Walsh & Castellano
[2022] FedCFamC1F 514
Federal Circuit and Family Court of Australia
(DIVISION 1)
Walsh & Castellano [2022] FedCFamC1F 514
File number(s): BRC 11559 of 2021 Judgment of: BAUMANN J Date of judgment: 21 June 2022 Catchwords: FAMILY LAW – NULLITY – Application for Decree of Nullity – Court satisfied at time of marriage the respondent was still lawfully married – Decree granted Legislation: Marriage Act 1961 (Cth) Division: Division 1 First Instance Number of paragraphs: 8 Date of last submission/s: 21 June 2022 Date of hearing: 21 June 2022 Place: Brisbane Applicant: Litigant in person Respondent: Litigant in person (did not participate) ORDERS
BRC 11559 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR WALSH
Applicant
AND: MS CASTELLANO
Respondent
order made by:
BAUMANN J
DATE OF ORDER:
21 JUNE 2022
THE COURT ORDERS:
1.That a Decree of Nullity is made in respect of the marriage solemnised in 2007 between the Applicant Mr Walsh and the Respondent Ms Castellano.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Walsh & Castellano has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
On 30 August 2021, the Applicant Mr Walsh brought proceedings in this Court seeking an order that a marriage solemnised in B City in 2007 be declared to be a nullity. I am satisfied that the Application and affidavit in support sworn by the unrepresented Applicant on 30 August 2021 was personally served upon the Respondent Ms Castellano on 11 October 2021 at 4.46pm (see Affidavit of Service filed 14 October 2021). Curiously, although there are ongoing proceedings before a Division 2 Judge relating to parenting issues (the parties having three children, Y, Z and W) and financial issues, the legal representatives on the record for the Respondent in those proceedings are not involved in this Application. The Respondent has not filed a Response to the Initiating Application or any evidence. The Respondent has been well aware of the allegations maintained by the Applicant from as early as October 2021 when she would have received his affidavit.
Section 23(1) of the Marriage Act 1961 (Cth) provides the marriage is void where either of the parties was, at the time of marriage, lawfully married to some other person. The unchallenged evidence before the Court, contained in the affidavit of the Applicant, relevantly provides, and I accept, that on or about the 22 October 2007 in B City, the Respondent produced to the B City authorities a “Certificate of No Marriage Record (CENOMAR)” issued by the Country D Statistical Authority. I should mention that, although the Applicant in a subsequent affidavit seeks to demonstrate that the CENOMAR was probably falsified, it is not necessary for the purposes of the Application before me today to make any findings in respect of that allegation.
What can be said, however, is that the B City authorities were, at the time, satisfied with that document which was a prerequisite to undertaking a marriage under B City law at the time. I am satisfied that in 2007 the parties were married according to the laws of B City at the Central Marriage Registry. Annexure 1 to the Applicant’s affidavit, being the B City marriage certificate, shows the Respondent described herself as “Spinster” which I regard was reflective of a person who was single.
Subsequent to the marriage, the parties, as I have indicated, have conceived three children, Y, Z and W. The Applicant says that in late 2018 the parties separated under the one roof. The Applicant, who is an Australian citizen and resident but works often in B City, says that in or about May 2020 he regarded the relationship as at an end and physically separated.
The Applicant says in his affidavit that he has had suspicions about the status of the Respondent’s earlier marriage. In that regard, he says, from the bar table today, that he had met the children of the Respondent from her earlier relationship and in particular a child called X. This occurred initially in or about 2011 in Country D, the country of birth of the Respondent, and subsequent to that when X visited the Applicant and the Respondent when they were living in B City.
Annexure 2 attached to the Applicant’s affidavit is a certificate of marriage between the Respondent and a Mr C in Country D in 1991. The Applicant informs the Court that post separation he caused a lawyer in Country D to be engaged to conduct some searches of registries, I infer for him, after which the certificate of marriage became available and relevantly, a certificate of death of Mr C who died in 2015 in Country D. The certificate of death (Annexure 3 to the Applicant’s affidavit) shows at that time the deceased’s status was described as “married”. Relevantly, in my view, the informant recorded on the certificate of death was X, the daughter of the deceased, and I am satisfied from the evidence I have, the daughter of the Respondent.
When I consider all this evidence, and in the absence of the Respondent, who I am satisfied has had more than adequate opportunity to respond to the facts asserted by the Applicant in this case, I am satisfied that there has not been any annulment, dissolution or otherwise termination of the earlier marriage, before the marriage to the Applicant on 10 November 2007. I am satisfied on the evidence and on the balance of probabilities that at the time of the solemnisation of the marriage in 2007, the Respondent was still married to Mr C.
For those reasons, I make the declaration of nullity in accordance with law sought by the Applicant.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 19 July 2022
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