WILSON & STINSON

[2012] FamCA 219

FAMILY COURT OF AUSTRALIA

WILSON & STINSON [2012] FamCA 219

FAMILY LAW – NULLITY – Application - Husband claims that wife’s former husband was still alive - Evidence on the balance of probability establishes that her husband had died and that she was a widow at the time of the marriage to the applicant - Application dismissed.

FAMILY LAW – COSTS - Application for costs by the respondent.  Application refused as there are no justifying circumstances.

Family Law Act 1975 (Cth)
Marriage Act 1961 (Cth)

APPLICANT: Mr Wilson

RESPONDENT: Ms Stinson

FILE NUMBER: MLC 4737 of 2011

DATE DELIVERED: 31 MAY 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 28 May 2012

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Southey

SOLICITOR FOR THE RESPONDENT: Cahill & Rowe Family Law

Orders

1. That the application of the husband filed 29 December 2011 is dismissed.

2. That the response of the wife filed 4 April 2012 is dismissed.

3. That the application by the wife for divorce filed 25 May 2011 is listed for final hearing upon delivery of these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilson & Stinson 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 4737  of 2011

Mr Wilson

Applicant

And

Ms Stinson

Respondent

REASONS FOR JUDGMENT

1. Mr Wilson (to whom I shall refer as “the husband”) married Ms Stinson (to whom I shall refer as “the wife”) in May 2009 in Melbourne.

2. To establish that the marriage occurred, two certificates were filed.  In the formal certificate of marriage, the husband described his conjugal status as “divorced” and the wife described her conjugal status as “widow”. 

3. In the proceedings before me, the husband was the applicant.  He alleged that the marriage was invalid.  He sought that it be declared to be a nullity because he maintained that the wife was not eligible to marry him on that date.  Contrary to the wife’s assertion and to the endorsement on the marriage certificate as a widow, the husband says that her former husband was and is still alive.

4. The application before the Court arises out of s 51 of the Family Law Act 1975 (Cth) (“the Act”). The Court can grant a decree of nullity of the marriage if it is satisfied that the marriage was void.

5. The grounds upon which a marriage may be declared void are set out in s 23B of the Marriage Act 1961 (Cth). The relevant provision in this case is that at the time of the marriage, one of the parties was lawfully married to some other person.

6. The proceedings began in the Federal Magistrates Court when the wife filed an application for divorce.  Having regard to the husband’s response to that application, the proceedings were transferred by the Federal Magistrate to this Court.  Consequently, the husband filed an application on 29 December 2011 seeking a number of orders apart from an annulment of his marriage.  The other orders are no longer relevant as the husband agreed that he was not pursuing them.  At the hearing, the husband represented himself.

7. The wife filed a response to the husband’s application on 4 April 2012 simply seeking that the application be dismissed and that the divorce application which she had filed proceed.  She was represented by counsel in the proceedings.  It was agreed that in the event that I dismiss the husband’s application for the annulment of the marriage, the divorce should proceed and it was not then to be opposed.

8. As the husband was unrepresented, I explained to him the process that would be followed.  Counsel for the wife did not wish to cross-examine the husband but the husband did cross-examine the wife.

9. Much of the material of both parties was either irrelevant to the nullity issue or was directed to the credit of the other.  Nothing in the evidence that I heard would lead me to believe that the wife was not telling the truth.

10. The husband’s evidence was described by him as being the best he could obtain.  He had endeavoured to obtain other evidence including by going to the Philippines but as he conceded, he could not produce that evidence before me.  He did not seek to adjourn the proceedings.

11. The husband’s evidence was contained in an affidavit filed by him on 14 November 2011.  Although a number of affidavits were filed, it was that affidavit that he chose to rely upon as his evidence in chief.

12. The husband’s evidence was that he formed a relationship with the wife over the internet through a dating site in August 2007.  He said that the wife told him in text messaging in 2007 that she did not know if her first husband was alive or not because she had not seen him for a long time.  He said that she told him that she could get a death certificate because she knew people.  The husband said he suspected there was something not right but later, he was indeed shown a death certificate and he assumed it was real.  He then married her and the relationship ended very quickly thereafter. 

13. The husband relied upon some documents to support his position which included material received from the Department of Immigration.  That material was admitted into evidence by consent.  In addition, the husband pointed to what he saw as in inconsistency between what the wife told the Department and what she told this Court in her evidence.  I reject that.  The two different dates referred to about when she obtained the death certificate are not inconsistent.

14. The husband also produced a photograph of two women and what appears to be a child placing a candle before the name plate of the wife’s first husband.  I am not at all convinced that that takes the matter any further.

15. The Department of Immigration records show that when the wife first sought to obtain residency status, the departmental representatives had concerns about the authenticity of her claim that she was a widow.  Those same records then show that inquiries were made and declarations were received from two relatives.  Undeterred, the departmental representative then examined records and was satisfied as to the death of the husband of the wife.  To some extent, the husband relied upon that material to show either an inconsistency in the wife’s evidence or that it proved that she was not creditworthy.  Quite the contrary, it corroborated the evidence of the wife.

16. The wife’s evidence was that she married her first husband in January 1995 and they had a child with whom she now lives and who is 16 years of age.  The wife said that in 1997, her husband disappeared.  She said they were having many arguments and he was abusive.  She said she made attempts to find him many times but was unsuccessful.  She said she tried to contact her husband’s family but members thereof were uncooperative. 

17. The wife’s evidence was that in September 2007 or thereabouts, she received a copy of a death certificate in the mail.  It referred to a death in May 2004.  She produced that certificate.  In her evidence she went on to say she went to an address on the death certificate and spoke to the husband’s family but they did not want to provide her with any information.  She said she had every reason thereafter to believe that her husband had died.

18. The wife said she applied for another certificate in January 2008 to provide to the immigration authorities even though for reasons unexplained, she wanted to obtain a death certificate herself bearing in mind that she had only received one in the mail from an unknown source.  She then obtained what appears to be the death certificate now before the Court.

19. She then met the applicant and they consequently married.

20. In a record of text messages sent between the husband and the wife in June 2007, the wife is recorded as saying she did not know if her husband was dead.  Whilst an adverse inference might be drawn, the husband did not test that evidence when he had the opportunity with the wife in the witness box.  I have the sworn evidence of the wife.  I have a death certificate.  That death certificate is corroborated by the documents from the Immigration Department officer.

21. I am satisfied that on the date of the marriage, the wife was indeed a widow as her former husband died in May 2004.  I find therefore on the date of the marriage, the wife was indeed eligible to marry.

22. On the evidence, there is no basis for me to grant the husband’s application and it will be dismissed.

23. I propose to adjourn into open court the divorce application of the wife filed on 25 May 2011.

24. The parties each argued the question of costs.

25. Section 117 of the Act provides that in proceedings before the Court, each party shall bear their own costs unless there are circumstances that justify a departure from that principle. I take into account that the husband has not been represented by a lawyer although I understand he had legal advice. This is not a case in which I could find that there were circumstances that justify a departure from the normal principle because the matter was decided on the balance of probabilities. There is no evidence of any aberrant behaviour by either party nor any evidence that someone had indicated that there was a paucity of evidence upon which to have the Court hear the case. I propose therefore not to make any order for costs in this case.

I certify that the preceding Twenty Five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 31 May 2012.

Associate: 

Date:  31 May 2012