Trang and Duong

[2019] FamCA 651

FAMILY COURT OF AUSTRALIA

TRANG & DUONG [2019] FamCA 651

FAMILY LAW – NULLITY – where the applicant was lawfully married to another person at the time of the marriage to the respondent – decree of nullity ordered.

Family Law Act 1975 (Cth) s 51 Marriage Act 1961 (Cth) s 23B
APPLICANT:	Ms Trang

RESPONDENT: Mr Duong

FILE NUMBER: MLC 6189 of 2019

DATE DELIVERED: 13 August 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 13 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Jessy

SOLICITOR FOR THE APPLICANT: Monica Shamon Lawyers

THE RESPONDENT: In person

Orders

1. That pursuant to s 51 of the Family Law Act 1975 (Cth) I pronounce a decree of nullity of the marriage between Ms Trang and Mr Duong solemnised in October 2016 at Suburb C in the State of Victoria on the ground that as at that date the marriage was void because the applicant was lawfully married to another person.

2. That the Initiating Application filed 6 June 2019 be otherwise dismissed.

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 Trang & Duong 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 MELBOURNE

FILE NUMBER: MLC 6189 of 2019

Ms Trang

Applicant

And

Mr Duong

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. These proceedings come before the Court today in a Judicial Duty List upon the Initiating Application of the applicant filed 6 June 2019.  That application is supported by her affidavit filed the same date.  Also filed on 6 June 2019 is an affidavit of the respondent.  The application before the Court is an application seeking a declaration that the marriage between the applicant and the respondent, which occurred in 2016, be declared a nullity.

2. The application is made pursuant to section 51 of the Family Law Act 1975 (Cth) (“the Act”), which provides that an application under this Act for a decree of nullity of marriage shall be based on the ground that the marriage is void. The provisions that are relied upon as to whether or not the marriage is void are to be found at section 23B of the Marriage Act 1961 (Cth) (“the Marriage Act”).  In particular, section 23B(1)(a) of the Marriage Act provides as follows:-

   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 either of the parties is, at the time of the marriage, lawfully married to some other person.

3. The applicant deposes in her affidavit filed 6 June 2019 as to the circumstances at the time of the marriage solemnised between the applicant and the respondent.  She deposes that in 2009 she entered into a marriage in Country D with Mr B.  She deposes that at that time she entered into a marriage with Mr B, he was living in Australia whilst she was living in Country D.  She deposes that she commenced living in Australia in or around January 2011 and that by 30 August 2014, both she and Mr B had decided to separate.

4. She further deposes that she met the respondent in about 2016 and that they entered into a marriage in 2016.  Annexure D-1 to her affidavit is the marriage certificate issued by the Registrar of Births, Deaths and Marriages in the State of Victoria which confirms the marriage between the applicant and the respondent in 2016. 

5. The applicant deposes that she was served with a divorce order in relation to her marriage with Mr B in 2017.  Annexure D-2 to her affidavit is a copy of the divorce order made in the Federal Circuit Court of Australia at Melbourne on 25 November 2017.  That divorce order confirms that the Court found at the hearing on 24 October 2017 that the marriage between Mr B and the applicant in 2009 was proved. 

6. It is therefore evident from that divorce order that, at the time that the applicant and the respondent married, the applicant was already married to Mr B.

7. I am satisfied, therefore, that at the time of the marriage between the applicant and the respondent, that the applicant was already married to another person. As a result, pursuant to the provisions of section 23B(1)(a) of the Marriage Act, I am satisfied that the marriage between the applicant and the respondent is void. That being the circumstance, I will make the declaration as sought.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 13 August 2019.

Associate: 

Date:  13 August 2019