Vun and Pen - [2020] FamCA 682

FAMILY COURT OF AUSTRALIA

VUN & PEN

[2020] FamCA 682

FAMILY LAW – PRACTICE AND PROCEDURE – SUMMARY DISMISSAL – Where wife seeks dismissal under Rule 10.12 of the application by the applicant husband for a declaration of marriage to be declared void and a nullity – Where discussion of applicable principles – Wife’s application dismissed.

Family Law Act 1975 (Cth) s 45A, 51
Marriage Act 1961 (Cth) ss 23B, 48
Family Law Rules 2004 (Cth) r 10.12

Ebner & Pappas [2014] FamCAFC 229; (2014) FLC 93-619
Friar & Friar [2011] FamCAFC 71
Kokl & Kokl (1981) FLC 91-078
Lindon v Commonwealth of Australia (No. 2) [1996] HCA 14
Re S (1980) FLC 90-820
Teves III and Campomayor (1995) FLC 92-578
Thorne v Kennedy [2017] HCA 49

APPLICANT:

Mr Vun

RESPONDENT:

Ms Pen

FILE NUMBER:

PAC

3665

2018

DATE DELIVERED:

14 August 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

By way of written submissions last received on 7 July 2020

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT:

Mr Vun

SOLICITOR FOR THE RESPONDENT

Linden Legal

Orders

The wife’s application for summary dismissal be 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 Vun & Pen 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 PARRAMATTA

FILE NUMBER: PAC 3665 of 2018

Mr Vun

Applicant

And

Ms Pen

Respondent

REASONS FOR JUDGMENT

On 2 November 2018 the applicant husband filed an Initiating Application in this Court. The application sought a declaration that the marriage between himself and the respondent wife conducted at Suburb B in the state of New South Wales in 2014 be declared void and a nullity.
The husband had previously filed an Initiating Application in the Federal Circuit Court of Australia seeking a declaration as to nullity. Regrettably, that court had no jurisdiction to deal with the application.
On 25 October 2018 the application for a declaration as to this nullity filed by the husband in the Federal Circuit Court was transferred by a judge of that court to this Court. On 30 October 2018 a registrar of this Court directed that the husband file and serve an application for nullity in this Court within 14 days. The husband’s application in this Court was filed on 2 November 2018.
On 18 December 2018 the application for nullity was listed before a registrar for directions. It was ordered by the registrar:
a)that the husband file and serve by 5 January 2019 a consolidated affidavit in support of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Vun and Pen

Details

AGLC: Vun and Pen [2020] FamCA 682
Case: [2020] FamCA 682
Decision Date: 14 August 2020

CaseChat Overview and Summary

In the matter of *Vun and Pen*, Foster J of the Federal Circuit and Family Court of Australia considered an application by the wife for summary dismissal of proceedings. The precise nature of the underlying dispute between the parties is not detailed in the provided text, but it is clear that the wife sought to have the proceedings brought against her dismissed at an early stage.

The central legal issue before the Court was whether the wife's application for summary dismissal should be granted. This required the Court to assess whether the proceedings, as they stood, were so lacking in merit or otherwise unsustainable that they should be terminated without a full hearing.

Foster J dismissed the wife's application for summary dismissal. While the specific reasons for this decision are not elaborated upon in the provided extract, the outcome indicates that the Court found sufficient grounds for the proceedings to continue, rather than being summarily terminated.

The Court ordered that the wife's application for summary dismissal be dismissed.

Orders

Orders of the court

The wife’s application for summary dismissal be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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