PAINE & CACATAN

[2012] FamCA 959

FAMILY COURT OF AUSTRALIA

PAINE & CACATAN [2012] FamCA 959

FAMILY LAW – NULLITY – Where the Respondent was married to another at the time of the marriage to the Applicant – Marriage to the Applicant declared null and void

APPLICANT: Mr Paine

RESPONDENT: Ms Cacatan

FILE NUMBER: TVC 332 of 2012

DATE DELIVERED: 6 November 2012

PLACE DELIVERED: Mackay

PLACE HEARD: Mackay

JUDGMENT OF: Bell J

HEARING DATE: 5 November 2012 and
6 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bailey, Solicitor appearing for the Applicant

SOLICITOR FOR THE APPLICANT: SR Wallace & Wallace, Solicitors

COUNSEL FOR THE RESPONDENT: No appearance by the Respondent

Orders

IT IS ORDERED THAT:

1. The marriage solemnised at … on … January 2011 between the parties is declared to be absolutely null and void.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Paine & Cacatan 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 MACKAY

FILE NUMBER: TVC 332 of 2012

Mr Paine

Applicant

And

Ms Cacatan

Respondent

REASONS FOR JUDGMENT

1.This is an application on the part of Mr Paine for a declaration of nullity of his purported marriage to the respondent, Ms Cacatan.  It is alleged that he married the respondent in January 2011.  The circumstances surrounding such marriage are set out in his affidavit.  The matter came on before me and it appeared to me quite clearly that the legal representatives of the applicant had failed to appreciate that one of the most important things in a ground which alleges bigamy, is to prove the existing previous marriage by admissible evidence, as was failed to be done yesterday. 

2.And it was only a result of the generosity of my associate that I have decided to hear the matter today.  If it had come directly to me, I would not have done so, and it would have been a matter for the client to take whatever remedies he may be advised to do so against his legal advisers.  However, today I have put before me an affidavit of Mr Paine in which he sets out what appears to be a document purporting to be a marriage certificate between the respondent and a Mr S.  This document is virtually indecipherable so far as I am concerned, and I would have thought that courtesy would have dictated that a translated certificate, or an attempt to translate the certificate would have been put before me. 

3.I am assured from the bar table however, by Mr Bailey, that he has deciphered it himself.  It refers to a marriage between Mr S and Ms Cacatan.  I can at least see that in what I consider to be a disgraceful annexure to the affidavit.  There is a further annexure to that affidavit which is a document from the Department of Immigration and Citizenship headed Decision Record which, in itself, seems to support the fact that Ms Cacatan was previously married, and that such marriage has not been dissolved, notwithstanding her attempt to put before the relevant authorities a CENOMAR which is, as I understand, a certificate of no marriage.

4.This appears to have been a forgery for which she paid some 5000 Philippine pesos.  See page 2 of that aforesaid annexure.  So I am satisfied there was at the date of the purported marriage between the applicant and the respondent, the respondent had been previously married and such marriage was continuing as at that date.  I have no hesitation in pronouncing the decree of annulment. 

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 6 November 2012.

Associate: 

Date:  6 November 2012