Breust and Devine - [2016] FamCA 892

FAMILY COURT OF AUSTRALIA

BREUST & DEVINE

[2016] FamCA 892

FAMILY LAW – Nullity – undefended application for decree of nullity of marriage on the ground that marriage is void – where applicant was mistaken as to the nature of the ceremony – where applicant believed she was participating in a “promise night” and relationship registration– where applicant lacked English proficiency and the relevant documents and statements of the marriage celebrant were not interpreted for her – marriage is void – application granted.

Family Law Act 1975 (Cth), s 51
Marriage Act 1961 (Cth), s 23B(1)(d)(ii)

Rabab & Rashad [2009] FamCA 69
APPLICANT:	Mr Breust

RESPONDENT:

Ms Devine

FILE NUMBER:

MLC

4168

2016

DATE DELIVERED:

24 October 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

7 September 2016

REPRESENTATION

SOLICITOR ADVOCATE FOR THE APPLICANT:

Mr Zora

SOLICITOR FOR THE APPLICANT:

Atlas Legal

THE RESPONDENT:

No appearance

Orders

The applicant be granted leave to proceed on an undefended basis.
Pursuant to section 51 of the Family Law Act 1975 (Cth), I pronounce a decree of nullity of the marriage solemnized on … 2015 at Suburb A in the State of Victoria between the applicant referred to in the marriage certificate as MR BREUST and the respondent referred to in the marriage certificate as MS DEVINE on the ground that the marriage is void because the consent of the applicant was not a real consent because she was mistaken as to the nature of the ceremony performed.
All extant applications be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Breust & Devine 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 MELBOURNE

FILE NUMBER: MLC 4168 of 2016

Mr Breust
Applicant

And

Ms Devine

Respondent

REASONS FOR JUDGMENT

The applicant seeks a decree of nullity of marriage on the ground that the marriage between herself and the respondent is void because she was mistaken as to the nature of the ceremony in which she engaged and was not aware at the time of the marriage that she was marrying the respondent.

Application to proceed on an undefended basis

The respondent did not appear at the hearing and has not filed any material in response to the application. The applicant sought to proceed with her application on an undefended basis. The applicant filed an Affidavit of Service on 5 July 2016 indicating that the respondent had been handed to him by way of service the Initiating Application, the applicant’s affidavit sworn 3 May 2016, a copy of the marriage certificate and a court brochure. The respondent received these documents personally when he attended upon the office of the applicant’s solicitor to collect them and, according to the Affidavit of Service, was not comfortable providing his current residential address for service.
When this matter was first listed before the Court on 8 July 2016, the respondent did not appear and the Registrar ordered that the applicant notify the respondent of the adjourned hearing date via text message and provide a copy of the orders of that day to the respondent via email. Those orders required the respondent to appear and/or be represented on the adjourned hearing date.
I granted leave on the day of the final hearing for the applicant’s solicitor to file an affidavit confirming compliance with the orders of the Registrar concerning service. The notice by text message was sent on 8 July 2016 and the orders dated 8 July 2016 were emailed to the respondent on 12 July 2016.
I was satisfied that the Initiating Application and the applicant’s supporting affidavit were served upon the respondent when he attended upon the office of the applicant’s solicitor to be served, and then being notified that he was ordered to appear and or be represented on the adjourned date that the respondent had sufficient notice of the application. I was satisfied that he had been notified of the hearing date and I was accordingly satisfied that the respondent had an opportunity to participate in the proceedings but elected not to do so. I was comfortably satisfied that he had been afforded natural justice, and determined to hear the application in his absence.

