Wilkes and Long

[2012] FamCA 637

FAMILY COURT OF AUSTRALIA

WILKES & LONG [2012] FamCA 637

FAMILY LAW – DECLARATION of validity of marriage - Jointly supported by applicant and respondent - Affidavits accepted as to evidence of facts - Husband's earlier marriage being a relationship and not a marriage

Family Law Act 1975 (Cth)

APPLICANT: Mr Wilkes

RESPONDENT: Ms Long

FILE NUMBER: MLC 4373 of 2012

DATE DELIVERED: 30 JULY 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 30 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ogge

SOLICITOR FOR THE APPLICANT: Neill Ogge Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS DECLARED PURSUANT TO SECTION 113 OF THE FAMILY LAW ACT 1975 (CTH):

1. THAT the marriage of Mr Wilkes and Ms Long performed in a marriage ceremony at … in the State of Victoria on … February 2011 is a valid marriage and was duly solemnised pursuant to the provisions of the Marriage Act 1961 (Cth).

IT IS ORDERED

1. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties and to the Department of Immigration and Citizenship.

IT IS NOTED

A.THAT the finding of the Court was that the Applicant had not been previously married though he had lived in a long term, eighteen years, relationship with his former partner Ms U from whom he had separated, in Australia, on 1 July 2007.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilkes & Long has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4373  of 2012

Mr Wilkes

Applicant

And

Ms Long

Respondent

REASONS FOR JUDGMENT

1. By any application filed 17 May 2012 the applicant Mr Wilkes seeks a declaration from the Family Court of Australia that the marriage which he entered into, in a civil ceremony, in February 2011 is a valid and properly solemnised marriage for the purposes of the laws of Australia.  The applicant relies upon his affidavit filed 17 May 2012 to which are annexed various documents supporting his case.  He further relies upon an affidavit of his solicitor who was also the marriage celebrant, an affidavit of his former de facto partner Ms U and the affidavit of a Mandarin interpreter, Ms C. 

2. I am satisfied that the evidence in this case does establish that the applicant had lived in a lengthy de facto relationship with Ms U from about February 1979 until their separation in Australia on 1 July 2007.  There are two children of that relationship identified in paragraph 11 of his affidavit and the court in these proceedings does not have to be concerned with issues of their welfare and emotional security as none of those matters are in issue.  I accept that the applicant and Ms U lived together for a period of 18 years, in Vietnam, then in China and finally in Australia. 

3. I have read and carefully considered the immigration documents upon which the family migrated to Australia from China in August of 1990.  I do understand that the declaration made to our government stated that they were a married couple in Vietnam.  In particular I have read paragraphs 16-23 (inclusive) of the applicant’s affidavit and I am satisfied that there was no formal ceremony of marriage entered into and thus there was no marriage between the applicant and Ms U.  In support of that conclusion Ms U has filed an affidavit in these proceedings on 17 May 2012, albeit, that the affidavit is prepared under Chinese name of Ms O and not her Vietnamese name. 

4. I accept the contents of her affidavit and specifically her deposition that neither the applicant husband nor she had ever been validly married.  The applicant has now met and was in a relationship and then a marriage to Ms Long who presently resides in China awaiting the outcome of a sponsorship application which was filed on 17 February 2012 to permit her to travel to and remain in Australia and live with her now husband. 

5. As part of the material annexed to the applicant’s affidavit there is recorded as annexure 3 the decision on the record made by a visa officer who determined that he was not satisfied that Ms Long met the legal requirements and thus she was refused a visa to travel to and live in Australia pursuant to the relevant section of the Migration Act. 

6. I have read and reviewed those carefully considered reasons for judgment. On the evidence before me I am satisfied that the relationship between the applicant and his now wife is that of a genuine and continuing spousal relationship, that they were and remain married and that it is appropriate for the court to pronounce a declaration as to the validity of that marriage pursuant to section 113 of the Family Law Act 1975.

7. For those brief reasons given ex tempore I will formally declare valid the marriage of … February 2011 between the applicant and Ms Long.  I will have these ex tempore reasons for judgment transcribed, placed upon the court file and made available to the parties. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 30 July 2012.

Associate: 

Date: