Broda and Docas

[2007] FamCA 369

FAMILY COURT OF AUSTRALIA

BRODA & DOCAS [2007] FamCA 369

FAMILY LAW - NULLITY - Application rejected - Divorce granted

Family Law Act 1975 (Cth)

APPLICANT: MR BRODA

RESPONDENT: MS DOCAS

FILE NUMBER:	MLC	3507	of	2007
MLC	4292	of	2007

DATE DELIVERED: 18 APRIL 2007

PLACE DELIVERED: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 18 APRIL 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON WITH MS ALTAVILLA

SOLICITOR FOR THE APPLICANT: DUTY SOLICITOR

COUNSEL FOR THE RESPONDENT: IN PERSON WITH MS VADALA

SOLICITOR FOR THE RESPONDENT: DUTY SOLICITOR

Orders

1. THAT the wife’s application for nullity of marriage filed by leave this day be dismissed.

2. THAT on the application of the husband a divorce be granted and the effective date being shortened from thirty days to 2 May 2007, a period of fourteen (14) days.

3. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3507 of 2007

MR BRODA

Applicant

And

MS DOCAS

Respondent

REASONS FOR JUDGMENT

1. In the matter of Broda & Docas, the application before the court was initially that of the husband for dissolution of marriage.  The wife subsequently has, with my leave this day, filed an application for nullity of marriage and other procedural orders to facilitate more evidence being before the court.

2. The history to this matter, briefly stated, is that the divorce application was before the Federal Magistrates Court in Dandenong on 24 January 2007.  The wife alleged on that occasion and the court file records her claim that the marriage was a fraud and that the marriage was never consummated.  On that basis the divorce application was suspended and order was made for the wife to make, file and serve an application for nullity and supporting affidavit before 14 March.  The proceedings were then transferred to this court.  The wife failed to comply with those time restrictions and did not file the required nullity application.

3. The matter was then adjourned from the Judicial Duty List on 28 March and ultimately it was listed for hearing before me in the Judicial Duty List this day.

4. I have facilitated the wife filing her application for nullity and also a lengthy affidavit and three exhibits in support.  I have read each of those exhibits and the wife's affidavit. 

5. The initial application that the wife instructed Ms Vadala, duty solicitor, to make on her behalf, was for an adjournment.  The intent of the adjournment would have been to file further affidavits from her family or to extend her affidavit. 

6. On behalf of the husband the duty solicitor, Ms Altavilla, indicated that her client had no objection to a nullity or to a divorce.  What he wanted was finality of the marriage and the court process.

7. This case had a particular history.  For reasons that are not fully before the court, but what is known to the court is that there are County Court proceedings by way of a criminal trial fixed for 30 April 2007.  The defendant is the husband and whilst the state is prosecuting, the primary witness is the wife and complaints are of rape, sexual abuse and associated matters, particulars of which are not currently before this court.  What is before the court is the statements which the wife provided to police on 2 May 2005 and again on 10 September 2005.  I carefully make no finding on those facts in relation to any criminal charge. 

8. The wife's case for a nullity is based upon the fact that her consent to marriage was not a real consent.  It was, the wife said, obtained by duress.  There is no issue of mistaken identity.  There is no issue of fraud, notwithstanding what the wife earlier told the court.

9. I permitted the wife to give sworn evidence to supplement her affidavit material.  It is clear that there was very considerable conflict, tension and abuse within the relationship and then the marriage. 

10. The parties married in September 2004 in a private ceremony performed by a marriage celebrant and a copy of the marriage certificate is on file. 

11. The essence of the duress is that the wife was compelled and had no choice in marrying the husband because of threats and violence.  There is likely considerable truth in that, but it certainly does not explain the whole of the circumstances leading up to the marriage ceremony.  For whatever reason after the marriage ceremony the wife returned to live in her family home, but subsequently did on occasions and for various periods “give the marriage a go” and live with the husband and have consensual sex.  There were other occasions where it was alleged that there were violent assaults and she was repeatedly raped.  They are matters before the criminal court to which I will not make any comment and that will stand the test of evidence in the County Court.

12. I have endeavoured to understand circumstances whereby I could grant a nullity of marriage.  It is clear that to the wife there is great importance on cleansing the past and not wanting to be known as a divorced person.  Clearly it would be a matter for the wife's mental stability and her own outlook on life to have that past memory wholly and completely erased as a nullity might do.  The court, however, is required to act within stipulated guidelines as to whether there can be a nullity and not a divorce.  Of course there is an irretrievable breakdown of this marriage and the parties could be immediately divorced.

13. I have carefully evaluated the wife's evidence and also the agreement of the husband to a nullity.  This, however, is not a consent matter.  I cannot simply provide a nullity because it is asked for by both parties.  The guidelines have to be met and, unfortunately, in this case, with all the good intent in the world to grant a nullity, it just does not meet the required standard, however liberally I was prepared to interpret that standard.

14. I have not invited the husband to give evidence.  I do not think he could further expand on those matters and I do not want cross‑examination on any criminal issues, that will happen next week in a far more difficult trial.

15. For those reasons I propose to dismiss the nullity application and pronounce a decree nisi of dissolution of marriage.  I certainly adjudge that finality is needed in this case.  I have an option to abridge the period in which the divorce becomes effective.  Normally it is one month, but I will provide certainty and an end of the marriage absolutely to the wife by abridging that time.  It also has a benefit to the husband because that enables him to prepare, as he wants, his life and he is not yet convicted of any charges, so there are matters of doing justice to both parties.  What I propose to do is provide a 14-day period, not a 28-day period.  That 14-day period will therefore conclude on 2 May. 

16. I therefore act upon the husband's divorce application.  I find the marriage proved.  Service is clearly proved.  The jurisdiction is the wife's domicile and permanent resident of Australia and the husband currently is a resident to the extent that he lives in this country.  The ground of marriage is irretrievable breakdown.  There are no children.  Divorce is granted with no children, and I have shortened the period to 2 May 2007.      

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: 
Date:  1 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as BRODA & DOCAS