Wyatt and Hsin-Lu

[2012] FamCA 313

FAMILY COURT OF AUSTRALIA

WYATT & HSIN-LU [2012] FamCA 313

FAMILY LAW – ANNULMENT - Application granted

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

APPLICANT: Mr Wyatt

RESPONDENT: Ms Hsin-Lu

FILE NUMBER: MLC 9130 of 2011

DATE DELIVERED: 24 January 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 24 January 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Stabler

SOLICITOR FOR THE APPLICANT: Brimbank Melton Community Legal Service

THE RESPONDENT: In person

Orders

1. That pursuant to s 51 of the Family Law Act 1975 (Cth) the Court declares that the marriage that took place between Mr Wyatt and Ms Hsin-Lu on 3 October 2010 is invalid.

2. That the Registry Manager provide a copy of this order and the reasons for judgment this day to the Registrar of Births, Deaths and Marriages.

3. That the reasons be transcribed.

4. That the application otherwise filed on 28 October 2011 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wyatt & Hsin-Lu has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 9130 of 2011

Mr Wyatt

Applicant

And

Ms Hsin-Lu

Respondent

REASONS FOR JUDGMENT

1. This is an application filed by Mr Wyatt on 28 October 2011.  The respondent is Ms Hsin-Lu.  She is his wife.  The matter was listed for hearing on 19 December 2011 before me in the judicial duty list.  On that occasion Mr Stabler appeared on behalf of the applicant, and there was no appearance by or on behalf of the respondent.  The respondent had been served, and I was so satisfied.  The difficulty I then faced was that although the matter on its face was undefended, there were obvious ramifications for the order.

2. Today, 24 January 2012, the respondent has appeared.  She is not represented by a lawyer, but she has told me and the transcript will note she has been to a lawyer who spoke to her in her language of first choice, which is the Vietnamese language.  She said that she took to him all of the documents that had been given to her by her husband and she asked questions.  That lawyer gave her advice, and it is not appropriate that I ask her what that advice was.  However, it is clear that the lawyer was sufficiently satisfied about the whole matter not to attend today nor to specifically appear for her and represent her interests.  She has still not filed any proceedings disputing the applicant’s case, and she has answered a number of specific questions that I put to her which are directed entirely to the ramifications of the order that her husband seeks. 

3. It is not the function of the Court to force people to do things that may have ramifications for them, and it is not the function of the Court to effectively babysit people’s positions.  However, I have made it clear that I am concerned about the consequences of all of this, but the respondent says that she is cognisant of the problems and she wants the orders made as sought by her husband.  For his part, Mr Wyatt, the applicant, has been represented throughout, and his counsel has indicated to me that he is well and truly aware of the consequences of the order that might be made, and it is still pursued. 

4. I turn, therefore, to the facts that give rise to this particular dispute.  The applicant married a woman by the name of Ms Z, and some time after their marriage, which occurred in 2005 under Chinese law, the relationship fell apart.  That was around 2007.  The applicant says that there was an attempt to mediate the relationship but that did not work, and in his words, “We concluded that the marriage was over.”  The parties did not separate physically but stayed together under the one roof.  In 2007 the applicant’s then wife informed him she was returning to China and that she intended to get a divorce whilst she was there.  It is a little confusing, but he described the words she used to get a divorce as “We were finished.”  He took it that that meant that she was going to finalise the divorce in China.  Therein lies the problem. 

5. He says in his affidavit, and it is not disputed by the respondent in these proceedings, that he automatically assumed that the divorce would be granted.  Rather unsatisfactorily, he then met up with the respondent, albeit that that was some two and a half years later and married her.  The circumstances thereafter are not relevant save to say that on 3 October 2010, with the assistance of a registered civil marriage celebrant in Melbourne, the applicant married the respondent. 

6. Two problems clearly arise. The first is that he really had no confirmation, let alone proof, that he was divorced from his first wife. Secondly, he told the civil marriage celebrant certain things that at best might be described as a guess and at worst that they were deliberately misleading. All of that now has clearly come to a head, and the problem that I am faced with is that the applicant now seeks to have his marriage to the respondent annulled on the basis that it was in breach of s 23B of the Marriage Act 1961 (Cth), and if that order is made, he, now having divorced his first wife, proposes to remarry the respondent.

7. The dilemma is that the ramifications for such an order are that the applicant faces the prospect of being prosecuted for bigamy, not to mention the potential false statement to the marriage celebrant.  In addition, the respondent is in Australia with the good graces of the Department of Immigration, and it is conceivable that the annulment would effectively mean that she, no longer being married to the applicant, may face the prospect of being removed from the country.  They are the problems.

8. Each of the parties has made it clear they understand what the ramifications and the problems are, and each still proposes to pursue the application. 

9. The reality is, of course, that the application is properly founded, and it is not disputed that the marriage that took place in Australia was contrary to s 23B of the Marriage Act.

10. Section 23B of the Marriage Act sets out the grounds upon which the Court under s 51 of the Family Law Act 1975 (Cth) can annul the marriage that took place. I am satisfied on the unchallenged evidence of the applicant that he was married at the time that the marriage ceremony took place, and accordingly, it is an invalid marriage. I propose, therefore, to grant the application and annul the marriage.

ORDERS DELIVERED

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 24 January 2012.

Associate: 

Date: