OSPREIGH & FUNG

[2009] FamCA 1185

FAMILY COURT OF AUSTRALIA

OSPREIGH & FUNG [2009] FamCA 1185

FAMILY LAW – NULLITY

Family Law Act 1975 (Cth)

APPLICANT: Mr Ospreigh

RESPONDENT: Ms Fung

FILE NUMBER: MLC 8606 of 2009

DATE DELIVERED: 20 November 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 20 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Nehmy

SOLICITOR FOR THE APPLICANT: Slater & Gordon

COUNSEL FOR THE RESPONDENT: Ms Nedelkovski

SOLICITOR FOR THE RESPONDENT: Berrigan Doube Lawyers

Orders

1. That the marriage solemnized on … July 2006 between the parties be declared null and void.

2. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

3. That the solicitor for the applicant engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8606 of 2009

MR OSPREIGH

Applicant

And

MS FUNG

Respondent

REASONS FOR JUDGMENT

1. The husband applied for a decree of nullity on the basis that at the time the parties entered into the marriage the wife was still married.  There is a sequence of facts set out in the affidavit material, including material provided by the wife, which seems very clear that the marriage in which she was a party prior to this marriage had not been brought to an end by a decree of divorce.  I am satisfied in the circumstances that the ground for a nullity has been established.  Accordingly I declare that the marriage solemnised on … July 2006 is null and void. 

2. The granting of a decree of nullity also gives rise to the jurisdiction for the court to make an order under Part VIII of the Family Law Act 1975 (Cth) (“the Act”) in relation to financial matters. I have been told by Mr Nehemy of counsel on behalf of the husband, and it is not disputed by the practitioner for the wife, that the settlement amounts to about 10 per cent of the equity in a home, which was owned by the husband prior to the relationship commencing, and there is evidence of a marginal increase in the value, so the reality is that it is the same asset the party brought in to the marriage.

3. I am told that there are no factors that I need to take in to account for the purposes of s 75 of the Act. There is an age gap between the parties and the wife is working on a full-time basis. There is a dispute between the parties about an asset in China but there is a certain ring of reality about the issue, having regard to the amount of money involved, and both parties seem to agree that there is an element of pragmatism about resolving the matter this way. The reason I am setting these details out is because it is not the function of the court to simply rubberstamp orders which bring to an end the financial obligations each to the other. Legislation requires that a court ought only make an order if it is satisfied that in the circumstances the order is just and equitable.

4. Having had an opportunity to read the file and having heard what the parties have each said through their practitioners I am satisfied that this is an order that is just and equitable in all of the circumstances. 

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

Associate: 

Date: 4 December 2009