Rick and King
[2011] FamCAFC 220
•23 November 2011
FAMILY COURT OF AUSTRALIA
| RICK & KING | [2011] FamCAFC 220 |
| FAMILY LAW – APPEAL – MARRIAGE – NULLITY – Appeal against orders dismissing the husband’s application for a decree of nullity – Appeal dismissed |
| Family Law Act1975 (Cth) s 51, s 94(2A) Marriage Act1961 (Cth) s 23B |
| APPELLANT: | Mr Rick |
| RESPONDENT: | Ms King |
| FILE NUMBER: | PTW | 2411 | of | 2010 |
| APPEAL NUMBER: | WA | 2 | of | 2011 |
| DATE DELIVERED: | 23 November 2011 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | May, Thackray and Crisford JJ |
| HEARING DATE: | 15 November 2011 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 20 December 2010 |
| LOWER COURT MNC: | [2010] FCWA 130 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| SOLICITOR FOR THE APPELLANT: | Self represented |
| SOLICITOR FOR THE RESPONDENT: | No appearance |
Orders
(1)The appeal be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Rick & King is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 2 of 2011
File Number: PTW 2411 of 2010
| Mr Rick |
Appellant
And
| Ms King |
Respondent
REASONS FOR JUDGMENT
By an Amended Notice of Appeal filed 11 January 2011 Mr Rick (“the husband”) challenges the order made by the Honourable Justice Crooks on 20 December 2010 dismissing his application for a decree of nullity relating to his marriage to Ms King (“the wife”).
Section 94(2A) of the Family Law Act1975 (Cth) (“the Family Law Act”) permits reasons to be given in “short form” when an appeal is to be dismissed, provided the appeal does not raise any question of general principle. Those conditions are satisfied here.
Background
At the time of judgment the husband was 58 and the wife was 31 years of age.
In 2007 the husband and wife took part in a marriage ceremony in Perth.
On 6 May 2010 the wife filed an application for divorce.
On 8 June 2010 the husband filed a response to the wife’s divorce application (“the response”) and also filed a separate application in which he sought an order “that the Court dismiss the divorce application and grant the application for nullity, on the grounds of fraud”.
At paragraph 6 of the response the husband said:
The Application for Divorce should be dismissed and the Application for Annulment should be granted on the grounds the Respondent is a diagnosed AIDS patient and has been since 14th October 2006. (Married [in 2007] at Perth Registry Office.) Had I been made aware of the medical status of the Respondent, the marriage would never have taken place.
Other than corresponding with the Court to explain her absence, the wife took no part in the proceedings before Crooks J.
Crooks J dismissed the application for nullity on 20 December 2010. It is from this order that the husband appeals.
The reasons for decision
Crooks J, having set out the background facts, referred to s 51 of the Family Law Act and s 23B of the Marriage Act1961 (Cth) (“the Marriage Act”) which are the relevant statutory provisions. The provision of particular relevance is s 23B(1)(d)(i) of the Marriage Act which provides that a marriage is void in the event “the consent of either of the parties is not a real consent because…it was obtained by…fraud”.
His Honour then considered relevant authorities which explain the meaning of “fraud” in the context of s 23B(1) of the Marriage Act, namely Osman and Mourrali (1990) FLC 92-111, Hosking and Hosking (1995) FLC 92-579 and Zacharia & Paradisio [2008] FamCA 688. It is unnecessary to refer to these authorities, other than to note that, when citing from one of them, Crooks J referred to the judgment in Moss v Moss (1897) P. 263 at 268 where it was said:
…when in English Law fraud is spoken of as a ground for voiding a marriage, this does not include such fraud as induces a consent, but is limited to such fraud as procures the appearance without the reality of consent.
Having reviewed the authorities Crooks J found:
22. There is no question in this case that the husband married the women he thought he was marrying and the parties went through what they knew to be a valid marriage ceremony in Perth. The fact that the wife may have lied to and deceived the husband by not disclosing her medical condition in order to benefit financially from him, does not establish the necessary ground for nullity of his marriage.
Discussion
The husband, who appeared in person, acknowledged that he was unable to refer us to any statutory provision or decided case that would support his proposition that the marriage was a nullity because of the failure of the wife to inform him that she had AIDS at the time of the marriage ceremony.
Putting to one side the assertion that the wife’s conduct rendered her liable for criminal prosecution, the husband’s primary contention was that the law applied by Crooks J was out of date and that no court had ever previously been asked to consider an application for a marriage to be annulled on the basis of one of the parties having failed to disclose they suffered from a communicable disease which could lead to the death of the other party.
Whilst we can readily accept that the husband would not, as he asserted, have proceeded with the marriage had he known the medical status of the wife, we consider that Crooks J succinctly, clearly and accurately applied the long established legal principles relating to nullity of marriage in determining that the failure of the wife to inform the husband of her true medical status did not vitiate the husband’s consent to the marriage.
It transpired at the conclusion of the oral argument that the husband’s purpose in seeking to obtain a decree of nullity, rather than having the marriage dissolved, was because he considered the wife would not be able to pursue him for a property settlement in the event the marriage was found to be void. The husband is mistaken in this view (see s 4(2) of the Family Law Act).
The one specific matter which we should address is the husband’s concern that an affidavit which he understood had been before Crooks J at the hearing, was in fact not on the court file, and had therefore not been taken into account. A copy of that affidavit was provided to us with the appeal papers. Perusal of it indicates that it contains no additional information that would have in any way advanced the husband’s case.
For these reasons the husband’s appeal will be dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Thackray & Crisford JJ) delivered on 23 November 2011.
Associate:
Date: 23 November 2011
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