The relevant law

Section 51 of the Family Law Act 1975 (Cth) (“the Family Law Act”) provides that an application for a decree of nullity of marriage shall be based on the ground that the marriage is void.
The onus is on the applicant to establish, on the balance of probabilities, that the marriage is void pursuant to one of the grounds set out in s 23B(1) of the Marriage Act 1961 (Cth) (“the Marriage Act”).
Under s 23B(1)(d)(ii) of the Marriage Act, a marriage is void when the consent of either of the parties is not a real consent because that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed.
The applicant did not ultimately argue in this case that her consent was not real because it was obtained by duress or fraud as per s 23B(1)(d)(i), instead focusing on the mistake ground at s 23B(1)(d)(ii).

Evidence

Because the respondent elected not to participate in these proceedings, I rely upon the unchallenged evidence of the applicant. The applicant gave evidence by way of affidavit and oral evidence on the day of the final hearing. The applicant deposed that she is “unable to read, write or speak English” and was assisted in the preparation of her affidavit by her solicitor and an interpreter. The applicant gave oral evidence with the assistance of an interpreter. The applicant gave evidence that she is part of the Country C community in Melbourne and that she lacked English proficiency because, having migrated to Australia from Country C in 2009, she had never undertaken a course to learn to speak English, had focused on providing care to her mother and had primarily socialised within non-English-speaking circles.
The applicant is aged 35 and the respondent is aged 41 years.
The applicant deposed at paragraph 6 of her affidavit that the parties met in February 2015 through family friends when the respondent was “in Australia on a temporary visa.” The applicant deposed that they commenced a friendship shortly thereafter, and would communicate by electronic means, mainly through social media.
The applicant deposed at paragraph 8 of her affidavit that after becoming “closer, in accordance with our cultural customs we decided to undergo a promise night.” The applicant deposed as follows at paragraph 8:
(a)A promise night is when the guy promises the girl and her family that he is serious about commencing a relationship, and that he has a genuine intention of becoming married.
(b)After a promise night, it is then seen to be appropriate for the couple to go out to diner[sic], parties and other events as a couple.
The applicant deposed at paragraph 9 of her affidavit that the respondent advised her that he was in Australia “on a temporary visa and did not have work entitlements; he told me that if we got our relationship registered then he would be able to work, and it would assist him to obtain a permanent residence[sic].”
The respondent deposed at paragraph 9 to having been surprised by the concept of registering a relationship, but noted that at the time, the parties were “not in a good financial position, so being able to work would greatly assist.”
The applicant deposed at paragraph 10:
[In early] 2015 the respondent and I with very close family member[sic], ten or so, attended a house in [Suburb A]
(a)I was told by the respondent that this was the manner in which to register a relationship
(b)The respondent told me that the person, [Mr B] (the marriage celebrant) was able to register the relationship
(c)I was wearing a semi-formal dress, nothing fancy and the respondent was in a basic suite[sic].
(d)[Mr B] said some things, I did not understand anything as I could not speak English, there was no interpreter present
In oral evidence, the applicant explained that her sister and the respondent’s sister were supposed to be assisting and translating for her but their English “is not good” and they essentially coached her about what to do without explaining anything. She deposed that after 5-10 minutes the parties were given a piece of paper to sign and that the respondent’s sister and the applicant’s sister sighted the signatures and also signed.
The applicant deposed that the parties were in a hurry because they were “running late for a baptism party of a family friend” and they all left immediately. She deposed that after the baptism party the respondent “dropped me off at my parent’s house and he went home.”
In oral evidence, the applicant was questioned about the circumstances surrounding the signing of the requisite Notice of Intention to Marry. She gave evidence that she recalled meeting with Mr B in Suburb A to sign a document, but she believed this signature was for the making of an appointment for the subsequent registration. She said that there was no interpreter present when she signed the Notice.
The applicant deposed that, for the three or four weeks following the above ceremony, she and the respondent went out for dinner and attended celebrations together “as boyfriend/girlfriend.” She deposed that they never lived together for any period of time, never became physical with each other beyond kissing on the lips, and that the marriage was never consummated.
The applicant deposed that she and the respondent never considered themselves to have been married, and that they discussed potential plans to marry but that the relationship gradually broke down.
The applicant deposed that in mid-April 2015, the parties decided to end their relationship. Subsequently, with the assistance of a friend, the applicant contacted Mr B to inform him that the parties had separated on a final basis and that she wished to cancel what she believed to be the registration of their relationship. At this stage, Mr B, who was, it transpired, the celebrant of the parties’ marriage, advised that the parties were married and that the applicant would need to wait a year before she could obtain a divorce. The applicant deposed at paragraph 12 of her affidavit to being:
… in a state of shock, I could not believe that I was married; I could not comprehend how I became married … My friend told the celebrant that I was not in any way aware that I was legally married to the respondent; however, the celebrant advised that he could not do anything.
The applicant gave evidence that, had she been aware that the ceremony was one of marriage, she would not have agreed. She gave evidence that it is customary in the culture to which she belongs, to have very large weddings with between “300- 600 people” and a large celebration, which did not occur in this case. She deposed at paragraph 15 that “at no time did anybody in my family think that I was married.” In oral evidence she stated that within her culture, she would certainly have expected to be married in a church setting, and she believed she could not be married outside a church.
The applicant deposed to having been shocked and depressed in the weeks following this discovery. The applicant waited the twelve months advised by the celebrant before seeking legal assistance to obtain a divorce, at which time she was advised that she could seek a decree of nullity.
The applicant was unaware of the respondent’s motives and indicated that she did not wish to give evidence speculating upon his motives.

