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 & Imani has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALTOBELLI J:
These reasons for judgment explain the orders I have made today.
The issue before the Court was as to the validity of a marriage conducted between Mr Yves (“the Applicant”) and Ms Imani (“the Respondent”) in Country B in 2000 in circumstances where it is clear in the evidence, and I accept, that the Respondent was only 17 years old at the time. There is a consequential issue as to the validity of a marriage that was subsequently performed in this state. Finally, there is the application for divorce that was made by the Applicant.
The material before the Court involved the following:
(a)The Applicant’s Amended Application for Final Orders filed 24 December 2021;
(b)The Applicant’s Application in a Proceeding filed 7 December 2021;
(c)The Applicant’s affidavit filed 1 November 2021;
(d)The Applicant’s affidavit filed 7 December 2021; and
(e)The Applicant’s affidavit filed 5 January 2022.
By way of background, the Applicant is 46 years old. He was born in Country B. The Respondent is 38 years old. She too was born in Country B. The Applicant immigrated to Australia in 1994 and was granted Australian citizenship in 1997. In 2000, the parties married in Country B. The documents before the Court satisfy me as to the same. This was, in effect, a form of proxy marriage in the sense that the Applicant did not attend the ceremony but the documentation before the Court indicates it was, nonetheless, a valid marriage. Significantly, at the time, the Respondent was only 17 years of age. The legal difficulty is that under the Marriage Act 1961 (Cth) (“the Marriage Act”), the marriageable age in Australia is, and was at the relevant time, 18 years of age.
In 2002, the Respondent applied for a prospective marriage visa to enter Australia from Country B and she was granted the same in or around September 2002. In that month, she relocated to Australia and the Applicant and Respondent commenced living together. In December 2002, I note that the Applicant legally changed his name from Mr Imani to Mr Yves. In 2003, the parties conducted a second marriage ceremony in Sydney. I am satisfied from the evidence that that marriage, in fact, took place. It purportedly took place to satisfy a condition on the wife’s visa.
The precise circumstances under which the wedding was conducted despite the parties’ previous marriage in Country B is not entirely clear but ultimately does not affect the decision that I make. In September 2003, the parties separated on a final basis and the Respondent returned to Country B whilst the Applicant continued to reside in Australia. On 4 December 2004, the Applicant obtained a Divorce Order in Country B in relation to the Country B marriage. He did this through a power of attorney. I have seen the documents and I am satisfied that the documents that purport to be a Divorce Order, in fact, are. Of course, the divorce only related to the Country B marriage. I understand that the Applicant intends to marry again and it seems that that is what has precipitated the current application.
The relevant law is contained in the Marriage Act and I am satisfied that the following provisions govern the present application. Firstly, s 23B states, amongst other things, that a marriage is void if either of the parties is not of marriageable age. Section 88C explains that the relevant part of the Marriage Act applies to a marriage that was, under local law, recognised as valid at the time that it was solemnised. I note that consistent with the common law rules of private international law, the marriage, as it was celebrated in Country B, would as a general proposition and subject to statute which I will discuss below, be valid in Australia.
However, the provisions of s 88D and, arguably, s 88E of the Marriage Act, vary the common law rule by saying that, in effect, recognition of a foreign marriage does not apply if that marriage did not comply with what I would describe as some certain fundamental requisites under Australian law, one of which was that the parties had to be of marriageable age. Accordingly, the Country B marriage would not be considered and, indeed, is not considered a valid marriage under Australian law. I am satisfied that it is void in the circumstances.
The Applicant brings an application for divorce in circumstances where he wishes to remarry and indeed remarry on short notice. Normally, divorce applications would not come before a judge of Division 1 of the Federal Circuit and Family Court of Australia but I am satisfied that the other applications needed to come before me. Further, I am satisfied that, in the circumstances, the Applicant should have his divorce and that, indeed, in the rather unfortunate circumstances of this case, he should be free to marry without waiting the normal period of one month.
