Tian & Hai
[2022] FedCFamC1F 354
•11 May 2022
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 wife, Ms Tian, seeks a decree of nullity of marriage in respect of her marriage to the respondent husband, Mr Hai, which was solemnised in Melbourne in 2017. In addition, she seeks a divorce order in respect of her marriage to the respondent solemnised in China in 2016.
The applicant appears before the Court today in person. The husband is represented at Court today by his solicitor. The husband resides in China and has resided there since the parties' separation in 2019.
In support of her application, the wife relies upon the following documents:
·Her Amended Initiating Application filed 11 March 2022;
·Affidavit of Service filed 16 March 2022;
·Affidavit of the applicant wife filed 11 March 2022;
·Affidavit of the applicant filed 1 March 2022; and
·Application for Divorce filed 3 August 2021.
The wife was born in 1987 and is aged 34 years. She is an Australian citizen, having attained citizenship on 20 March 2017. She lives in Suburb C, Victoria and is employed as a health professional.
The husband was born in 1986 and is aged 35 years. He lives in City D, China and is employed as a professional.
There is one child of the marriage, X, who was born in 2017 and is aged five years. He resides in Melbourne with the wife and she deposes that he enjoys good health. He has commenced primary school this year and attends a primary school in Suburb C, Victoria.
The parties commenced their relationship in Melbourne but travelled to China in 2016 to marry in the presence of their family members. The parties married in City E, China in 2016. Following their marriage, the parties returned to live in Melbourne.
Upon the parties' return to Melbourne, the husband made application for a spouse visa. The parties agreed to enter into an Australian marriage, assuming that it would assist the husband's spouse visa application. To that end, they entered into another marriage in Melbourne in 2017. In about November 2018, the parties travelled to China, as the husband had secured an employment opportunity there. Shortly thereafter, the parties separated and in about January 2019, the wife and X returned to Melbourne to live. The husband has continued to live in China since that time.
On 3 August 2021, the wife filed an Application for Divorce. That application was listed before the Federal Circuit and Family Court of Australia (Division 2) on 14 December 2021. The husband was represented and filed a response with respect to that application, it being his position that there were errors in the wife's application as the parties had first married in China in 2016. As a result of the parties having earlier entered into a valid marriage, the wife's application for a divorce order in respect of the marriage entered into in 2017 was dismissed. It is against that backdrop that the wife now seeks a declaration of nullity in respect of the second marriage the parties entered into and, further, a divorce order in relation to their Chinese marriage.
On 24 December 2021, the wife's application for a declaration as to nullity of marriage was transferred to Division 1 of the Federal Circuit and Family Court of Australia. The matter was listed for a directions hearing before Judicial Registrar Magee. On 11 February 2022, the matter was listed for hearing before me. In addition, orders were made permitting the wife to serve the husband with documents in the proceeding by email at his specified email address. Leave was also granted to the wife to file an amended initiating application. That application was subsequently filed on 11 March 2022.
In her affidavit, filed 16 March 2022, the wife deposes that, in accordance with the orders of 11 February 2022, on 15 March 2022, she served by electronic communication on the husband at his specified email address, the following documents: her amended initiating application and her affidavit affirmed 11 March 2022. Having regard to that affidavit, I am satisfied that the wife has affected service in accordance with the Court orders.
The husband is represented at Court today through his solicitor. She has confirmed her instructions that the husband does not oppose the applications made by the wife for a decree of nullity of the marriage entered into in Melbourne in 2017 and, further, that he does not oppose the application for a divorce order in respect of the marriage entered into by the parties in China in 2016.
Section 51 of the Family Law Act1975 (Cth) provides that an application for a decree of nullity of marriage shall 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 of nullity is simply a declaration which confirms the fact that there was never a valid marriage.
Sections 23 and 23B of the Marriage Act 1961 (Cth) (“Marriage Act”) set out the grounds for a decree of nullity of marriage. Section 23B(1) of the Marriage Act sets out the bases upon which a marriage is void and provides:-
(1) A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:
(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 section 48 the marriage is not a valid marriage;
(d) the consent of either of the parties is not a real consent because:
(i) it was obtained by duress or fraud;
(ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
(iii) that party did not understand the nature and effect of the marriage ceremony; or
(e) either of the parties is not of marriageable age;
…
Section 23B(1) of the Marriage Act makes no specific provision for the current circumstances in which the parties find themselves; that is, having entered into a valid marriage in China, they have entered into a second marriage in Australia. While section 23B(1)(a) of the Marriage Act provides that a marriage is void where either of the parties is, at the time of the marriage, lawfully married to some other person, it does not contemplate a second marriage between the same parties.
Section 113(1)(a) of the Marriage Act provides as follows:-
(1) Except in accordance with this section:
(a)persons who are already legally married to each other shall not, in Australia or under Part V, go through a form or ceremony of marriage with each other; and
(b)a person who is authorised by this Act to solemnise marriages shall not purport to solemnise a marriage in Australia or under Part V between persons who inform the first-mentioned person that they are already legally married to each other or whom the first-mentioned person knows or has reason to believe to be already legally married to each other.
