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 notation that on 5 June 2018 the respondent was granted leave to attend by telephone. It was ordered:
(1)That the respondent be granted a further 28 days to file and serve responding documents;
(2)That the proceedings be adjourned for hearing before me on Wednesday, 26 September 2018 at 3.30 pm and that consideration be given for the matter to proceed as an undefended matter.
It was not intended by the Registrar that the leave for the respondent to appear by telephone was an ongoing but rather that it was a notation that he had been given leave and he had not taken advantage of it. In any event, the respondent has not filed any responding documents. Assistance is to be obtained from a consideration of two affidavits filed by the applicant’s solicitor, the first being of 13 April 2018 and the second being of 6 June 2018.
I do not propose to go through the detailed matters set out in the first affidavit but it is sufficient that significant effort was expended by the applicant to effect service via international service regulations but ultimately it appears that the respondent both by the collusion of work colleagues and also by his transient lifestyle meant that it has been difficult for service to be effected and the implication clearly and, indeed, it appears to be the implication that had the most impact upon the registrar, was that the respondent was likely to be avoiding service.
On 6 June 2018 an affidavit of Ms D was filed and confirms that service was effected on 17 May 2018 at 1.25 pm by showing the sealed copy of the documents and handing the respondent a true copy thereof to Ms E, the person in charge of the business where the respondent worked. The following appears in [3]:
At the time of service I asked the said person named in paragraph 2 above “Are you authorised to accept legal documents for employee [Mr Sterling]?” She replied “Yes.”
Efforts were then made to send a copy of the documents to the respondent at an address in Country C that was made known to the process server. I am satisfied that the Registrar’s order has been complied with, that substituted service has been effected and the evidence presented by a combination of the two affidavits would also suggest that whilst substituted service has taken place on the balance of probabilities that the respondent has become aware of the proceedings. I consider that he has been appropriately served.
The background to the matter is relatively straightforward. The respondent was born in 1986; the applicant was born in 1987. She is a health professional. His employment is uncertain but it appears to be generally within the hospitality. The parties met in October 2013 on a cruise ship. At the end of the cruise they kept in contact. A relationship developed between November 2013 and July 2014.
The parties decided that they would see whether there was some future to the relationship and the respondent came to Adelaide in July 2014. Following a proposal, and thereafter an engagement, in early 2014 a marriage ceremony took place at Suburb B in 2015. The court has been provided with a certificate of marriage which I accept indicates that the marriage was solemnised in the State of South Australia in 2015. There were witnesses to the ceremony and the certificate of marriage bears both date of registration being 2015.
At a subsequent time and following certain inquiries made by the applicant following separation in September 2016 it came to her attention that at the time she and the respondent were married in Adelaide he was married to Ms F, having undergone a ceremony of marriage with Ms F in the US in 2012. Annexed to the applicant’s affidavit is a copy of a Certificate of Marriage. I am asked by counsel to find that the certificate establishes that Mr Sterling was married to Ms F at all relevant times but in particular in 2015.
Counsel has also tendered a copy of a judgment of dissolution of marriage from the Circuit Court, 4^th Judicial Circuit, in and for G State, US. This document purports to evidence a dissolution of the marriage between Mr Sterling and Ms F on 28 March 2017. Whilst nothing turns on that document, I am prepared to accept that it is a proper copy of the final judgment of dissolution of marriage and the relevant order made and as such it lends support and corroboration for a finding that the respondent and Ms F were the subject of a valid marriage ceremony in 2012.
An overseas marriage will be recognised in Australia as valid if it was valid under local law at the time it was solemnised (see ss 88C(1)(a) and 88D(1) of the Marriage Act 1961 (Cth) (“the Marriage Act”)). Local law is defined in s 88B(1) to mean the law in force in the foreign country in which the marriage took place. Proof of the validity of an overseas marriage is facilitated by s 88G(1) of the Marriage Act. This provides that a marriage certificate issued by a competent authority in a foreign country is, prima facie, evidence of the occurrence of the marriage and the validity of the marriage. The term “competent authority” is defined in s 88G(3) of the Marriage Act as being either an authority prescribed by the regulations in relation to a foreign country or part of a foreign country, or any other authority competent under the law of that foreign country to issue the original certificate or a certified copy thereof. Section 102 of the Family Law Act 1975 (Cth) (“the Act) provides that:
The court may receive as evidence a document purporting to be either the original or a certified copy of a certificate of marriage alleged to have taken place in Australia or elsewhere.
Whilst I accept that the document as annexed to the affidavit is not the original of the marriage certificate entered into either between the parties or, indeed, for that matter, between the respondent and Ms F, nonetheless, I am satisfied by the juxtaposition of that document and the Judgment of Dissolution of Marriage that it can be accepted as a valid marriage certificate indicating that a marriage ceremony was undertaken.
Under s 51 of the Act, an application for a decree of nullity of marriage must be based on the ground that the marriage is void. A void marriage is of no effect in law. It is not a marriage at all whether or not a decree declaring it void has been pronounced. The decree is simply a declaration which confirms the fact that there was never a valid marriage. The grounds for a decree of nullity of marriage are set out in ss 23 and 23B of the Marriage Act. The grounds under which a marriage is void under s 23B(1) are as follows:
(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 s 48, the marriage is not a valid marriage –
that is, the marriage is not a valid marriage under the law of the place where the marriage ceremony took place because of the failure to comply with the law of that place about the form of the marriage ceremony, or –
(d)The consent of the marriage of either of the parties is not real consent.
It is clear that, at the time the parties participated in a marriage ceremony in 2015, the respondent was lawfully married to another person, namely Ms F.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 26 September 2018.

Associate:

Date: 28 September 2018