I otherwise accept the submissions made on behalf of the Applicant by his solicitor, Mr Shaw, in his case outline document, the contents of which are reproduced in Schedule A to these reasons for judgment. I accept that there was a juridical basis for making the orders sought and that it is appropriate, in the exercise of my discretion, to order that the Divorce Order that I have made take effect immediately.
I note the matter proceeded in the absence of the Respondent, but in circumstances where an order was made by the learned Judicial Registrar for service to be dispensed with on certain conditions. I am satisfied from the evidence that those conditions have been met and that the Applicant has, in fact, done all that he can reasonably do to notify the Respondent of the proceedings today. I otherwise dispense with compliance with any rule or regulation that would prevent this matter being dealt with in the present fashion.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli delivered on 12 January 2022. Associate:
Dated: 12 January 2022
SCHEDULE A
In the Federal Circuit and
Family Court of (P) SYC 8000/2021
Australia (Division 1)
at SYDNEY
Between
Mr Yves
Applicant Husband
And
Ms Imani
Respondent Wife
THE HONOURABLE JUSTICE ALTOBELLI
12 JANUARY 2022
HUSBAND’S CASE OUTLINE
A. SUMMARY OF PROCEEDINGS
1.These are proceedings relating to the validity of two marriages conducted between the parties firstly on … 2000 in Country B and secondly on … 2003 in Sydney.
B. DOCUMENTS RELIED UPON
2.The Applicant relies on the following documents:
a.Amended Initiating Application filed on 24 December 2021.
b.Affidavit of Mr Yves sworn and filed 5 January 2022.
c.Application in a Proceeding filed on 7 December 2021.
d.Affidavit of Mr Yves sworn and filed on 7 December 2021.
e.Affidavit of Mr Yves sworn on 29 October 2021 and filed on 1 November 2021.
C. ISSUES IN DISPUTE
3.Whether the marriage conducted on … 2000 in Country B is an invalid marriage due to the Applicant Husband being domiciled in Australia and the Respondent Wife only being 17 years of age at the time.
4.Whether the marriage conducted on ... 2003 in the state of New South Wales is a valid marriage.
D. BRIEF CHRONOLOGY
Date
Event
Ref
… 1975
Applicant Husband born in Country B.
… 1983
Respondent Wife born in Country B.
19 November
1994
Applicant Husband immigrates to Australia
11 April 1997
Applicant Husband granted Australian Citizenship
Subpoena pg. 63
… 2000
The parties marry in Country B (“the Country B marriage ceremony”) with marriage documents being produced in Country B.
The Applicant did not attend the ceremony but believes that it was a legal marriage in accordance with Country B law.
At the time of the Country B Marriage, the Applicant was domiciled in Australia and the Respondent Wife was only 17 years of Age.
Affidavit 1.11.2021
p. 7 - 8
19 September
2002
Wife’s application for Prospective Marriage (temporary) Visa lodged for entry to Australia from Country B.
Subpoena pg. 242-
245
19 November
2002
Wife’s application for Prospective Marriage (temporary) Visa granted by Department of Immigration and Multicultural and Indigenous Affairs (as it then known). Parties directed to enter in marriage after arrival to Australia and prior to 6 August 2003. 24 November
2002
The Respondent Wife relocates to Australia and the parties commence living together.
p. 10 Subpoena pg. 85
20 December
2002
The Applicant Husband legally changes his name from Mr Imani to Mr Yves.
Affidavit 1.11.2021
p. 3
… 2003
The parties conduct a second marriage ceremony in Sydney, New South Wales (“the New South Wales marriage ceremony”) with a marriage certificate being produced as required by the wife’s conditional visa.
The wedding was conducted despite the parties previously being married in Country B and without either of them obtaining a Divorce Order in relation to the Country B marriage.
Affidavit 1.11.2021
p. 12 -
13
September 2003
The parties separate on a final basis.
Affidavit 1.11.2021
p. 14
14 March 2004
The Respondent Wife returns to Country B while the Applicant Husband continues to reside in Australia.
