YEO & KEE

[2017] FamCA 423

FAMILY COURT OF AUSTRALIA

YEO & KEE [2017] FamCA 423

FAMILY LAW – MARRIAGE – Validity of Foreign Marriage – Decree of Nullity

Family Law Act 1975 (Cth)
Marriage Act 1961 (Cth)
Marriage Amendment Act 1985 (Cth)

Henry v Henry (1996) 185 CLR 571.
Hooshmand and Ghasmezadegan (2000) FLC 93-044.
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 565.

APPLICANT: Ms Yeo

RESPONDENT: Mr Kee

FILE NUMBER: SYC 2462 of 2012

DATE DELIVERED: 16 June 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 12 December 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Legal Aid NSW Gosford Family Law

SOLICITOR FOR THE RESPONDENT: Joun Lawyers

Orders

1. I declare that the marriage between Ms Yeo and Mr Kee purportedly entered into on … 2007 in City B, Country C  and which was registered on … 2008 at Suburb D, City E, Country C is invalid;

2. A divorce order in relation to the marriage between Ms Yeo and Mr Kee entered into at Suburb F New South Wales, Australia, on … 2008 is made, the order to take effect and thereby terminate the marriage on … 2017.

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 Yeo & Kee 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 CANBERRA

FILE NUMBER: SYC 2462 of 2012

Ms Yeo

Applicant

And

Mr Kee

Respondent

REASONS FOR JUDGMENT

1. This matter concerns an application in relation to the validity of a marriage entered into between the applicant and the respondent in Country C in the context of the respondent then being married to another person.  The proceedings otherwise concern a second marriage purportedly entered into between the applicant and the respondent in Australia following the respondent’s divorce from his previous wife. 

The sequence of events

1. The respondent married Ms G in 2000.  A certificate of marriage in relation to this marriage dated 2000 is Exhibit W1.  The respondent accepts that he was still married to Ms G at the time of his marriage to the applicant. 

2. The applicant and respondent purportedly married in Country C in 2007 with the marriage subsequently registered in 2008.  Annexures A and B of the applicant’s affidavit of 30 November 2016 show the date of the registration of the marriage, although not the date of the marriage ceremony.  The respondent accepts that he married the applicant in 2007 in a ceremony in City B in Country C.  Photographs of the ceremony are annexed at SJK 01 of the respondent’s affidavit. 

3. The applicant and respondent moved from Country C to Australia in approximately September of 2008.  A divorce order in relation to the marriage between the respondent and Ms G was made by the Federal Magistrates Court of Australia (as it then was) at Melbourne on 11 September 2008, to take effect from 12 October 2008 (see annexure C of the affidavit of the applicant filed 30 November 2016). 

4. The applicant and respondent then participated in a further marriage ceremony at the Sydney at a church at Suburb F, New South Wales in 2008, evidenced by a marriage certificate dated 2008 at annexure D of the applicant’s affidavit of 30 November 2016. 

5. The parties subsequently separated in February 2012. 

6. By Initiating Application dated 25 November 2015 the applicant sought that the Suburb F marriage be declared null and void.  By Amended Initiating Application dated 5 September 2016 the applicant changed her application and no longer sought that the Suburb F marriage be declared null and void but rather sought:

   A declaration that the marriage which took place on about … 2007 and which was registered on … 2008 at [Suburb D, City E, Country C], is null and void ab initio.

7. By Response filed 7 December 2016 the respondent sought the dismissal of the Amended Initiating Application and costs. 

8. The applicant filed for divorce on 25 November 2015 regarding the marriage that took place in Country C.

9. The applicant filed an amended application for divorce on 30 November 2016 regarding the marriage at Suburb F in Australia.

10. By amended case outline the applicant sought:

    1  The applicant wife seeks a declaration that he marriage which took place between the applicant wife and the respondent husband on about … 2007 and which was registered on … 2008 at [Suburb D, City E, Country C], be declared invalid;

    2  In addition, the applicant then seeks an order for the dissolution of the marriage that took place on … 2008 between the applicant wife and the respondent husband at Suburb F in the State of New South Wales Australia.

11. The respondent resisted the hearing of the question of the validity of the Country C marriage in Australia.  He asserted that it is not the proper venue for the determination of the issue.  He asserted that the best way of dealing with the circumstances is to apply for remedies in Country C to have the marriage declared invalid, then seek, on a fresh application, a declaration in the Australian courts.

12. The question of forum is to be answered on the basis of whether Australia is a clearly inappropriate forum[1], in the sense that conduct of the proceedings here are vexatious or oppressive.[2] 

    [1]Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 565.