It seems to me that, having regard to those provisions, in circumstances where there is an express prohibition against a second marriage such as that entered into by the parties in Melbourne, the second marriage should be declared void. I am satisfied, having regard to the provisions of section 113(1)(a) of the Marriage Act, that the second marriage entered into by the parties is void, notwithstanding the fact that such circumstances are not specifically referred to in section 23B(1) of the Marriage Act.
That view is bolstered having regard to the decision of Berman J in Zau & Huang [2015] FamCA 873, where his Honour considered circumstances similar to those the subject of the current application. In that decision, his Honour, in determining the position of parties who had entered into a first marriage in China and a second marriage in Australia, held that:-
The general prohibition on second marriage ceremonies in section 113(1)(a) does pose a problem...
The difficulty, possibly the hiatus in the legislation, is that the Marriage Act says nothing about the status of the second marriage ceremony in contravention of the provision. Again, I think commonsense and logic must be brought to bear and I consider that any such marriage ceremony must be devoid of any legal effect, and therefore a nullity, and the marriage itself, in this case the Australian marriage, must therefore be void.
Further, at [20] of that judgment, his Honour noted:-
Section 23B(1) however, makes no provision for the situation just enunciated. Section 23B(1)(a) declares a marriage to be void where:
… either of the parties is, or at the time of the marriage, lawfully married to some other person…
but it is silent about the effect of a marriage where both of the parties are already lawfully married to each other. Again, I consider logically, such a marriage must also be void, notwithstanding that it is not referred to in s 23B(1), and that notwithstanding the apparently exclusive nature of the words, and to otherwise at the conclusion of the subsection.
I respectfully concur with the observations of Berman J in Zau & Huang [2015] FamCA 873, that it is a matter of logic and common sense, having regard to the provisions of sections 113(1)(a) and section 23B(1)(a) of the Marriage Act, that any second marriage ceremony must be void of any legal effect and, therefore, a nullity. Accordingly, I am satisfied that the second marriage entered into by these parties is void and I will make a declaration as to nullity.
Turning then to the application for divorce, I note that proceedings for a divorce may be instituted if, when the application is made, either party to the marriage is an Australian citizen, is domiciled in Australia, or is ordinarily resident in Australia. That that is so is set out at section 39A of the Family Law Act 1975 (Cth) (“the Act”). I am satisfied, having regard to the wife's evidence, that she is an Australian citizen who is domiciled in and ordinarily resident in Australia.
An application for divorce is made pursuant to Part VI of the Act. The only ground for divorce is the irretrievable breakdown of the marriage established by the separation of the parties for a continuous period of not less than 12 months immediately preceding the date upon which the divorce application was filed and there being no reasonable likelihood of the resumption of cohabitation.
The evidence before the Court is that the parties separated in China in December 2018 and, further, that they have lived separately and apart since at least January 2019, when the wife and the child returned to live in Australia whilst the husband remained living in China.
There is one child of the marriage under the age of 18. Accordingly, the provisions of section 55A(1)(b) apply. That is, the Court must be satisfied that:-
(i) proper arrangements in all the circumstances have been made for the care, welfare and development of those children; or
(ii) there are circumstances by reason of which the divorce order should take effect even though the court is not satisfied that such arrangements have been made.
The evidence before the Court is that the wife lives in Suburb C with the parties' child. She deposes that the child is in good health. She deposes in her original Application for Divorce filed 3 August 2021 that she is working full-time as a health professional and that she is responsible for the financial support of the child. She further deposes that, at that time, the child was attending childcare and was settled in his environment. Today, the wife has informed the Court that the child has now commenced attending primary school. She has indicated that he is in his Prep year, that he is enjoying school and is making friends, and that he is thriving in his school environment.
The husband, in his response to the original divorce application, deposes that he has transferred funds to the wife to assist with the financial support of the child. The wife has confirmed this day that a total of approximately $35,000 has been transferred by the husband to her, which has provided some financial assistance for her and the child. Having regard to the evidence of both the husband and the wife, I am satisfied that proper arrangements have been made for the care, welfare and development of the child of the marriage.
In all the circumstances, I am satisfied that the requirements of sections 39(3), 48 and 55A of the Family Law Act 1975 (Cth) are satisfied. I am satisfied that the parties were married in 2016. I am satisfied that the wife is an Australian citizen and was domiciled and ordinarily resident in Australia when her original Application for Divorce was filed. I am satisfied that the parties have been separated for not less than 12 months immediately before the divorce application was filed. Further, I am satisfied that there is no reasonable prospect of the parties resuming cohabitation and that the marriage has broken down irretrievably. Accordingly, a divorce order will be made to take effect one month from the date of these orders.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 11 May 2022
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