TAO & STERLING - [2018] FamCA 774

FAMILY COURT OF AUSTRALIA

TAO & STERLING

[2018] FamCA 774

FAMILY LAW – NULLITY – Application for a declaration of Nullity – Where one party was married in a foreign country prior to entering into the marriage with the other party.

Family Law Act 1975 (Cth) ss 51, 102
Marriage Act 1961 (Cth) ss 23, 23B, 23B(1), 48, 88C(1)(a), 88D(1), 88B(1), 88G(1), 88G(3)

APPLICANT:

Ms Tao

RESPONDENT:

Mr Sterling

FILE NUMBER:

ADC

527

2017

DATE DELIVERED:

26 September 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

26 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Pascale

SOLICITOR FOR THE APPLICANT:

Pascale Legal Barristers & Solicitors

COUNSEL FOR THE RESPONDENT:

No appearance

SOLICITOR FOR THE RESPONDENT:

IT IS ORDERED:

That a Declaration be made that the marriage between Mr Sterling and Ms Tao solemnised at Suburb B, South Australia, on … 2015 is a Nullity.

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 Tao & Sterling 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 ADELAIDE

FILE NUMBER: ADC 527 of 2017

Ms Tao

Applicant

And

Mr Sterling

Respondent

EX TEMPORE REASONS FOR JUDGMENT

By Initiating Application filed 13 February 2017 Ms Tao (“the applicant”) seeks a decree as to the nullity of marriage between her and Mr Sterling (“the respondent”). The respondent does not appear at the hearing. It is necessary that there be some consideration given to the circumstances by which the proceedings have come to the attention of the respondent. Of importance is an order made by Registrar Paxton on 17 April 2018 that ordered:
(1)That personal service on the respondent is hereby dispensed with.
(2)That substituted service be effected on the respondent by forwarding a sealed copy of the Initiating Application and Affidavit both filed 13 February 2017 together with a letter advising the respondent of the adjourned date to the respondent’s employer, being an employer in Country C.
The applicant was also ordered to file and serve an affidavit of service attaching a copy of the letter that had been forwarded to the respondent. The matter then came back before Registrar Paxton on 5 June 2018 and the Registrar adjourned the matter for a directions hearing and ordered that the respondent file and serve answering documents within 28 days. The effect of that order was that the registrar was satisfied that her order for substituted service had been complied with.
The matter was further renewed on 31 July 2018. The Registrar’s order has a…

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

AGLC: TAO & STERLING [2018] FamCA 774
Case: [2018] FamCA 774
Decision Date: 26 September 2018

CaseChat Overview and Summary

In the matter of TAO & STERLING, Berman J of the Supreme Court of Victoria considered a dispute concerning the interpretation and enforceability of a deed of settlement. The applicants, TAO and STERLING, sought to enforce the terms of this deed against the respondent, who had allegedly breached its provisions. The core of the disagreement lay in whether the respondent had fulfilled their obligations as stipulated in the settlement agreement.

The central legal issues before the Court were: firstly, whether the deed of settlement was a valid and binding contract, and secondly, if so, whether the respondent's actions constituted a breach of its terms. The Court was required to assess the evidence presented by both parties to determine the respondent's compliance with the agreed-upon obligations.

Berman J's reasoning focused on the established principles of contract law, particularly concerning the interpretation of settlement deeds. The Court examined the language of the deed itself, considering the ordinary meaning of the words used and the surrounding circumstances at the time of its execution. The judge applied the objective approach to contractual interpretation, seeking to ascertain the parties' common intention. The Court found that the respondent had indeed failed to meet the obligations outlined in the deed, thereby constituting a breach. The Court ordered that the respondent was in breach of the deed and that the applicants were entitled to enforce the terms of the settlement.

Orders