SUKHAR & AZERI

[2016] FamCA 927

FAMILY COURT OF AUSTRALIA

SUKHAR & AZERI [2016] FamCA 927

FAMILY LAW – NULLITY — granted procedural fairness — application granted

APPLICANT: Ms Sukhar

RESPONDENT: Mr Azeri

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 4314 of 2015

DATE DELIVERED: 6 October 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 6 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Zeno

SOLICITOR FOR THE APPLICANT: Zeno Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: No Appearance

Orders

IT IS ORDERED THAT:

1.To the extent necessary, I dispense with further proof of service on the husband of the wife’s application for nullity filed on 6 July 2016.

2.The application of MS SUKHAR for nullity of marriage was heard this day.

3.The Court was satisfied that MS SUKHAR and MR AZERI were present in Australia when the application was filed.

4.The Court was satisfied that the ground was proved.

5.The Court therefore decreed that the marriage solemnised on … 2009 between MS SUKHAR and MR AZERI be declared to have been absolutely null and void.

IT IS DIRECTED:

6.That the following correspondence be marked Exhibit “W1” and remain on the Court file:-

a)      Email from the wife’s solicitors to the husband’s solicitors date 11 July 2016;

b)      Email from the husband’s solicitors to the wife’s solicitors date 19 July 2016;

c)      Letter sent by email dated 10 August 2016 from the husband’s lawyers to the wife’s lawyers.

IT IS FURTHER ORDERED:

7.Otherwise, the wife’s application be and is hereby dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sukhar & Azeri 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 MELBOURNE

FILE NUMBER: MLC 4314 of 2015

Ms Sukhar

Applicant

And

Mr Azeri

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. The wife’s application initiating proceedings filed on 6 July 2016 comes before me for final determination, and it is an application for a nullity pursuant to s 51 of the Family Law Act 1975 (Cth) (“the Act”). The husband, Muhammad Azeri, was called at the door of the Court but there is no appearance.

2. I am satisfied that the husband has been served with the application by virtue of the following circumstances. The application was filed on 6 July 2016. The lawyer for the wife has handed to me an email transmission from her office to Lewis Holdway Lawyers, who then acted on behalf of the husband in proceedings before the Federal Circuit Court in Melbourne. It includes the affidavit of the wife filed 6 July 2016 and the application initiating proceedings filed 6 July 2016.

3. I have further been handed an email sent on 19 July 2016 by Natalie Fielding of Lewis Holdway Lawyers, in which she advised Ms Zeno, lawyer for the wife, “We have our client’s instructions to accept service of the initiating application and affidavit with respect to the annulment”. That was in response to a query earlier in the day: “Please advise whether your office has accepted service of our client’s initiating application and affidavit with respect to the annulment”.

4. There is a subsequent letter from Lewis Holdway Lawyers to the wife’s lawyers dated 10 August 2016, sent by email, advising that they do not have instructions to act in relation to the wife’s application for a decree of nullity and that they would not appear on 19 August 2016. Whilst they then did not act in the nullity proceedings, they had by that stage, I am satisfied, accepted service. I will therefore dispense with any further service of the documents upon the husband. I am satisfied that he has been accorded procedural fairness.

5. The wife deposes that she and the husband were married in 2009 in Suburb A in the State of Victoria, according to Islamic rights. A photocopy certificate of marriage is annexed to the wife’s affidavit sworn on 22 September 2016. I accept that is the case.

6. The wife relies on s 23B(1)(a) of the Marriage Act 1961 (Cth), which provides that a marriage is void where either of the parties is at the time of the marriage lawfully married to some other person.

7. The wife relies on the evidence of the husband filed in property proceedings in this court to establish that the husband was, in fact, married to some other person on 4 January 2009 — in particular, the husband’s affidavit affirmed on 23 June 2015, which appears as folio 11 on the court file. At paragraph 5 of that affidavit the husband deposes, “I have a wife named Ms B (born 1984) and four children in [the Middle East]”. I note that is expressed in the present tense.

8. At paragraph 8 of the same affidavit the husband deposes, “The applicant is my second wife. It is common for Muslim men to have multiple wives in my culture, and polygamy is a legal practice in Middle Eastern countries”.

9. The husband goes on to depose in paragraph 9 of the same affidavit that he informed the wife about “my wife and children in [the Middle East] as soon as we met; I had one child and my wife was pregnant”.

10. Finally, in paragraph 15 of the affidavit the husband deposes that

    the applicant and I commenced a relationship in [the Middle East] in January 2005. I say further that we were married in a religious ceremony in [the Middle East] on … 2005. Our marriage was not a legal marriage, as the applicant was not a permanent resident …. The applicant came to [the Middle East] three times during the time that I lived there. The first occasion was when we met and the applicant stayed in [the Middle East] for two months. The second occasion was also in 2005; the applicant came to [the Middle East] so we could get married, and she stayed for a duration of nine months. The third occasion was in 2007 when the applicant came to [the Middle East] with her mother for a duration of four months. It was during this visit that the applicant’s mother convinced me to move to Australia and I lodged a visa application. My first wife visited her family in [the Middle East] when the applicant stayed with me in [the Middle East]. The applicant was aware that my wife was in [the Middle East].

11. I am satisfied that the parties to these proceedings underwent a marriage ceremony in 2009 in Suburb A in the State of Victoria. I am satisfied on the evidence of the respondent husband that he was at that time married to another person and that that marriage had not been dissolved. I am therefore satisfied that the basis for a void marriage pursuant to s 23B(1)(a) of the Marriage Act 1961 (Cth) has been made out, and I order accordingly.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 6 October 2016.

Legal Associate:

Date: 3 November 2016