PEREIRA & GANGUMI - [2019] FamCA 121

FAMILY COURT OF AUSTRALIA

PEREIRA & GANGUMI

[2019] FamCA 121

FAMILY LAW – NULLITY – Pre-existing marriage to another person.

FAMILY LAW – EVIDENCE – Admissibility of the copy of a document – effect of a seal to establish a document produced by a foreign government – public document – drawing of inferences from a document in order to apply the provisions of the Evidence Act 1995 (Cth) – business records – effect of a Certificate of Divorce issued pursuant to s 56 of the Family Law Act 1975 (Cth).

Family Law Act 1975 (Cth) ss 52 and 56

Evidence Act 1995 (Cth) Dictionary Part 1 “public document”, Dictionary Part 2 clause 1 “References to business”, ss 48(1)(b), 69(1)-(2), 150(1), 156(1) and 183
Marriage Act 1961 (Cth) s 23B(1)(a)
Marriage Amendment Act 1985 (Cth) s 13

Australian Securities and Investment Commission v Rich (2005) 216 ALR 320

APPLICANT:

Mr Peirera

RESPONDENT:

Ms Gangumi

FILE NUMBER:

CAC

1057

2018

DATE DELIVERED:

8 March 2019

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

11 September 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Robb & Associates Solicitors

SOLICITOR FOR THE RESPONDENT:

No attendance

Orders

The marriage solemnised at Suburb D New South Wales in March 2013 between the parties is declared to be absolutely null and void.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1057 of 2018

Mr Peirera

Applicant

And

Ms Gangumi

Respondent

REASONS FOR JUDGMENT

The Applicant Husband is Mr Peirera, born in Nepal in 1985. The Respondent Wife is Ms Gangumi, born in Country C in 1984. The Husband and Wife purportedly married in March 2013 in Suburb D, in New South Wales, Australia. The parties have a child together, X, who was born in 2015. The parties together seek a declaration of nullity of the marriage.
The Husband says that at the time of the marriage to the Wife he unknowingly was still in a marriage with Ms Tani.

The Husband’s first marriage

The Husband and Ms Tani’s marriage ceremony was in the E District, Nepal in May 2008. Together they moved to Australia in September 2008 and remained living together until 2010. In 2011 Ms Tani sought a divorce from the Husband.
The Husband understood that Ms Tani attended Nepal in or about 2012 to obtain the divorce and provided him with a Divorce Certificate dated December 2012, issued by the Government…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FamCA 121
Decision Date: 8 March 2019

CaseChat Overview and Summary

In the matter of *Pereira & Gangumi*, Gill J of the Family Court of Australia was required to determine the validity of a marriage solemnised in New South Wales in March 2013 between the parties. The dispute concerned the nullity of this marriage, arising from an allegation that one of the parties had a pre-existing subsisting marriage to another person at the time of the 2013 ceremony.

The central legal issue before the Court was whether the marriage was void ab initio due to a prior subsisting marriage. This required the Court to consider the admissibility and effect of various documents tendered as evidence, including a copy of a document purporting to establish a divorce from a foreign jurisdiction, and a Certificate of Divorce issued under section 56 of the *Family Law Act 1975* (Cth). The Court also had to determine whether it could draw inferences from these documents to apply the provisions of the *Evidence Act 1995* (Cth), particularly in relation to public documents and business records.

Gill J reasoned that the evidence presented, including the foreign divorce document and the Certificate of Divorce, established that one of the parties was already married at the time of the 2013 ceremony. The Court found that the foreign document, bearing a seal, was admissible as a public document and allowed for inferences to be drawn regarding its authenticity and the divorce it purported to evidence. Consequently, the Court concluded that the marriage solemnised in March 2013 was void from its inception.

The Court ordered that the marriage solemnised at Suburb D, New South Wales, in March 2013 between the parties be declared absolutely null and void.

Orders

Orders of the court

The marriage solemnised at Suburb D New South Wales in March 2013 between the parties is declared to be absolutely null and void.

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

Background

Background to the litigation

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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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