AZMI & SHINDE

[2014] FamCA 824

FAMILY COURT OF AUSTRALIA

AZMI & SHINDE [2014] FamCA 824

FAMILY LAW – NULLITY – where the applicant seeks a decree of nullity – where the respondent does not participate in the proceedings – where the applicant bears the onus to establish relevant grounds – where the applicant alleges duress and fraud – where the applicant alleges she did not understand the nature of the ceremony – where there are inconsistencies in the evidence given by the applicant – where no decree of nullity is made.

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

Allesch & Maunz (2000) 203 CLR 172
Cooper (falsely called Crane) v Crane [1891] P 369
Hosking & Hosking (1995) FLC 92-579
In the Marriage of S (1980) FLC 19-820
In the Marriage of Teves & Campomayor (1995) FLC 92-578
Kennedy & Smith [2003] FamCA 136
Scott (falsely called Sebright) v Sebright (1886) 12 PD 21

APPLICANT: Ms Azmi

RESPONDENT: Mr Shinde

FILE NUMBER: BRC 7697 of 2013

DATE DELIVERED: 12 September 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 12 September 2014

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: No appearance

Orders

1. The Application for Nullity filed by the Applicant on 10 September 2013 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Azmi & Shinde 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 BRISBANE

FILE NUMBER: BRC 7697 of 2013

Ms Azmi

Applicant

And

Mr Shinde

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 10 September 2013, the Applicant filed an Application seeking a decree of nullity in relation to marriage solemnised in Brisbane on … January 2009.  There is no appearance by the Respondent.  He has filed no material in response to the Application.  Following attempts at service, Registrar Stoneham made an Order on 14 April 2014 which provided that, by way of substituted service, the Applicant serve documents on the Respondent by emailing them or having them emailed to his last known email address.

2. The material makes it apparent that this Order was made in the context of the Applicant deposing to her belief that the Respondent had been removed from the Commonwealth of Australia by officials of the Department of Immigration, as a consequence of a failure to comply with visa requirements.  The contents of an affidavit filed by a process server also further indicated that the Respondent had returned to live outside of Australia.

3. The Applicant filed an affidavit of service on 29 July 2014. It contains evidence to the effect that the relevant documents were forwarded to the last known email address of the Respondent. 

4. On the evidence before me, I accept that the Applicant has complied with the terms of the Order made by Registrar Stoneham on 14 April 2014. 

5. It is clear that all that authority requires is for a party to be afforded adequate notice of proceedings and an opportunity to appear and be heard in relation to any application in which orders are sought which might effect that person: see Allesch & Maunz[1].  I am satisfied that the Respondent has been afforded such opportunity and I propose to deal with the application in his absence. 

   [1] (2000) 203 CLR 172

6. The Applicant was born in August 1990 in Country B.  She came to live in Australia in 1993 and became an Australian citizen in 1996.  The Applicant and Respondent met in Brisbane in 2008.  Her affidavit material contains evidence as to the manner in which they met.  It appears to me to follow from the contents of the affidavit material, that the Respondent and Applicant formed a relationship of sorts - the Applicant engaged in conduct designed to keep the existence of this relationship a secret from her parents and friends at the time.

7. The evidence also establishes that in about July 2008, the Respondent sought to have the Applicant sign a Notice of Intention to Marry and took her to meet with a Ms C for that purpose.  There is correspondence from Ms C, exhibited to the Applicant’s affidavit filed 19 February 2014, in which Ms C expresses her suspicions that the Applicant was possibly being subjected to psychological duress by the Respondent.  Ms C, at that time, declined to continue to provide any assistance to the parties in relation to any proposed marriage.

8. The evidence establishes that the Applicant’s parents became concerned about her behaviour, which is described as secretive, and, consequently, she left Australia to study overseas in October 2008.  The Applicant returned to Australia on 10 January 2009.  During the period of time between October 2008 and 10 January 2009 there was communication between the Applicant and the Respondent who, at that time, was in Australia or at least not where she was living.

9. As I have said, the Applicant returned to Australia on 10 January 2009 and the parties married in Brisbane on … January 2009. 

10. Section 51 of the Family Law Act provides that:

    An application under this Act for a decree of nullity of marriage shall be based on the ground that the marriage is void.

11. Despite this, the Family Law Act itself provides no definition or identification of those circumstances in which a marriage may be considered void.  However, reference to the Marriage Act1961 (Cth) provides assistance. Relevantly, s 23B(1) of that Act provides that a marriage is void in certain specified circumstances. Relevant to this application are those matters contained in s 23B(1)(d)(i) and perhaps, in paragraph (iii).

12. It is her contention that her consent to the marriage on … January 2009 was not a real consent because “it was obtained by duress or fraud” and, perhaps inferentially from her material, that she did not understand the nature and effect of the marriage ceremony - although I immediately note that there is nothing whatsoever in the material that would suggest the Applicant was mentally incapable of understanding the same. 

13. The relevant meaning of duress for the purpose of proceedings such as this has been discussed in previous decisions of the Court.

14. In the Marriage of S (1980) FLC 19-820, Watson SJ said at page 75179:

    If there are circumstances which, taken together, lead to the conclusion that because of the pressure a particular person has not exercised a voluntary consent to a marriage, that consent is vitiated by duress and is not a real consent.  This is so howsoever the oppression arises and irrespective of the motivation or propriety of any person solely or partially responsible for the oppression.

