Pennington & Mosley

Case [2023] FedCFamC1F 632

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Pennington & Mosley [2023] FedCFamC1F 632

File number(s): SYC 8815 of 2022
Judgment of: ALTOBELLI J
Date of judgment: 26 July 2023
Catchwords: FAMILY LAW – NULLITY – Where the parties underwent a civil ceremony in the United States – Where the parties held the belief the civil ceremony was not recognised in Australia – Where the parties underwent a subsequent marriage ceremony in Australia – Consideration on the prohibition of second marriage ceremonies – Consideration into the words “some other person” in s 23B(1)(a) of the Marriage Act 1961 (Cth) – Decree of nullity ordered.
Legislation:

Family Law Act1975 (Cth) ss 6, 51, 102

Marriage Act1961 (Cth) ss 23B, 88C, 88D, 94, 113

Crimes Act1900 (NSW) s 92

Cases cited:

Wellard & Clapton [2020] FamCA 642

Yoon & Lau [2020] FamCA 281

Zau & Huang [2015] FamCA 873
Division: Division 1 First Instance
Number of paragraphs: 30
Date of hearing: 26 July 2023
Place: Sydney
The Applicant: Litigant in person
The Respondent: Litigant in person

ORDERS

SYC 8815 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS PENNINGTON

Applicant
AND:

MR MOSLEY

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

26 JULY 2023

THE COURT ORDERS THAT:

1.A decree of nullity is made in the marriage between the Applicant wife and the Respondent husband in 2016.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pennington & Mosley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT
(Revised from Transcript)

ALTOBELLI J:

INTRODUCTION

  1. In the matter, I provide the following ex tempore reasons for judgment.  I have made a decree of nullity of the marriage between the applicant wife (“the wife”) and the respondent husband (“the husband”) that was made in 2016 and I provide the following reasons for having done so.

    BACKGROUND

  2. The material before the Court consisted of the following documents.  There was the application for nullity filed on 12 December 2022 by the wife and her affidavit of support filed on 12 December 2022.  I made orders on 16 March 2023 requesting further evidence, and as a result of that order, the wife filed a further affidavit on 3 April 2023.  On 9 January 2023, the husband…

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AGLC
Pennington & Mosley [2023] FedCFamC1F 632
Case
[2023] FedCFamC1F 632
Decision Date

CaseChat Overview and Summary

The case of Pennington & Mosley involved a dispute between a husband and wife regarding the nullity of their marriage that was solemnised in Australia in 2016. The wife had filed an application for a decree of nullity on 12 December 2022, and subsequently, the husband also confirmed his intention to seek a decree of nullity on 9 January 2023. Both parties attended before the court and provided sworn evidence. The core issue before the court was whether the marriage conducted in Australia in 2016 was valid or if it should be declared null and void due to the existence of a prior marriage ceremony that had taken place in the United States in 2015.

The court had to determine if the marriage celebrant had followed the necessary procedures in accordance with Australian law and whether the parties had truthfully and accurately completed the required forms. The wife testified that she had signed forms similar to the Notice of Intended Marriage and the Declaration of No Legal Impediment to Marriage, and had ticked the box indicating that she had never been validly married. She believed that the husband had done the same. Additionally, neither party disclosed the existence of the prior ceremony to the marriage celebrant, and it was unclear whether the celebrant had inquired about previous marriages. The court had to consider whether these omissions constituted significant errors that rendered the marriage null and void.

In delivering the judgment, the court found that the wife had signed the relevant forms, indicating that she had never been validly married. The court also accepted that neither party disclosed the prior ceremony to the marriage celebrant, and there was no evidence that the celebrant had asked about previous marriages. Given these circumstances, the court concluded that the marriage was invalid because it was entered into without the proper disclosures and formalities required by law. Consequently, the court granted the wife’s application and declared the marriage null and void.

The final orders of the court were to declare the marriage between the husband and wife, solemnised in 2016, to be null and void from the outset. This decision was made based on the evidence presented and the legal requirements for a valid marriage under Australian law.

Orders

Orders of the court

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Background

Background to the litigation

In the matter, I provide the following ex tempore reasons for judgment. I have made a decree of nullity of the marriage between the applicant wife (“the wife”) and the respondent husband (“the husband”) that was made in 2016 and I provide the following reasons for having done so.BACKGROUND The material before the Court consisted of the following documents. There was the application for nullity filed on 12 December 2022 by the wife and her affidavit of support filed on 12 December 2022. I made orders on 16 March 2023 requesting further evidence, and as a result of that order, the wife filed a further affidavit on 3 April 2023. On 9 January 2023, the husband filed a response in which he confirmed that he too was seeking a decree of nullity, and then on 8 March 2023, the husband filed a submitting notice submitting to the orders sought and not wishing to be heard on the question of costs. I note that, out of abundant caution, the wife, on 3 April 2023, filed an affidavit of service and on 14 March 2023 the husband filed an acknowledgment of service. Both the wife and the husband attended before me by way of Microsoft Teams. They both represented themselves and gave sworn evidence. I find that in this case, the husband and the wife married at a wedding at Suburb C in Sydney in 2016. However, at that time, they had entered into a prior wedding in the United States in 2015. I mark as the Court’s Exhibit “C1” the Australian marriage certificate and the Court’s Exhibit “C2” the certificate of marriage registration, issued by the City B, Office of the City Clerk, relating to a ceremony of marriage that was performed in 2015. The evidence before the Court is that the relationship between the husband and the wife has broken down. They both wish to dissolve the first marriage and appreciate the need to do so. However, they need a decree of nullity in relation to the second, that is, the Australian marriage. Also in evidence will be the following two documents, which were identified by the wife in evidence this morning. The first is a blank pro-forma form called Notice of Intended Marriage, which will become the Court’s Exhibit “C3”, and also another document, Declaration of No Legal Impediment to Marriage, that I will make the Court’s Exhibit “C4”. I note that these two forms are standard forms that are used in order to comply with the formal requirements for a marriage in Australia. The Court observes that the marriage took place in 2016 and it is possible that the forms that were provided to the wife when the Court asked some questions, in fact, were forms that were promulgated after that date. The Court is satisfied that there is no significant difference insofar as the question that was put to the wife and answered by her. The wife agreed that she had signed forms to the effect of the documents in question and she believes that the husband had likewise done so. When asked about, for example, the questions relating to conjugal status that appear on both forms, but specifically in relation to the Notice of Intended Marriage, she recalls that she ticked the box “never validly married” and believed that the husband had done so as well. She explained that when she ticked that box, she was conscious of the fact that there had been what she described as a civil union in another country, but she did not regard that as a marriage and did not think that that is the question that was asked of her at item 7 of the Notice of Intended Marriage. When asked whether she, or to her knowledge, the husband, had told the marriage celebrant about the existence of this prior ceremony, she explained that she had not, and to the best of her knowledge, the husband had not. When asked whether the marriage celebrant had asked whether there had been a previous marriage or ceremony, she explained that she did not recall if she was asked.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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