Subpoena pg. 85
4 December
2004
The Applicant Husband obtains a Divorce Order in Country B in relation to the Country B marriage. The Applicant Husband did this through the use of a Power of Attorney while he remained in Australia.
The Divorce Order relates solely to the Country B marriage and did not dissolve the New South Wales marriage.
Affidavit 1.11.2021
p. 15 - 16
Early 2022
The Applicant Husband intends to marry his new partner.
E. OUTLINE OF SUBMISSIONS
Amended Application
5.The Applicant Husband initially sought that the New South Wales marriage be declared Void and a Nullity in his Initiating Application filed on 1 November 2021.
6.By way of an Amended Initiating Application filed on 24 December 2021, the Applicant Husband now seeks that the Country B Marriage be declared void and that the New South Wales marriage be recognised as valid in accordance with the Marriage Act 1961 (Cth).
7.As a result of the declarations sought by the Applicant Husband, he also seeks that a Divorce Order be granted in respect of the New South Wales marriage. The Applicant Husband also seeks an Order that the Divorce Order take immediate effect to allow him to marry his new partner in early 2022.
Validity of Marriages
8.It is submitted on behalf of the Applicant Husband that the Country B marriage is not a valid marriage pursuant to s. 88D(2)(b) of the Marriage Act which states that:
(2) 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;
(b)where one of the parties was, at the time of the marriage, domiciled in Australia--either of the parties was not of marriageable age within the meaning of Part II; (emphasis added).
9.Section 88D(2)(b) sets out a two-limb test for the Court to consider. The first element the Court must be satisfied of is that one of the parties was domiciled in Australia at the time of the marriage. The second element that must be satisfied is that either of the parties was not of marriageable age at the time of the marriage.
10.Turning to the issue of whether one party was domiciled in Australia at the time of the Country B marriage, the Applicant Husband has provided sworn evidence that he immigrated to Australia in 1998.1 The Applicant was granted Australian Citizenship on 11 April 1997. It is submitted that by immigrating to Australia and remaining ever since, the Applicant Husband was clearly domiciled in Australia at the time of the Country B marriage in 2000.
11.The respondent was 17 years and 2 months old at the time of the Country B Marriage.
12.As the Applicant Husband was domiciled in Australia at the time, the Country B marriage is not valid as the Respondent Wife was underage in accordance with s. 12 of the Marriage Act which confirms that the marriageable age in Australia is 18 years of age. Such a situation was considered by McClelland J in Eldaleh:
As a result of the applicant being domiciled in Australia, s 88D(2)(b) of the Marriage Act applies and the marriage is not valid if either of the parties was not of marriageable age, that is 18 years of age.2
13.Accordingly, it is submitted on behalf of the Applicant Husband that the Country B marriage is not valid and that the Court ought to declare as such.
14.If the Court finds that the Country B marriage was not a valid marriage in accordance with the Marriage Act it is submitted that the second marriage that occurred in the state of New South Wales on ... 2003 should be declared a valid marriage. To this end, this marriage occurred while both parties were of marriageable age and was subject to all the usual conditions normally required for a marriage to be valid in the state of New South Wales.
Divorce
15.In the event the Court declares that the New South Wales marriage is a valid marriage, the Applicant Husband seeks a Divorce Order in respect of that marriage.
16.With respect to the requirements for the Court to grant a Divorce Order as set out in s. 48 of the Family Law Act, the Applicant Husband submits the following:
a.The Court can be confident that the marriage has broken down irretrievably. The parties have not seen or interacted with each other since 2004 following the Respondent Wife returning to Country B. It would also seem apparent that both parties considered their relationship had irretrievably broken down as a Divorce Order was made in 2004 in respect of the Country B Marriage.
b.The parties have not lived together for approximately 18 years, well beyond the required 12-month period.
c.The Court can be confident that there is no reasonable likelihood of cohabitation being resumed. The Applicant Husband has no knowledge of the whereabouts of Respondent Wife and intends to marry his new partner once these proceedings are finalised.