    [2]Henry v Henry (1996) 185 CLR 571 at 588 per Dawson, Gaudron, McHugh and Gummow JJ

13. In seeking to establish that the matter ought to be heard in Country C, the respondent primarily relied upon assertions as to falsehoods contained in the applicant’s material (although the respondent accepted the essential factual matters regarding when each of the marriages took place), and to the assertion that it would be better heard in Country C.  He led no evidence as to any issue arising from the conduct of the proceedings in Australia that could be productive of injustice[3].  The respondent has established no factual basis sufficient to show that Australia is a clearly inappropriate forum for the determination of the validity of the marriage.

    [3]Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 554.

The parties first marriage in Country C

1. Part VA of the Marriage Act1961 deals with the recognition of foreign marriages.  Section 88C applies the part, relevantly, to

   (1)…every marriage solemnised, whether before or after the commencement of this Part, in a foreign country where:

   (a) under the local law, the marriage was, at the time when it was solemnised, recognised as valid;

2. The relevant circumstance for this case, that bring this marriage under the application of Part VA, is that the marriage was recognised under the local law of the foreign jurisdiction at the time that it was solemnised as being valid.  Annexures A and B of the applicant’s affidavit show registration of the marriage.  Section 88G sets out that such a document provides:

   prima facie evidence of the facts stated in the document and of the validity of the marriage to which the document relates. 

3. No evidence was led to suggest that the marriage was not accepted as valid under the law of Country C.  There is an inherent acceptance by virtue of the document at Annexures A and B that at the time of the entry of the marriage, or at least at the time of the registration of the marriage, it was recognised as being valid.  Whether it would have been recognised as valid had it been challenged is not a matter that was addressed.

4. Section 88D then sets out that such marriages will be recognised in Australia as being valid subject to the other operation of that section.  Section 88D(2)(a) sets out that

   A marriage to which this Part applies shall not be recognised as valid in accordance with subsection (1) if:

   (a)either of the parties was, at the time of the marriage, a party to a marriage with some other person and the last-mentioned marriage was, at that time, recognised in Australia as valid. 

5. In this case at the time of entering into the marriage in Country C, the respondent was validly married to Ms G in Australia.  Accordingly, the first marriage is not recognised as valid in Australia. 

6. Even if it were assumed that, because of the pre-existing marriage to Ms G the marriage was not recognised as valid in Country C, and so not brought within the operation of Part VA, that lack of validity under Country C law would lead to a conclusion of invalidity here, unless the marriage could be brought under the operation of s 88E(1).  The structure of Part VA is, in general terms, to provide for recognition of the validity of a marriage that is recognised as valid in the foreign country.  If it is not recognised as valid in that country, Part VA only provides for recognition in Australia pursuant to s 88E where the marriage would otherwise be recognised according to the principles of private international law.[4]  No evidence was led to suggest that the marriage would fall under that provision if it was considered invalid under Country C law.

   [4] See, for example, the decision of Penny J in Hooshmand and Ghasmezadegan (2000) FLC 93-044

7. That is, in either case, the marriage is invalid.  A declaration of invalidity recognises that the marriage is invalid under Australian law because it was never valid.  The circumstance of invalidity is one that stems from the moment of the marriage, given the pre-existing circumstance that the respondent was then married to another in a marriage recognised under Australian law.

8. A declaration of invalidity will issue.

The Australian marriage

1. The second marriage ceremony between the applicant and respondent occurred after the respondent was divorced from Ms G. It occurred after the marriage ceremony in Country C. Section 113 of the Marriage Act1961 prohibits (save for certain circumstances) parties undergoing a marriage ceremony under circumstances where they are already legally married to each other. 

2. Here having determined that the first marriage in Country C was invalid from the point it was purportedly entered into, it cannot be said that the parties were already legally married to each other despite the fact they had undergone a marriage ceremony together. 

3. This left it open for the parties to “go through a form or ceremony of marriage with each other” in Australia.  There is no reason to identify this second marriage between the parties as being invalid by virtue of either the previous marriage to Ms G or the previous marriage ceremony between the parties.

4. By an application filed in court on 30 November 2016 the applicant sought a divorce in relation to the Australian marriage.  The application was heard on 12 December 2016.  Both parties were legally represented at the hearing of the matter.  To the extent that the Rules require particular time frames for the service and listing of such applications, given the participation of both parties in the hearing and there being no identification of a procedural unfairness arising from the hearing of the matter within a shorter time frame, those Rules are dispensed with in order to ensure that the matter is dealt with in a timely manner as reasonable under the circumstances of the case.

5. The parties were married in 2008 at Suburb F in New South Wales, Australia.

6. The wife is an Australian citizen, domiciled in Australia, and has been normally resident in Australia for the past eight years leading up to the hearing.

7. The parties separated on or about February 2012.  The marriage has broken down irretrievably.

8. Proper arrangements have been made for the child of the relationship, H, born in 2008, by virtue of final orders made by Judge Kemp in the Federal Circuit Court on 27 January 2016.

9. A divorce order will be made.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 16 June 2017.

Associate: 

Date:  16 June 2017