondent, which was solemnised in 2012, the respondent was married to another person, Mr E.  Having regard to that unchallenged evidence, I am satisfied that the respondent was, at the time of the marriage between the parties, lawfully married to another person.  On that basis, I find that the marriage between the applicant and the respondent is void, and will pronounce a decree of nullity of the marriage between the applicant and the respondent.  The orders I therefore make are as follows.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 4 April 2017.

Associate:

Date:  4 April 2017