Padma & Padma

[2007] FamCA 670

FAMILY COURT OF AUSTRALIA

PADMA & PADMA [2007] FamCA 670

FAMILY LAW - NULLITY - Evidence

Marriage Act 1961 (Cth)

C and C (1984) 23 FAM L.R. 491
Axon v Axon (1937) 59 CLR 395
Fox v The Public Trustee (1984) FLC 91-250

APPLICANT: MR PADMA

RESPONDENT: MRS PADMA

FILE NUMBER: PAF 1389 of 2006

DATE DELIVERED: 2 July 2007

PLACE DELIVERED: Parramatta

JUDGMENT OF: WADDY J

HEARING DATE: 16 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: The Applicant husband in person

SOLICITOR FOR THE APPLICANT: Nil

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. The marriage solemnized at Wellington, New Zealand on 18 February 2006 between the parties is declared to be absolutely null and void.

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 1389  of 2006

MR PADMA

Applicant

And

MRS PADMA

Respondent

REASONS FOR JUDGMENT

1. This matter came into the duty list on 16 March 2007.  The applicant husband, appeared in person.  There was no appearance for the respondent wife.

UNDEFENDED HEARING

1. The applicant relied upon an Acknowledgement of Service by Karina Sagaga, of the firm of Gaskin Avison, Lawyers of Lower Hutt, New Zealand.  Therein Ms Sagaga stated she was the person served with the documents on 15 December 2006 and that she was at that time “the lawyer for the person served”, the wife.

2. On 5 January 2007 the respondent wife, swore an affidavit before her solicitor in New Zealand, which included as #6 “I do not oppose the orders sought by the applicant in these proceedings”.

3. In those circumstances, I proceeded with the hearing in the absence of the wife.

RELIEF SOUGHT

1. The applicant moved on his Application for Final Orders, Form 1, filed 17 November 2006.  By it he sought the following order:

   “The marriage entered into between the applicant and respondent on 18               February 2006 at Wellington, New Zealand be declared null and void.”

2. In  so doing he relied upon the following evidence:

   (a)      The Affidavit to the Application sworn 8 November 2006;

   (b)      The Affidavit of the wife sworn 5 January 2007;

   (c)      Copy of Particulars of Marriage No … issued by the Department of     Internal Affairs from its registry at Wellington, New Zealand;

   (d)Affidavit of Susan Warda, Solicitor on 17 November 2006.

MARRIAGE

1. I am satisfied that the parties went through a ceremony of marriage, as claimed.   A copy of a Certificate of Particulars of Marriage issued by the Wellington Registry of the New Zealand Department of Internal Affairs Notice number … was produced to the Court.  It described the bride as a “[Health professional]” and her relationship status as “never married or in a civil union”.  Both parties gave their address as G, N.S.W., Australia.

2. I accept the following evidence:

3. First, that of the wife, that she married the applicant on 18 February 2006 in Wellington, New Zealand.

4. Secondly, that of the wife, that at that time, the wife did not tell the husband that she was already married.

5. Thirdly, that the wife had been married in India when she was aged 19.  Her husband was Mr T.

6. Fourthly, that of the former solicitor for the husband, that the wife had applied to the Department of Immigration in New Zealand to sponsor her first husband to permit him to reside in New Zealand, as he was a resident of India.

7. Fifthly, that of the applicant, that the parties had lived together from November 2005 until 26 January 2006, and that they had separated in April 2006.

8. Sixthly, that of the applicant that there were no children of the parties, and no other cases between the parties either ongoing or in relation to property and/or spousal maintenance.

9. I find the applicant to be present in Australia at the relevant times (Section 39(4)).

10. I find that the proceedings fall within the definition of matrimonial cause in Section 4(1)(a) of the Family Law Act 1975.

11. I find the hearing has occurred more than 56 days after the filing of the Application (Rule 4.28).

EVALUATION

1. On these findings of fact, on evidence which is meagre but uncontested, I am asked to make a declaration of nullity, in effect by both parties, although only the husband brings the application.

2. Needless to say the parties cannot by consent confer on the Court jurisdiction to make an order.

3. The Court, it seems to me, applying the onus of proof of the balance of probabilities, must be persuaded that it is more likely than not that the evidence adduced provides an adequately probative factual matrix upon which the Court can confidently base its orders.

4. I am persuaded that the marriage took place as alleged.  It would thus attract a presumption that it remains valid, unless there are grounds upon which to declare it void.  (See Axon v Axon (1937) 59 CLR 395 and e.g. Fox v The Public Trustee (1984) FLC 91-250).

