TYLER & TYLER

[2017] FamCA 872

FAMILY COURT OF AUSTRALIA

TYLER & TYLER [2017] FamCA 872

FAMILY LAW – NULLITY – Whether the marriage is void – Where the respondent was lawfully married to another person at the time of the marriage – Decree of nullity granted.
Family Law Act 1975 (Cth), s. 51 Family Law Rules 2004, r. 11.02, 11.03 Marriage Act 1961 (Cth), s.23B
APPLICANT:	Mr Tyler

RESPONDENT: Ms Tyler

FILE NUMBER: BRC 51 of 2017

DATE DELIVERED: 26 June 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 26 June 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Quinn & Scattini

FOR THE RESPONDENT: No appearance

Orders

it is declared that:

1. The marriage solemnised between Mr Tyler and Ms Tylor on … 2013 is void.

it is ordered that:

1. A decree of nullity in relation to that marriage is granted.

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 Tyler & Tyler 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 BRISBANE

FILE NUMBER: BRC 51 of 2017

Mr Tyler

Applicant

And

Ms Tyler

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. When this matter first came before the court on 20 March 2017, there was no appearance by or on behalf of the parties, and, accordingly, the application was dismissed. 

2. The matter comes back before me pursuant to an application in a case filed 6 April 2017 in which an order is sought in the following terms: 

   (1) That pursuant to Rule 11.03(1)(b), the order made 20 March 2017 be dismissed on the basis that the applicant’s failure to appear was caused by the party’s lawyer and not by the applicant himself.

   (2) That the initiating application filed 4 January 2017 be listed for hearing before a judge on a date to be fixed. 

3. Rule 11.03(1)(b) of the Family Law Rules 2004 provides that a party may apply for relief from an order under subrule 11.02(2).

4. Rule 11.02(2) relevantly provides that if a party does not comply with these Rules, the Regulations or a procedural order, the court may set aside an order made.

5. In my view, the failure to appear is not a failure to comply with Rules, Regulations or a procedural order.  However, I have granted the applicant leave to make an oral application in terms of the original application filed on behalf of the applicant on 4 January 2017 in which it is sought that the marriage entered into between Mr Tyler and Ms Tyler solemnised in 2013 be declared absolutely null and void.

6. The application is made pursuant to section 51 of the Family Law Act 1975 (Cth) (“the Act”), and the only ground upon which a decree of nullity may be granted is that the marriage is void.

7. Section 23B of the Marriage Act 1961 (Cth) relevantly provides that a marriage is void where either of the parties is, at the time of the marriage, lawfully married to some other person.

8. The applicant and respondent undertook a marriage ceremony at B Town in the State of Queensland in 2013.  At that time, the applicant was lawfully married to Ms C whom he had married in 2011.  The applicant deposes to having believed that at the time of the ceremony to the respondent, he was divorced from Ms C.  That was not the case, and on 7 August 2015, the applicant was convicted of bigamy for which he was fined and required to enter into a good behaviour bond.  The fine has been paid and the period of the good behaviour bond is due to expire in August of this year. There is no suggestion that the applicant has done other than comply with the good behaviour bond.

9. The applicant and respondent remain in a committed relationship and have two children together aged four and 18 months respectively.  The respondent has filed an affidavit in which she states she has no objection to the application made, and in an email annexed to the affidavit of the applicant’s solicitor filed by leave today, she indicates her continued support for the order sought in the application made by the applicant in January.

10. I am satisfied that at the time of the marriage ceremony to the respondent, the applicant was already married, and thus the marriage to the respondent is void, and I make the orders as set out above.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 26 June 2017.

Associate:

Date:  29 June 2017