Zau & Huang

[2015] FamCA 873

FAMILY COURT OF AUSTRALIA

ZAU & HUANG [2015] FamCA 873

FAMILY LAW – NULLITY – where a declaration of nullity is sought – where the parties were married in China – where the parties underwent a second marriage ceremony in Australia – where the parties sought a divorce order in China and it was granted – where consideration is given to circumstances in which a marriage is found it be void – where it is found that the Australian marriage is void – where the matter had been adjourned for the purpose of proper service and certified Chinese translation of documents.

Family Law Act 1975 (Cth) ss 51, 102
Marriage Act 1961 (Cth) ss 23, 23B, 88C, 88D, 88G, 113

In the marriage of Kapadia (1991) 103 FLR 470

APPLICANT: Mr Zau

RESPONDENT: Ms Huang

INTERVENOR:

FILE NUMBER: ADC 2033 of 2015

DATE DELIVERED: 13 October 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 13 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Konieczka

SOLICITOR FOR THE APPLICANT: M K Legal & Migration

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the marriage between Mr Zau and Ms Huang solemnised on … 2014, be declared null and void.

2. That the following documents be Exhibit “1” in the proceedings:

   (a)       letter to the wife dated 17 July 2015;

   (b)       affidavit of husband filed 9 June 2015; and

   (c)order of this Court dated 26 August 2015, together with Chinese translations.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zau & Huang has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2033 of 2015

Mr Zau

Applicant

And

Ms Huang

Respondent

REASONS FOR JUDGMENT

1. By way of Initiating Application filed 9 June 2015, Mr Zau, the applicant husband, seeks an order that the marriage between Mr Zau and Ms Huang solemnised in early 2015 be declared invalid and nullified.  In effect, what is sought by the applicant husband is a declaration of nullity.

2. The circumstances and background to the application are in some respects unusual and create some interesting technicalities in terms of whether in the circumstances as presented by the applicant husband a declaration of nullity can be given.  As I have indicated to the husband’s counsel, I propose to make the declaration as sought, but because of the interesting factual matrix which underpins the application, it is of some value that reasons be given.

3. The husband was born in 1986 in a province in China.  As at the date of the application, he is some 29 years of age.  He lives and works in Adelaide and has employment.  He came to Australia in 2001 by way of a Higher Education Student Visa in order to study.  He gained permanent residency in late 2008 and now presents to the Court as an Australian citizen, that having been conferred upon him…