TURNER & TURNER

[2009] FamCA 876

FAMILY COURT OF AUSTRALIA

TURNER & TURNER [2009] FamCA 876

FAMILY LAW – MARRIAGE – NULLITY – Lawfully married to another person at the time of the marriage

Family Law Act 1975 (Cth)
Marriage Act 1961 (Cth)

APPLICANT: Ms Turner

RESPONDENT: Mr Turner

FILE NUMBER: SYC 2195 of 2009

DATE DELIVERED: 27 May 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston JR

HEARING DATE: 27 May 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Carroll, solicitor of Legal Aid NSW

FOR THE RESPONDENT: No appearance by or on behalf of the respondent

Orders

1. That the applicant is given leave for her Application for a Decree of Nullity of Marriage to be heard on an undefended basis.

2. That the Court is satisfied that the applicant is an Australian citizen.

3. That the Court is satisfied that the ground for a Decree of Nullity of Marriage has been established.

4. That by decree the marriage solemnized on … September 1996 between Mr Turner and Ms Turner is declared to be absolutely null and void.

5. That the Court requests the Registry Manager to forward a copy of the file in these proceedings to the Secretary, Attorney-General’s Department, Canberra.

IT IS NOTED that publication of this judgment under the pseudonym Turner & Turner is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2195 of 2009

MS TURNER

Applicant

And

MR TURNER

Respondent

REASONS FOR JUDGMENT

1. This is an application by Ms Turner for orders to the effect that the marriage between herself and Mr Turner on … September 1996 be declared null and void. The respondent to the proceedings is Mr Turner.  I am satisfied that Mr Turner is aware that these proceedings are before the Court today and I shall refer to this particular aspect of the matter again below.

2. The parties married on … September 1996 at M. They separated in late September 2008.

3. After separation the applicant was undertaking some packing up of the parties’ possessions.  As she was looking through some papers of the respondent she discovered a divorce application apparently prepared by a Ms ET, who had been married to the respondent in Sydney in September 1988.  The divorce application appeared to have been filed in the Canberra Registry of this Court on 26 October 1999. The applicant also sighted a copy of the relevant decree nisi of dissolution of marriage pronounced on 8 December 1999 which had become absolute on 9 January 2000.

4. The last direct contact which the applicant had with the respondent was an email communication from him on 2 October 2008.  But her solicitor, Ms Carroll, forwarded a copy of the application for this decree of nullity and the affidavit in support to the respondent by an email and Ms Carroll received a reply from the respondent by email dated 18 May 2009.

5. The ground for a decree of nullity which is relied on by the applicant is set out in s 23B(1)(a) of the Marriage Act 1961. This provides to the effect that a marriage solemnized in Australia that takes place after the commencement of s 13 of the Marriage Amendment Act 1985 is void whether either of the parties is, at the time of the marriage, lawfully married to some other person. 

6. I am satisfied on the basis of the material before the Court that in this case, at the time that the respondent entered into the marriage with the applicant in these proceedings on … September 1996, he was still lawfully married to Ms ET, those two persons having been married in Sydney in September 1988 and not having been divorced until 9 January 2000.  In those circumstances, in my view, the ground for nullity has been established.

7. I note that the Court is satisfied that the applicant is an Australian citizen.  I note that the court is satisfied that the ground for a decree of nullity of marriage has been established.

8. I make this notation that the Court proposes requests the registry manager to forward the file in these proceedings shall be forwarded to the Secretary, Attorney-General's Department, Canberra.

I certify that the preceding eight (8) paragraphs are a true copy of the Reasons for Judgment of Judicial Registrar W P Johnston.

Associate:     

Date:              14 September 2009