Siva & Dashta

[2015] FamCA 431

FAMILY COURT OF AUSTRALIA

SIVA & DASHTA [2015] FamCA 431

FAMILY LAW – MARRIAGE – declaration as to invalidity of marriage – Where the parties married in Fiji and Australia – Where the wife was under the age of 18 at the time of the initial marriage in Fiji – Where the wife has failed to appear before the Court – Where appropriate to proceed on an undefended basis – Consideration of s 88D(2)(b) of the Marriage Act 1961 (Cth) – Marriage between the parties in Fiji declared invalid.

Marriage Act 1961 (Cth) ss 11, 88D

APPLICANT: Mr Siva

RESPONDENT: Ms Dashta

FILE NUMBER: PAC 6091 of 2014

DATE DELIVERED: 25 May 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 25 May 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Cruz Montalvo on a duty basis

Orders

1. The marriage solemnised between the parties on … 2002 in B Town, Fiji be declared invalid pursuant to the provisions of s 88D(2)(b) of the Marriage Act 1961 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Siva & Dashta has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 6091 of 2014

Mr Siva

Applicant

And

Ms Dashta

Respondent

REASONS FOR JUDGMENT

1. The application before the Court is an application initiating proceedings filed by the applicant husband on 6 March 2015. 

2. He seeks various orders in his application initiating, being in summary as follows: 

   a)That the marriage between he and the wife solemnised in 2002 in B Town, Fiji be declared valid;

   b)That the marriage between himself and the wife solemnised in 2002 in Suburb D, New South Wales be declared null and void; or, in the alternative

   c)That the marriage solemnised in 2002 in B Town, Fiji be declared null and void;

   d)That the marriage between himself and the wife solemnised in 2002 at Suburb D, New South Wales be declared valid. 

Background

1. The affidavits relied upon by the applicant husband are his affidavits filed on 6 March 2015 and 14 April 2015.

2. The husband was born in City C, Fiji in 1965 and at all relevant times he was an Australian citizen.

3. The respondent wife was born in 1984 and is 30 years of age. The wife came to Australia in December 2002 and she is now an Australian citizen. 

4. There are four children of the parties’ relationship, although the children have been in the care of the Department of Family and Community Services since March 2010.

5. The husband and the wife met in Fiji in about 2000 when he was on holidays visiting family in Fiji. The parties subsequently formed a relationship and married in Fiji in 2002.

6. The husband returned to Australia following the marriage in Fiji and the wife followed him to Australia. The Fijian marriage was not recognised by the Australian embassy, and the parties underwent a further marriage in Australia in accordance with the provisions of the Marriage Act 1961 (Cth) (“the Marriage Act”) in 2002.

7. The parties separated on 2 December 2012 and lived separately under the same roof until 4 March 2014, when the wife moved out of the matrimonial home.

The Fiji marriage

1. The circumstances of the Fijian marriage are that at the time of marriage the wife was only 17 years of age, having been born in 1984. 

2. As a consequence, and as the husband at the time of marriage was domiciled in Australia, the provisions in relation to the recognition of overseas marriages in s 88D of the Marriage Act applies.

3. Section 88D(1) provides that:

   Subject to this section, a marriage to which this Part applies shall be recognised in Australia as valid.

4. Subsection (2) relevantly provides:

   A marriage to which this Part applies shall not be recognised as valid in accordance with subsection (1) if: 

   (a)…

   (b) where one of the parties was, at the time of the marriage, domiciled in Australia- either of the parties was not of marriageable age within the meaning of Part II.

5. “Marriageable age” for the purpose of the Marriage Act is set out in s 11 of the Marriage Act, and is 18 years of age at the time of marriage.

6. The provisions of s 88D render the marriage in Fiji at all times invalid.

Undefended proceedings

1. The application that was brought before the Court came before the Registrar on 14 April 2015 and was adjourned for the purposes of being listed as an undefended matter. 

2. The husband’s affidavit of 14 April sets out his letter to the wife dated 14 April 2015 informing her that his application was listed before the Court today, 25 May 2015 at 11.30 am. 

3. The wife’s name has been called outside the Court in relation to this matter, and there is no appearance by her, or on her behalf. 

4. Under the circumstances, the Court is satisfied it is appropriate for the husband’s application to proceed on an undefended basis. 

Discussion

1. Clearly in terms of the evidence before the Court, there is no doubt that, for the purposes of the Marriage Act, the subject initial marriage in Fiji is invalid.

2. Accordingly, the Court declares that the marriage solemnised between the parties in 2002 at B Town in Fiji be declared invalid pursuant to the provisions of s 88D(2)(b) of the Marriage Act.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 25 May 2015.

Associate:  

Date:  25 May 2015