15. Further discussion in relation to the meaning to be attributed to the word “duress” in circumstances such as this may be found in the judgment of Justice Lindenmayer in In the Marriage of Teves and Campomayor (1995) FLC 92-578.  His Honour said, at page 81737, that although it does not necessarily need to involve a direct threat of physical violence so long as there is sufficient oppression from whatever source acting upon a party to vitiate the reality of their consent.

16. In Campomayor, Lindenmayer J made clear the necessity for there to be some proximity between the alleged duress and the marriage ceremony itself. His Honour said at 81739 as follows:

    It is duress at the time of the marriage ceremony that is critical.  Clearly, this can be induced by events prior to it but in the end it is for an applicant to show that at the time he or she gave consent at the ceremony, some overbearing force was operating.

17. It is clear that it is duress at the time of the marriage ceremony which is critical.  The standard of proof in this case is that of the balance of probabilities. 

18. Helpful reference can be made to Scott (falsely called Sebright) v Sebright (1886) 12 PD 21 at 24, where Justice Butt said:

    Public policy requires that marriages should not be lightly just set aside and there is, in some cases, the strongest temptation to parties more immediately interested to act in collusion in obtaining a dissolution of the marriage tie.  These reasons necessitate great care and circumspection on the part of the tribunal but they in no way alter the principle or the grounds on which this, like any other contract, may be avoided.  Whenever, from natural weakness of intellect or from fear, whether reasonably entertained or not, either party is actually in a state of mental incompetence to resist pressure improperly brought to bear, there is no more consent than in the case of a person of stronger intellect and more robust courage yielding to a more serious danger.

19. It is also clear from authorities such as Cooper (falsely called Crane) v Crane [1891] P 369, at 375-377 that very clear and cogent evidence must be given before a presumption of consent can be rebutted and a marriage annulled if, as here, an adult has gone through a public ceremony giving all the indications of consent.

20. As I understand the material relied upon by the Applicant and of the submissions she made on her own behalf, it is that I should be persuaded that, at the time of the marriage ceremony, she signed the requisite documents under duress. 

21. In part, she relies upon the evidence of the previous engagement with, and attendance on, Ms C. She submits that, given Ms C’s concern in about July 2008 as to the likely influence on her by the Respondent, I should infer that the same influence existed on … January 2009.

22. In addition, the Applicant relies upon the contents of her affidavit, and paragraph 6 in particular of that affidavit, filed by leave on 12 September 2014 wherein she gives evidence as to what occurred on … January 2009.

23. Relevantly, and I summarise, the Applicant’s evidence is that she did not realise on the day that she was going to participate in a marriage ceremony, that the Respondent took her to the Registry and that, when they were outside, he took a moment to stop and before entering the ceremony room:

    He spoke to me in his Indian language, “Do as I say and just sign the documents, otherwise I will kill you with that [Item D] (sword-like thing  he had shown at home) and then myself.”

24. The Applicant says that, after this comment, she went into shock - what happened thereafter was that she signed the requisite documents but did so in the circumstance of fear or terror as to what would happen if she did not sign.

25. The difficulty, it seems to me, for the Applicant who bears the onus in this application is that, despite an earlier affidavit having been prepared by her and filed in the Court on 19 February 2014 referring to the circumstances of the day of the marriage, there is no particular reference in that earlier document to the very specific evidence contained within the most recent affidavit.  It could not be said that the Applicant did not turn her mind during the course of the preparation of the earlier affidavit to setting out what happened on the day of the marriage.  So much is apparent from paragraph 5 of her affidavit.  The absence of reference in an earlier affidavit to such a significant asserted event, happening on the day of the marriage ceremony, causes me concern. 

26. It causes me concern because both of the affidavits - that filed on 19 February 2014 and that filed by leave today - were prepared by the Applicant herself. 

27. It seems to me that the contents of the Applicant’s affidavit material supports a conclusion that it is more likely than not, as she says in her affidavit filed in February, that the Respondent and she married on … January 2009 with a promise the Respondent would convert to Islam.  Her affidavit material is resplendent with evidence about the promises she had received to that effect from the Respondent prior to the marriage ceremony. 

28. Because of the concerns as to differences in account contained within the Applicant’s affidavit material, I am not persuaded to conclude that she was under duress at the time of the marriage ceremony.  Insofar as the application is based upon fraud, regard should properly be had to the decision of the Full Court of this Court in Kennedy & Smith [2003] FamCA 136 and the references contained in that judgment to Hosking & Hosking (1995) FLC 92-579 - I refer particularly to pages 81,744 to 81,750 and the conclusion set out at page 81,750 in particular, and rely upon and adopt those statements.

29. The effect of the authorities to which I have referred is that, in the circumstances of an application such as this, fraud needs to relate to the identity of the parties and the nature of the ceremony. 

30. The evidence establishes that the Applicant knew who the Respondent was:  at its highest, she was not fully aware of his age (there being, I think, a difference of about 12 months or thereabouts between what he had told her and his actual birth date). She was aware he was not of her faith and that he had made promises to her to convert to her faith after they were married. 

31. I am not persuaded that the Applicant has discharged the onus of establishing that she was unaware that what she was participating in was a marriage ceremony.  I consider that the evidence, in fact, establishes it is more likely than not that the parties entered into a marriage ceremony on the Applicant’s acceptance of promises made by the Respondent to which I have already adverted. 

32. I am not persuaded there was any misunderstanding or lack of appreciation as to the nature of the ceremony conducted on … January 2009. It follows that I am not persuaded in relation to the ground of fraud. For those reasons given shortly, I dismiss the Application filed 10 September 2013 for a decree of nullity of the marriage solemnised in Brisbane on … January 2009.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 12 September 2014.

Associate:     

Date:              12 September 2014