Yves & Imani - [2022] FedCFamC1F 8

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Yves & Imani [2022] FedCFamC1F 8

File number(s): SYC 8000 of 2021

Judgment of: ALTOBELLI J

Date of judgment: 12 January 2022

Catchwords:
FAMILY LAW – NULLITY – Undefended hearing – Where Applicant sought declaration of nullity in circumstances where Respondent was not of marriageable age at the time of their first marriage – Where Applicant has done all that is reasonably necessary to notify Respondent of proceedings – Declaration of nullity made.

FAMILY LAW – DIVORCE – Where Applicant sought Divorce Order in relation to the second marriage between the parties – Divorce Order made with immediate effect.

Legislation: Marriage Act 1961 (Cth) ss 23B, 88C, 88D, 88E

Division: Division 1 First Instance

Number of paragraphs: 11

Date of hearing: 12 January 2022

Place: Sydney (via videoconference)

Solicitor for the Applicant: Mr Shaw of Dorter Family Lawyers & Mediators

The Respondent: The Respondent did not appear
ORDERS

SYC 8000 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR YVES

Applicant

AND:
MS IMANI

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

12 JANUARY 2022

THE COURT ORDERS THAT:
1.Orders be made in accordance with the document entitled “Orders Sought”, marked “A”, initialled, and dated today’s date, the contents of which are set out herein:
“1. That pursuant to s. 113 of the Family Law Act the Court make the following
Declarations:
(a)That the marriage between the Applicant and the Respondent which occurred on ... 2000 in Country B be declared void.
(b)That the marriage between the Applicant and the Respondent which occurred on ... 2003 in the State of New South Wales be recognised as valid in Australia under Part VA of the Marriage Act 1961 (Cth).

2.That a Divorce Order be made in respect of the marriage between the Applicant and the Respondent which occurred on ... 2003 in the State of New South Wales.
3.That pursuant to s. 55(2)(b) of the Family Law Act the Divorce Order made pursuant to Order 2 take immediate effect.
4.That pursuant to r. 2.34(1)(b) of the Federal Circuit and Family Court Rules service of this application be dispensed with.”

2.Compliance with any other rule or regulation preventing the operation of these orders be dispensed with.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Yves…

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.

Continue reading Yves & Imani

Details

AGLC: Yves & Imani [2022] FedCFamC1F 8
Case: [2022] FedCFamC1F 8
Decision Date

CaseChat Overview and Summary

This case involved an application by Mr Yves for a declaration that his marriage to Ms Imani, which took place in Country B in 2000, was void. The Applicant also sought a declaration that a subsequent marriage between the parties in New South Wales in 2003 was valid and enforceable under Australian law. Finally, the Applicant sought a Divorce Order in respect of the second marriage. The matter was heard by Justice Altobelli in the Federal Circuit and Family Court of Australia Division 1, who was satisfied that the first marriage was void for the reasons that the Respondent was not of marriageable age at the time of the marriage and that the second marriage was valid. Justice Altobelli further concluded that the Applicant was entitled to a Divorce Order in respect of the second marriage, which was to take effect immediately.

The legal issues before the Court were whether the first marriage conducted in Country B was invalid due to the Applicant being domiciled in Australia and the Respondent being under the marriageable age at the time of the marriage, and whether the second marriage conducted in New South Wales was a valid marriage. The Court was also required to determine whether a Divorce Order should be granted in respect of the second marriage and whether service of the application should be dispensed with. Justice Altobelli considered the evidence and submissions presented by the Applicant and concluded that the first marriage was invalid, the second marriage was valid, and that the Applicant was entitled to a Divorce Order in respect of the second marriage, which was to take effect immediately. The Court was also satisfied that the Applicant had done all that he could reasonably do to notify the Respondent of the proceedings and that dispensing with service was appropriate in the circumstances.

Orders