Submissions

The solicitor for the applicant submitted that this case was similar in substance to that of Rabab & Rashad [2009] FamCA 69 (“Rabab”), in which Mushin J accepted that the wife was mistaken as to the nature of the ceremony performed, and accordingly it was appropriate to pronounce a decree of nullity. In that case, three days after the husband’s arrival in Australia, the parties’ imam attended the wife’s home with a “bundle of papers” and subsequently the parties signed a certificate of marriage in his presence. The wife deposed that neither of the parties were aware of the fact that they were being married, stating that it was customary in their community to undergo a formal commitment ceremony before a marriage and she believed, and was led to believe, that she was simply signing paperwork in preparation for those two ceremonies.
It was submitted that the underlying reasons for the applicant’s mistake here as to the nature of the ceremony were similar, as were the circumstances, which involved a small, quick ceremony in a residential home with sibling witnesses. The solicitor for the applicant in the case before me argued that the applicant’s case in relation to mistake as to the nature of the ceremony was perhaps even clearer than in Rabab, as the applicant’s lack of English skills made it even more difficult for her to discern the nature of the ceremony, whereas in Rabab the applicant wife was unable to question the celebrant about the nature of the ceremony due to cultural beliefs.
The solicitor for the applicant emphasised that the circumstances of both the ceremony and the parties’ subsequent behaviour toward one another were indicative of the applicant’s beliefs about the nature of the ceremony. The ceremony failed to accord with the parties’ cultural traditions, took place in a rushed manner with minimal attendees and ordinary clothing, and following the ceremony the parties acted as if they were planning for a future engagement with both parties returning to their respective homes and never consummating the marriage.

Conclusion

In this case, I am satisfied on the balance of probabilities, on the unchallenged evidence before me, that the applicant was mistaken as to the nature of the ceremony in which she was participating. I accept the evidence of the applicant that the character of the ceremony supported her belief that it was a ceremony for the registration of a relationship and a “promise night”, and that the ceremony lacked the characteristics of a marriage within her community. I am satisfied that the applicant was not informed by the respondent of the true nature of the ceremony and of the documents she signed, and that the applicant was mistaken as to the nature of the ceremony and the content of the documents she signed due to her lack of English proficiency. I am thus satisfied on the balance of probabilities that the applicant did not give real consent to the marriage that took place.
I find that the marriage is void because the applicant did not give real consent to the marriage because she was mistaken as to the nature of the ceremony performed and I propose to pronounce a decree of nullity of the marriage.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 24 October 2016.

Associate:

Date: 24 October 2016