Siegert & Fairburn
[2024] FedCFamC1F 274
•23 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Siegert & Fairburn [2024] FedCFamC1F 274
File number: SYC 8368 of 2023 Judgment of: CAMPTON J Date of judgment: 23 April 2024 Catchwords: FAMILY LAW – NULLITY – Where the applicant brings an application for a decree of nullity of marriage – Where the application was not opposed by the respondent – Where the applicant was legally married to another person at the time of marriage with the respondent – Where the marriage was therefore void – Decree of nullity granted. Legislation: Family Law Act 1975 (Cth) ss 44, 51, and 113
Marriage Act 1961 (Cth) s 23B
Cases cited: Axon v Axon (1937) 50 CLR 395; [1937] HCA 80 Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: 23 April 2024 Place: Sydney Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Litigant in person ORDERS
SYC 8368 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SIEGERT
Applicant
AND: MR FAIRBURN
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
23 APRIL 2024
THE COURT ORDERS THAT:
1.By virtue of s 51 of the Family Law Act 1975 (Cth) and s 23B of the Marriage Act 1961 (Cth), the marriage solemnised between the applicant and the respondent on 11 April 2022 at Sydney is declared null and void.
2.A Decree of Nullity is made in respect of the marriage solemnised on 11 April 2022 between the applicant and the respondent.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Siegert & Fairburn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
By way of an Initiating Application filed 6 November 2023 in the Federal Circuit and Family Court of Australia (Division 2), Ms Siegert (“the applicant”) seeks a decree of nullity of her marriage to Mr Fairburn (“the respondent”), entered early 2022. The matter was transferred to Division 1 on 15 January 2024.
The applicant is entitled to institute proceedings seeking a declaration of nullity of the marriage pursuant to s 44(1A) of the Family Law Act 1975 (Cth) (“the Act”). The applicant’s application for a declaration of nullity is based on her own assertion that she was, at the time of marriage to the respondent, lawfully married to Mr B, a resident of Country C.
The respondent appeared in person today. He filed a submitting notice by way of a Response on 15 February 2024 and an affidavit that, in part, corroborates the evidence of the applicant.
BACKGROUND
The applicant was born in 1989 and is currently 34 years old. The respondent was born in 1985 and is currently 38 years old. The applicant is a citizen of Country D. The respondent is a citizen of New Zealand. There are no children of the relationship.
In late 2016 the applicant entered a marriage with Mr B at the Marriage Registry in Country C. The marriage was registered pursuant to the Marriage Ordinance in that forum.
I am advised by the applicant in court today, who appeared in person, communicating with the assistance of a Country D interpreter, that she arrived in Australia on a tourist visa in late 2017. She achieved an extension to that tourist visa. Her application for a student visa was refused. After the covid pandemic she has remained living in this country. Her latest tourist visa expired in early 2024. She is currently on a bridging visa.
The applicant has very limited English skills. The respondent advises at court today that he has limited Country D language skills.
The respondent said today that he and the applicant had been “dating since 2017”.
In mid-2019 Mr B filed a petition for divorce with the District Court in Country C.
In mid-2020 that court made an order for a decree nisi as to the late 2016 marriage.
In early 2022 the applicant and respondent entered a marriage at the Registry of Births, Deaths and Marriages in Sydney, solemnised by an authorised marriage celebrant, pursuant to the Marriage Act 1961 (Cth). The marriage certificate in evidence records the fact of them having been married on that day pursuant to that Act. The marriage certificate records the then conjugal status of the applicant as “never validly married”. The applicant, through the interpreter today, advised that the error in the record of her representation may have been generated by her misunderstanding a question posed and/or by way of her deficient English language skills.
In early 2023 the applicant wrote a letter addressed to the District Court, Country C requesting a sealed copy of the decree of divorce.
In early 2023 the District Court in Country C replied advising:
I am regret to inform you that your case has not been finished, there is no Decree Absolute due to the Petitioner… has not filed the application of decree nisi being absolute since the pronouncement of Decree Nisi…
The applicant advised in court today that she travelled back to Country C in late 2023 and there commenced and achieved the process of an order for decree absolute dissolving her marriage with Mr B.
Both parties at court today said their relationship terminated in December 2023, that the applicant now lives at E Street, Suburb F and the respondent lives at G Street, Suburb H.
THE LAW
Section 51 of the Act provides that an application for a decree of nullity of marriage “shall be based on the ground that the marriage is void”. The grounds for a decree of nullity of marriage are set out in s 23B of the Marriage Act 1961 (Cth), which, relevantly, provides as follows:
23B Grounds on which marriages are void
(1)A marriage to which the 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
(iv) either of the parties is not of marriageable age;
and not otherwise.
(Emphasis added)
Section 113 of the Act states that the court may make such declaration as is justified in matrimonial proceedings.
The applicant bears the onus of proof to establish, based on admissible evidence, the facts and circumstances said to ground the declaration (see Axon v Axon (1937) 50 CLR 395 at [40]). The standard of proof required is on the balance of probabilities.
CONSIDERATION
I am satisfied based on the Country C marriage certificate dated late 2016 that the applicant was married to Mr B on that date.
I am satisfied based on the letter from the Country C District Court dated early 2023, that no decree absolute order dissolving the marriage entered by the applicant had been granted in early 2022.
I am hence satisfied the applicant was married to some other person at the time the applicant participated in the marriage ceremony with the respondent in Sydney in early 2022.
CONCLUSION
In circumstances where the applicant remained married to some other person at the time of the marriage under consideration, the marriage between the applicant and the respondent at Sydney is void, and on that basis a decree of nullity is made.
Accordingly, a declaration will be made that the marriage between the applicant and respondent conducted in early 2022 in Sydney in null and void.
No question of costs arises. Each party shall bear their own costs.
During the hearing, I enquired as to whether either party would object to the referral of the court filed in this matter to the Department of Home Affairs in circumstances where some disquiet exists as to the immigration conduct and status of the applicant. Neither the applicant nor the respondent opposed that course. In all the circumstances, and for the reasons set out, I do not propose to make that referral.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 23 April 2024
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