SARKAR & SARKAR - [2020] FamCA 305

FAMILY COURT OF AUSTRALIA

SARKAR & SARKAR

[2020] FamCA 305

FAMILY LAW – NULLITY – Where the wife alleges her consent was not proper because of duress or fraud – Where discussion of applicable principles – Where evidence insufficient to establish ground of nullity – Where application dismissed

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

Hallas & Kefalos [2012] FamCA 860
Kokl (1981) FLC 91-078
Re S (1980) FLC 90-820
Teves III and Campomayor [1994] FamCA 57; (1995) FLC 92-578

APPLICANT:

Ms Sarkar

RESPONDENT:

Mr Sarkar

FILE NUMBER:

PAC

3372

2019

DATE DELIVERED:

30 April 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

9 April 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Zoutendijk of Bell Lawyers

RESPONDENT – SELF-REPRESENTED LITIGANT:

No appearance

Orders

The wife’s Application for Declaration of Nullity filed on 18 July 2019 be dismissed.

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 Sarkar & Sarkar 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 3372 of 2019

Ms Sarkar

Applicant

And

Mr Sarkar

Respondent

REASONS FOR JUDGMENT

This is an application filed by the wife on 18 July 2019 seeking a declaration of nullity in relation to her marriage to the respondent husband. The marriage was solemnised by a civil celebrant in May 2019 in Victoria, Australia.
By way of background, the wife was born in 1993 and is now 27 years of age and the husband, born in 1989, is now 30.
On 4 December 2019 an order for substituted service of the application was made facilitating the wife effecting service by forwarding a sealed copy of the application to Suburb B in Victoria, being an address obtained by the wife’s solicitor from the husband and one at which the parties lived with members of the husband’s family prior to separation. Service was effected in accordance with orders on 10 December 2020.
The husband filed no documents in response to the wife’s application and it was noted at a hearing before a Registrar on 30 January 2019 that the husband previously advised that he was leaving Australia on 8 January 2020 which the wife’s solicitor suspected to be the result of his Visa expiring.
In these circumstances, the Court was satisfied that it was appropriate for the matter to proceed on an undefended basis.

The Wife’s evidence

The wife relies upon her affidavit dated 18 July 2019 filed in support of her application.

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: [2020] FamCA 305
Decision Date: 30 April 2020

CaseChat Overview and Summary

In the matter of *Sarkar & Sarkar*, Foster J of the Federal Circuit and Family Court of Australia was required to determine an application by the wife for a declaration of nullity of the marriage. The husband was the respondent to this application.

The central legal issue before the court was whether the marriage between the parties was valid at its inception, or if it was void ab initio. This required an examination of the circumstances surrounding the marriage ceremony and the legal requirements for a valid marriage under Australian law.

Foster J dismissed the wife's application. While the specific reasoning is not detailed in the provided text, the outcome indicates that the court found the marriage to be valid and not void. The wife's application for a declaration of nullity was therefore unsuccessful.

Orders

Orders of the court

The wife’s Application for Declaration of Nullity filed on 18 July 2019 be dismissed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.