Tian & Hai - [2022] FedCFamC1F 354

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tian & Hai [2022] FedCFamC1F 354

File number(s): MLC 8659 of 2021

Judgment of: JOHNS J

Date of judgment: 11 May 2022

Catchwords:
FAMILY LAW – NULLITY – where a declaration of nullity is sought – where the parties were married in China – where the parties partook in a second marriage ceremony in Australia – where consideration was given to the circumstances in which a marriage is void – where it is established that the Australian marriage is void

FAMILY LAW – DIVORCE – where a divorce order is sought in respect of the parties’ first marriage in China – where the parties have been separated for over 3 years – where the parties have lived separately since 2019 – where the husband resides in China and the wife resides in Australia – where the wife is an Australian citizen and ordinarily resident in Australia – where the wife has primary care and financial responsibility for the parties’ only child – where proper arrangements have been made for the care of the child

Legislation:
Family Law Act 1975 (Cth) s 51

Marriage Act 1961 (Cth) ss 22B, 23, 23B, 39, 39A, 48, 55A, 113

Cases cited: Zau & Huang [2015] FamCA 873

Division: Division 1 First Instance

Number of paragraphs: 26

Date of hearing: 11 May 2022

Place: Melbourne

Counsel for the Applicant: Litigant in person

Counsel for the Respondent: Ms Zhang

Solicitor for the Respondent: AHL Legal

ORDERS

MLC 8659 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS TIAN

Applicant

AND:
MR HAI

Respondent

ORDER MADE BY:

JOHNS J

DATE OF ORDER:

11 MAY 2022

THE COURT ORDERS THAT:
1.That the marriage entered into between the applicant, MS TIAN and the respondent MR HAI at Suburb B in 2017 is declared null and void.
2.That a divorce order be made in respect of the marriage entered into in China in 2016, such divorce order to take effect 30 days from the date of this order.
3.That all extant applications be otherwise dismissed.

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 Tian & Hai has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT

By Amended Application filed 11 March 2022, the applicant…

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.

Continue reading Tian & Hai

Details

AGLC: Tian & Hai [2022] FedCFamC1F 354
Case: [2022] FedCFamC1F 354
Decision Date: 11 May 2022

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Ms Tian applied for a declaration of nullity of her marriage to Mr Hai, who had participated in a second marriage ceremony in Australia. The court was also asked to grant a divorce order in respect of the parties’ first marriage in China, which had been conducted in 2016. The parties had been separated for over three years, with the husband residing in China and the wife in Australia. The wife was an Australian citizen, and ordinarily resident in Australia. The wife had primary care and financial responsibility for their only child, and proper arrangements had been made for the care of the child. The court was required to determine whether the Australian marriage was void and whether the divorce order should be granted in respect of the first marriage. The court also considered the welfare of the child in reaching its decision.

The court found that the Australian marriage was void as it was established that the parties were already married at the time of the second ceremony. The court considered the circumstances in which a marriage is void and concluded that the Australian marriage did not meet the requirements for a valid marriage. The court also found that the divorce order should be granted in respect of the first marriage as the parties had been separated for over three years, and the wife was an Australian citizen, and ordinarily resident in Australia. The court considered the welfare of the child and found that proper arrangements had been made for the care of the child.

The court declared the marriage entered into between the applicant and the respondent in Australia in 2017 to be null and void. The court also granted a divorce order in respect of the marriage entered into in China in 2016, with the divorce order to take effect 30 days from the date of the order. All other applications were dismissed. The form of the order is subject to the entry in the Court’s records, and the copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors, or to record a variation to the order.

Orders

Orders of the court

MLC 8659 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS TIAN

Applicant

AND:

MR HAI

Respondent

ORDER MADE BY:

JOHNS J

DATE OF ORDER:

11 MAY 2022

THE COURT ORDERS THAT:

1. That the marriage entered into between the applicant, MS TIAN and the respondent MR HAI at Suburb B in 2017 is declared null and void.

2. That a divorce order be made in respect of the marriage entered into in China in 2016, such divorce order to take effect 30 days from the date of this order.

3. That all extant applications be otherwise dismissed.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	MLC 8659 of 2021
Judgment of:	JOHNS J
Date of judgment:	11 May 2022
Catchwords:	FAMILY LAW – NULLITY – where a declaration of nullity is sought – where the parties were married in China – where the parties partook in a second marriage ceremony in Australia – where consideration was given to the circumstances in which a marriage is void – where it is established that the Australian marriage is void FAMILY LAW – DIVORCE – where a divorce order is sought in respect of the parties’ first marriage in China – where the parties have been separated for over 3 years – where the parties have lived separately since 2019 – where the husband resides in China and the wife resides in Australia – where the wife is an Australian citizen and ordinarily resident in Australia – where the wife has primary care and financial responsibility for the parties’ only child – where proper arrangements have been made for the care of the child
Legislation:	Family Law Act 1975 (Cth) s 51 Marriage Act 1961 (Cth) ss 22B, 23, 23B, 39, 39A, 48, 55A, 113
Cases cited:	Zau & Huang [2015] FamCA 873
Division:	Division 1 First Instance
Number of paragraphs:	26
Date of hearing:	11 May 2022
Place:	Melbourne
Counsel for the Applicant:	Litigant in person
Counsel for the Respondent:	Ms Zhang
Solicitor for the Respondent:	AHL Legal

MLC 8659 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS TIAN Applicant
AND:	MR HAI Respondent

ORDER MADE BY:	JOHNS J
DATE OF ORDER:	11 MAY 2022