YOON & LAU - [2020] FamCA 281

FAMILY COURT OF AUSTRALIA

YOON & LAU

[2020] FamCA 281

FAMILY LAW – NULLITY – undefended – where the parties were lawfully married in China – where the parties subsequently entered into a second marriage upon their relocation to Australia – where the applicant now seeks that the second marriage be declared null and void – where s 23B of the Marriage Act 1961 (Cth) does not specifically provide for such a circumstance – consideration of s 113(1)(a) – order that the second marriage between the parties be declared null and void.

Family Law Act 1975 (Cth) s 51
Marriage Act 1961 (Cth) ss 23, 23B, 113

Zau & Huang [2015] FamCA 873

APPLICANT:

Ms Yoon

RESPONDENT:

Mr Lau

FILE NUMBER:

MLC

13330

2019

DATE DELIVERED:

11 March 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

11 March 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Vstar Lawyers & Consultants, Mr Mak

THE RESPONDENT:

No appearance

Orders

That the marriage entered into between the applicant Ms Yoon and the respondent, Mr Lau at Suburb B on … May 2019 is declared null and void.
All extant applications be otherwise dismissed.

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 Yoon & Lau 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 MELBOURNE

FILE NUMBER: MLC 13330 of 2019

Ms Yoon

Applicant

And

Mr Lau

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

This matter concerns an application for a decree of nullity of marriage in relation to the marriage between Ms Yoon, the applicant and Mr Lau, the respondent which was solemnised in Melbourne on … May 2019.
The parties, at that time, had already entered into a marriage in China on … February 2019. The translated extract of the marriage certificate is annexed to the applicant’s Initiating Application filed 25 November 2019. Following the parties’ first marriage in China, they moved to Australia and it was upon their relocation to Australia that they entered into a second marriage in Suburb B on … May 2019.
Pursuant to her Initiating Application, the applicant now seeks that the second marriage be declared void and that a decree of nullity be granted. The application is supported by an affidavit of the applicant filed the same date. In addition, a further affidavit was sworn and filed by the applicant on 20 December 2019.
The matter came before the Court on 15 January 2020. That day, application was made to Registrar Mestrovic for orders dispensing with service. Orders…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: YOON & LAU [2020] FamCA 281
Case: [2020] FamCA 281
Decision Date: 11 March 2020

CaseChat Overview and Summary

In the matter of *Yoon & Lau*, heard before Johns J of the Federal Circuit and Family Court of Australia, the applicant, Ms Yoon, sought a declaration that her marriage to the respondent, Mr Lau, was null and void. The dispute centred on the validity of the marriage ceremony that took place in May 2019.

The primary legal issue before the court was whether the marriage between Ms Yoon and Mr Lau was validly solemnised according to Australian law. This required the court to consider the requirements for a valid marriage under the *Marriage Act 1961* (Cth) and whether those requirements had been met in the circumstances of this particular union.

Johns J found that the marriage was not validly solemnised. The reasoning applied by the court, though not detailed in the provided text, would have involved an assessment of the evidence presented by the parties against the statutory requirements for marriage. The court ultimately declared the marriage null and void. Consequently, all extant applications related to the marriage were dismissed.

Orders

Orders of the court

That the marriage entered into between the applicant Ms Yoon and the respondent, Mr Lau at Suburb B on … May 2019 is declared null and void.

All extant applications be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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