Vinh and Ngoc

[2007] FamCA 181

FAMILY COURT OF AUSTRALIA

VINH & NGOC [2007] FamCA 181

FAMILY LAW – NULLITY - APPLICATION DISMISSED

Family Law Act 1975 (Cth)

APPLICANT: MR VINH

RESPONDENT: MS NGOC

FILE NUMBER: MLF 2554 of 2006

DATE DELIVERED: 5 MARCH 2007

PLACE DELIVERED: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 5 MARCH 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR TRAN

SOLICITOR FOR THE APPLICANT: TRAN MINH PHUOC

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. THAT the husband’s application for nullity contained in his Form 1 application filed 29 August 2006 and 21 November 2006 be dismissed.

2. THAT all extant applications before the Court be otherwise dismissed.

3. THAT for the purposes of service upon the wife of any application for dissolution of marriage then the only requirement for service be that the document and accompanying documents as are required be served upon the wife by prepaid ordinary mail at her Vietnam address.

4. THAT I dispense with any requirement for the husband to attend any form of counselling in respect of the marriage.

5. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the solicitor for the husband.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2554  of 2006

MR VINH

Applicant

And

MS NGOC

Respondent

REASONS FOR JUDGMENT

1. The matter Vinh & Ngoc is before the court in proceedings where the husband seeks a nullity of the marriage.  The forfm 1 application instituting the proceedings was filed 29 August 2006 and the specific order for nullity was based upon the fact that the parties never resided together nor consummated the marriage.  It was further alleged that the wife deceived the husband as the marriage was based upon her fraudulent motive to marry to come to Australia, or to secure a future as the wife of an Australian citizen.

2. In support of that application there is an affidavit of the husband filed 29 August 2006 alleging that deception.  I am satisfied that there has been appropriate service upon the wife in Vietnam.  Mr Tran, solicitor, appears for the husband, and with the leave of the court this day, he has filed various acknowledgments of service and affidavits and in particular an affidavit of the wife confirming that the marriage is irretrievably broken down and that the intent in the wife in entering into the marriage was to live in Australia as well as to sponsor her children to migrate here.

3. The evidence before the court would indicate that the irretrievable breakdown of marriage occurred in April 2006 and thus there has not been a period of 1 years separation. I understand from Mr Tran the nullity application, rather than a divorce application, was filed to endeavour to deal with these issues immediately and without waiting for the 12 month separation requirement for divorce as is contained within the Family Law Act. I have raised with the husband's solicitor the issue that to obtain a nullity there needs to be shown that the consent of one of the parties was not a real consent, that is, it was obtained by fraud or duress.

4. The authorities that I have read clearly highlight that fraud has a very limited scope.  It is confined to fraud about the identity of the other party or the nature of the ceremony.  It does not relate to the motive of the other party in entering into the marriage.  Such motive could be a fraudulent intent to cohabit, but as such that does not found a successful nullity application.  Having carefully read the application and all supporting documents I am not prepared to announce a declared nullity of this particular marriage.  I am satisfied that the parties did enter into a ceremony of marriage.  I can well understand and find that the husband was deceived by the wife.  The facts thereafter speak for themselves.

5. The marriage was not consummated and the reality now is that the wife lives permanently in a village in Vietnam.  Currently the husband is also in Vietnam but will return to Australia.  The correct approach in this case, as and from 12 months separation, is for a decree nisi of dissolution of marriage to be filed by the husband and thereafter for a divorce to be pronounced.  What I propose to do in this case is to cancel any requirement for the parties and in particular the husband, to undergo any counselling necessitated by such a short marriage.

6. There are no children of the marriage.  It is clear that there is no hope of any reconciliation and indeed the wife is permanently living in Vietnam.  I am also satisfied that the wife wants the marriage brought to an end by the documents filed with the court.  The only service I will require upon the wife hereafter, is that the solicitors for the husband when the application for dissolution of marriage is issued in this court, will be required to post by ordinary mail a copy of that document and accompanying material required to be served to the village at which the wife now resides in Vietnam.  The particular details of that address are recorded on document 10 on the court file.

7. That is sufficient service and any other service upon the wife is formally dispensed with.  That should enable the dissolution of marriage application to proceed as quickly as is possible upon the expiration of the 12 months service. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: 
Date: 13 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as VINH & NGOC