5. The bride’s evidence as to her prior marriage is also sufficiently precise to attract a presumption of validity.

THE LAW

1. Part VA of the Marriage Act provides for the recognition of foreign marriage.  It’s object, as set out in Section 88A, is to give effect to Chapter II of the Convention on Celebration of the Validity of Marriages, signed at the Hague on 14 march 1978.

2. Section 88D(2) of the Marriage Act, (a provision inserted in the Act in 1985), provides:

   SECT 88D

   Validity of marriages

   (1)       Subject to this section, a marriage to which this Part applies   shall be recognized in Australia as valid.

   (2)       A marriage to which this Part applies shall not be recognized as   valid in accordance with subsection (1) if:

   (a)either of the parties was, at the time of the marriage, a   party to a marriage with some other person and the last‑           mentioned marriage was, at that time, recognized in   Australia as valid;

   (b)      …

   (c)        …

   (d)      …

3. Appling subsection (1), I would have automatically recognized the subject marriage as valid, were it not for the provisions of subsection (2)(a).

4. I am aware that the Full Court, constituted by Justices Baker, Kay and Burton, considered Part VA of the Marriage Act, especially Sections 88D and 88(4) in C and C (1984) 23 FAM L.R. 491.  Their Honours found that the only basis on which a decree of nullity can be pronounced under Australian Law is on the basis that the marriage is void.

5. The unusual facts in that case involved a submission that the marriage in question was void for non-consummation, despite the wife having borne four children to the husband during the course of the marriage.  It had been solemnized in England in 1958 and endured until the parties had separated in Australia in 1996.  It was held that the alleged defect, if it had been proved, would at best have rendered the marriage voidable under English Law (applicable as the place of solemnization of the marriage) and not void.

6. Moreover, their Honours held that there was nothing in Part VA of the Marriage Act to require an Australian Court to treat such a marriage as void for the purposes of Australian Law.

7. The decision sets out (at p 500) the text of the relevant convention.  Of the five grounds stated in Article 11 on which a Contracting State may refuse to recognize the validity of a (foreign) marriage, non-consummation is not one.

8. Germane to this matter, however, is ground 1:

   “1.      One of the spouses was already married.”

9. Article 11 continues, however, after enumerating the other four grounds, with this provision:

   “However recognition may not be refused where, in the case mentioned in subparagraph 1 of the preceding paragraph the marriage has subsequently become valid by reason of the dissolution or annulment of the prior marriage.”

10. In the circumstances of this matter, neither party contends that the first marriage was either annulled or dissolved.  To the contrary, the respondent bride swears she was already married at the time of the second ceremony.  She also tried to utilize that (continuing) status for the benefit of her first husband’s immigration.

11. Apart from that, there is no other evidence concerning the state of the first marriage.  It would obviously be absurd to cast on the applicant the burden of proving a negative – that there had been no annulment and that there had been no dissolution of the first marriage. Where, one might ask, would he even begin?

12. But is there sufficient evidence that the prior marriage still subsisted at the time of the New Zealand ceremony?  Most of the reported cases, which relate frequently to testators, or absent partners of whom nothing may have been heard for years – sometimes very many years.  However, here I have the wife’s sworn testimony that she did not tell the husband at the time that she was “already married”.  Where the issue of nullity is not contested (unlike the situation in nearly all the reported cases), I am prepared to hold that testimony of hers sufficient – if barely.  Moreover her evidence of that felicitous state seems to be corroborated by the reported actions of the wife in attempting to use that prior marriage as the basis for sponsoring her first husband for immigration purposes. 

13. Whilst I can envisage many situations where such scant evidence would not carry conviction, here, where the relief sought is supported by evidence from both parties, I am persuaded it is.

14. The situation might be different were another party disputing the validity or continuance of the first marriage.  Here the respondent wife is affirming it.

15. I find that the prior marriage of the bride and some other person was at the time, recognized or valid in Australia, there being no evidence to, and neither party asserting, the contrary.

16. It follows that the subject ceremony of marriage of 18 February 2006 is void.

DECLARATION

1. Having considered all the evidence available, and the relevant law, I make the following declaration:

   1.The marriage solemnized at Wellington, New Zealand on 18 February 2006 between the parties is declared to be absolutely null and void.

I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Waddy

Associate: 

Date: 

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as PADMA & PADMA