Radtke and Pagano

[2016] FamCA 784

FAMILY COURT OF AUSTRALIA

RADTKE & PAGANO [2016] FamCA 784

FAMILY LAW – NULLITY – Where the wife alleges her consent was not proper because of duress – where discussion of general principles - Application for declaration of nullity granted.

Family Law Act 1975 (Cth) s 51
Marriage Act 1961 (Cth) s 23B

Hallas and Kefalos [2012] FamCA 860
Hirani v Hirani (1983) 4 FLR (Eng) 232
Kokl (1981) FLC 91-078
Re S(1980) FLC 90-820
Teves III and Campomayor [1994] FamCA 57; (1995) FLC 92-578

APPLICANT: Ms Radtke

RESPONDENT: Mr Pagano

FILE NUMBER: PAC 2339 of 2016

DATE DELIVERED: 16 September 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 13 September 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In Person

Amended pursuant to rule 17.02 of the Family Law Rules 2004

Orders

1. The marriage between the applicant Ms Radtke and the respondent Mr Pagano conducted at Suburb D, New South Wales on 23 August 2013 be declared void and a nullity.

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 Radtke & Pagano 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 PARRAMATTA

FILE NUMBER: PAC 2339  of 2016

Ms Radtke

Applicant

And

Mr Pagano

Respondent

REASONS FOR JUDGMENT

1. The application of the wife before the Court for a declaration of nullity of marriage is made pursuant to section 51 of the Family Law Act 1975 (Cth), and that provision provides that:

   An application under this Act for a degree of nullity of marriage shall be based on the ground that the marriage is void.

2. The grounds on which a marriage is void is set out in section 23B of the Marriage Act 1961 (Cth), which provides, relevantly, as follows:

   (1) A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:

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

   (b) the parties are within a prohibited relationship;

   (c) by reason of section 48 the marriage is not a valid marriage;

   (d) the consent of either of the parties is not a real consent because:

   (i) it was obtained by duress or fraud;

   (ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or

   (iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony; or

   (e) either…