17.Importantly in these proceedings, the Court is not prevented from making a Divorce Order pursuant to s. 52 of the Family Law Act as the Applicant Husband filed an Amended Initiating Application on 24 December 2021 whereby he no longer seeks a decree of Nullity.
18.It is also submitted that Court can make the Divorce Order as set out in the Applicant Husband’s Amended Initiating Application despite it not being the approved form as set out in r. 2.01 of the Federal Circuit and Family Court Rules. The Court may, at its discretion and in accordance with r. 1.31(1) of the Federal Circuit and Family Court Rules, dispense with compliance with any rule if it is in the interest of justice to do so (emphasis added).
19.In consideration of whether to dispense with compliance of r. 2.01, the Applicant Husband submits that it is in the interests of justice to dispense with the compliance for the following reasons:
a.The Respondent Wife will not be caused an injustice if the Divorce Order is made as sought. The parties were divorced in Country B in 2004 and it is likely that the Respondent Wife has considered herself divorced since that date. The formalisation of such a belief in Australia will have no impact on her given she has not returned to Australia since 2004.
b.The Applicant Husband has done everything required of him, and more, to inform the Respondent Wife that an application in respect of the ending of their marriage was on foot. This includes attempting to provide her a translated version of his Affidavit sworn 28 October 2021 setting out his assertion in respect of the marriages.
c.The Court, nor the interests of justice, would be aided by having the Applicant Husband incur the additional time and expense associated with filing an Application for Divorce, particularly in circumstances where the Court has all the required information currently before it, albeit in a different form.
20.In all the circumstances, it is submitted that the Court can and should make a Divorce Order in this matter and as sought by the Applicant Husband.
21.If the Court is to make a Divorce Order as sought by the Applicant Husband, the Applicant Husband also seeks that the Court uses its discretion under s. 55(2)(b) of the Family Law Act to allow the Divorce Order to take immediate effect.
22.For the Court to make such an Order, the Court needs to be satisfied that there are special circumstances justifying it. It is submitted that such circumstances exist and are as follows:
a.The Applicant Husband has provided evidence that he wishes to marry his new partner in early 2022. If the Court were to maintain the usual one-month and one-day timeframe, the Wedding will need to be pushed back until at least 13 February 2022.
b.The parties have not been in contact with each other for a significant period, being approximately 18 years.
c.Neither party would be negatively impacted by the Court making such an Order. It is submitted that the Respondent Wife has likely considered herself divorced from the Applicant Husband in 2004 and has been living her life as such ever since.
Service
23.The Applicant Husband also seeks an Order that service of his Amended Initiating Application be dispensed with.
24.Rule 2.34(1)(b) of the Federal Circuit and Family Court Rules allows the Court to dispense with the need for service when having regarded to the factors in r. 2.34(2), noting that r. 2.34(2) is not a strict list of considerations that the Court must consider but that it may consider (emphasis added).
25.The Applicant Husband particularly relies on r. 2.34(2)(b) and submits that he has taken all reasonable steps to bring these proceedings to the notice of the Respondent Wife. The Applicant Husband has complied with the Orders made by this Honourable Court on 9 December 2021. Additionally, the Husband also took the additional step of attempting to email the Respondent Wife using an email address that was found in material produced by the Department of Home Affairs.
26.While the Orders and documents that the Applicant Husband attempted to serve related to the original Nullity Application, the Applicant Husband submits that he has done all he can to bring these proceedings to the Respondent Wife’s attention.
27.The Applicant Husband also submits that the Court should consider the nature of these proceedings and in particular the fact that the Respondent Wife’s last known address is in Country B and that this has caused significant difficulties with service.
28.Considering all the submissions contained herein, the Applicant Husband seeks the Orders sought in his Amended Initiating Application.
F. ORDERS SOUGHT
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.
Affidavit of Mr Yves sworn 29 October 2021, p. 2.
Eldaleh [2016] FamCA 1103 at [8].
Anthony Shaw
Associate
Dorter Family Lawyers and Mediators
5 January 2022
0