Tran & Hoang
[2023] FedCFamC1F 320
•5 April 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tran & Hoang [2023] FedCFamC1F 320
File number(s): MLC 2759 of 2022 Judgment of: JOHNS J Date of judgment: 5 April 2023 Catchwords: FAMILY LAW – NULLITY – where applicant was lawfully married to another person at the time of marriage to the respondent – where applicant had entered into first marriage in Vietnam – where applicant entered into marriage with respondent in Australia – where it is established the Australian marriage is void – decree of nullity ordered Legislation: Family Law Act 1975 (Cth) s 51
Marriage Act 1961 (Cth) ss 23, 23B(1), 88G(1)
Division: Division 1 First Instance Number of paragraphs: 22 Date of hearing: 5 April 2023 Place: Melbourne Counsel for the Applicant: The Applicant appeared in person Solicitor for the Respondent: Ms Drew Solicitor for the Respondent Intouch Legal Centre ORDERS
MLC 2759 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TRAN
Applicant
AND: MS HOANG
Respondent
order made by:
JOHNS J
DATE OF ORDER:
5 APRIL 2023
THE COURT ORDERS THAT:
1.That the marriage entered into between the applicant MR TRAN and the respondent MS HOANG at Suburb B in 2020 is declared null and void.
2.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 Tran & Hoang has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
INTRODUCTION
By Application for Final Orders filed 18 March 2022, the applicant Mr Tran seeks a declaration that the marriage between he and the respondent, Ms Hoang solemnised in 2020 at Suburb B is a nullity. He contends that at the time he entered into that marriage, he was married to Ms C.
The applicant relies on his affidavits filed 18 March 2022, 17 October 2022 and 23 March 2023 in support of that application.
The respondent filed a Response to Application for Final Orders on 21 February 2023. In that application she seeks that the marriage with the applicant be annulled on the basis that he was already married to another person.
When the matter was last before the Court on 3 March 2023, both the applicant and the respondent appeared in person. The Notation to the orders made that day confirms the Respondent’s position as follows:-
A.The Application for a Declaration of Nullity is not opposed by the Respondent.
BACKGROUND
The applicant was born in 1994 and is aged 28 years. He is employed as a labourer and resides in Suburb D.
The respondent was born in 1997 and is aged 25 years. She is employed in the beauty sector and also resides in Suburb D.
In his first affidavit, the applicant deposes that he married Ms C in 2017 in Vietnam. Annexed to his affidavit filed 18 March 2022 is the marriage certificate in respect of that marriage. It confirms that the applicant and Ms C married at the E Office, F District, G Region in 2017.
Further, the applicant deposes that it was his belief that Ms C had applied for a divorce in Vietnam with respect to their marriage as she wished to marry another person.
The applicant deposes that he understood that his divorce to Ms C had been finalised. Accordingly, he entered into his marriage with the respondent at Suburb B in 2020. The applicant deposes that it was only after he had married the respondent that he learnt that his divorce to Ms C had never been finalised.
The husband has resumed his relationship with Ms C with whom he has two children. In the circumstances, he seeks a declaration of nullity in relation to the marriage to the respondent.
PROCEDURAL HISTORY
The application was originally filed in Division 2 of the Federal Circuit and Family Court of Australia. On its first listed date before a Senior Registrar, being 2 May 2022 it was transferred to this Court.
The matter was further listed before a Deputy Registrar in Division 2 of the Federal Circuit and Family Court of Australia on 5 May 2022 when orders were again made for the matter to be transferred to a Directions Hearing before a Judicial Registrar on 23 May 2022. That day, directions were made for the listing of the application before a Judicial Registrar for a ‘procedural hearing’.
Since that time the parties have endured six further procedural hearings before a Judicial Registrar. At those hearings various directions have been made to ensure the application is ready to proceed. Orders have also been made extending time for compliance with previously made orders permitting the parties to file further material.
On 3 March 2023 the Judicial Registrar made orders for the parties to file additional affidavits and otherwise made directions that all extant applications be listed for final hearing before me on a date to be fixed. On 6 March 2023, I made orders in Chambers listing the matter for hearing on 5 April 2023.
I set out that background given my concern as to the extraordinary delay in the progress of the matter. It has been in the Court system for more than a year and has had no less than nine procedural hearings before Judicial Registrars. I have no doubt that those delays have caused considerable distress to the litigants and have visited a significant cost upon them, and the community. Given the limited and discrete nature of the issue before the Court, in my view such delays are unacceptable.
LEGAL PRINCIPLES
Section 51 of the Family Law Act 1975 (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 provides that a marriage is void where either of the parties is, at the time of the marriage, lawfully married to some other person.
Section 88G(1) of the Marriage Act 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 of the validity of the marriage.
DISCUSSION
Having regard to the marriage certificate produced by the applicant as to his first marriage to Ms C in 2017 in Vietnam, and in circumstances where both the applicant and the respondent contend that it was a valid marriage, I am satisfied that that marriage was recognised in Vietnam as a valid marriage between the applicant and Ms C for the purposes of the law in Vietnam. Accordingly, I am satisfied that the applicant and Ms C entered into a valid marriage in accordance with the provisions of s 88G(1) of the Marriage Act.
Further, I accept the applicant’s evidence that notwithstanding his belief at the time of his marriage to the respondent that he was divorced, that in fact no valid divorce had ever been granted in respect of his marriage to Ms C. Accordingly, I am satisfied that at the time he entered into the marriage to the respondent in 2020, he was lawfully married to another person, namely Ms C.
Having regard to that circumstance, I find that the marriage to the respondent, which was solemnised in 2020 is null and void. Accordingly, I will make a declaration that that marriage is a nullity.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 5 April 2023
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