PINHEIRO & OUTTERRIDGE

[2019] FamCA 323

FAMILY COURT OF AUSTRALIA
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PINHEIRO & OUTTERRIDGE [2019] FamCA 323

FAMILY LAW – NULLITY – Undefended hearing – Court satisfied that the respondent had been served with the application overseas – Where the applicant seeks a decree of nullity – Where one of the parties was lawfully married to another person at the time of the marriage – Court satisfied that the grounds of nullity were met.

Marriage Act 1961 (Cth) s 23B(1)

APPLICANT: Ms Pinheiro

RESPONDENT: Mr Outteridge

FILE NUMBER: SYC 6664 of 2018

DATE DELIVERED: 2 April 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 2 April 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Livermore of Marrickville Legal Centre

SOLICITOR FOR THE RESPONDENT: No appearance for or on behalf of the Respondent

Orders

1. The application of Ms Pinheiro for nullity of marriage on the ground that such marriage is void was heard this day.

2. The Court notes that it is satisfied that the application and material in support have been served on the respondent in the United States of America.

3. Leave is granted to the applicant for her application to be dealt with on the basis of an undefended proceedings.

4. The Court notes that it is satisfied that the applicant was ordinarily resident in Australia on the relevant date.

5. The Court notes it is satisfied that the ground has been proved.

6. The Court decrees that the marriage in fact solemnised in 2015 at Sydney between the applicant and the respondent 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 Pinheiro & Outterridge 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 SYDNEY

FILE NUMBER: SYC 6664 of 2018

Ms Pinheiro

Applicant

And

Mr Outteridge

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application by Ms Pinheiro (“the applicant”) for a decree of nullity of marriage. Ms Pinheiro’s application is on the ground that the marriage between her and Mr Outteridge (“the respondent”) solemnised at Sydney in 2015 is void, because, at that time, that is, in 2015, the respondent was already lawfully married. The ground upon which the applicant relies is set out in s 23B(1) of the Marriage Act 1961, which provides as follows:

   (1)      A marriage … is void where:

   (a)either of the parties is, at the time of the marriage, lawfully married to some other person;

2. I am satisfied that the respondent has been personally served with the application and the material in support, that having been achieved by a Mr C in Town D, State E, in the United States of America in 2019.  I am also satisfied that there is no response to the application.  In all the circumstances, I give leave to the applicant for her application to be dealt with on the basis of an undefended proceedings.

Background

1. The applicant was born in Country A in 1966. 

2. The respondent was born in the United States of America in 1967. 

3. The applicant commenced living in Australia in 1971.  She became an Australian citizen in 1996.  For the purposes of these reasons for judgment, I will accept that although I have not sighted her citizenship certificate.  I am satisfied that the applicant was ordinarily resident in Australia at the time of lodging the application.

4. I note that the parties met in 2008 on the internet and, subsequently, were in regular communication. 

5. The applicant visited the respondent in the US in 2013 and the respondent informed her that he was divorced.

6. In 2014, the respondent came to Australia and he commenced living with the applicant in Australia. 

7. As indicated above, in April 2015, the parties married in a civil ceremony at the Registry of Births, Deaths and Marriages, Sydney. 

8. The applicant spent time with the respondent in the US in 2014 and again in 2017.  But their relationship deteriorated and they separated upon the applicant departing from the US in 2017.

9. The respondent had informed the applicant that he had been previously married twice.  He indicated that one of his former wives was a Ms F, who was also known by the name Ms J. 

10. Upon the applicant’s return to Australia in 2017, she was able to ascertain Ms F’s email address from an iPad which the respondent had left in Australia.  Through the process of communicating with Ms F, the applicant ascertained that the respondent and Ms F married in 2007 and were divorced in 2015, which is later than the date that the applicant and the respondent married. 

11. I have sighted a copy of the relevant Marriage Certificate issued by the County of Town D, State E, US.  Annexed to the applicant’s affidavit is a copy of a “Final Decree of Divorce” issued by the District Court of the 131^st Judicial District in Town G, State H, US, in 2015.  I accept this document as evidence that the respondent and Ms F were divorced in 2015. 

12. Accordingly, I find that in 2015 when the applicant and respondent married in Sydney the respondent was still lawfully married to Ms F. 

13. In these circumstances, I am satisfied that the marriage between the applicant and the respondent in Sydney in 2015 is void for the reason that the respondent was not able to lawfully enter into the marriage, because he was lawfully married to Ms F at the time.  Accordingly, the ground for a decree of nullity has been established. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 2 April 2019.

Associate: 

Date:  22 May 2019