CARROLL & SINCLAIR - [2011] FamCA 651

FAMILY COURT OF AUSTRALIA

CARROLL & SINCLAIR

[2011] FamCA 651

FAMILY LAW – NULLITY – Where the wife was 18 years at the time of marriage – Where the wife was a minor at the time she signed the notice of intention to marry document – Where the wife alleges that the dates on the notice of intention to marry document were fraudulently changed to comply with the Marriage Act 1961 (Cth) – Where the wife alleges that the husband married her for immigration purposes – Where the wife’s application is dismissed.

Family Law Act 1975 (Cth), s 4, s 51, s 113.
Marriage Act 1961 (Cth), s 11, 23B, s 42, s 48.

Dinal & Tohim (No. 2) [2009] FamCA 540
In the Marriage of Hosking and Hosking (1995) FLC 92-579
In the Marriage of Kapadia and Kapadia (1991) FLC 92-245
In the Marriage of: Osman and Mourrali (1990) FLC 92-111
Privet v Vovk [2005] NSWSC 1258 (8 December 2005)
Rabab & Rashad [2009] FamCA 69

APPLICANT:

Ms Carroll

RESPONDENT:

Mr Sinclair

FILE NUMBER:

MLC

5536

2011

DATE DELIVERED:

24 August 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Young J

HEARING DATE:

10 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

EX PARTE ORDERS

IT IS ORDERED:

THAT the wife’s Application filed 24 June 2011 for an Annulment of Marriage be dismissed.
THAT the wife use her best endeavours to serve by post upon the husband a sealed copy of this Order and the Reasons for Judgment.

IT IS NOTED that publication of this judgment under the pseudonym Carroll & Sinclair is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC5536 of 2011

Ms Carroll

Applicant

And

Mr Sinclair

Respondent

REASONS FOR JUDGMENT

This is the hearing of an application brought by the applicant, Ms Carroll, where she sought an annulment of her marriage to the respondent, Mr Sinclair. The matter was heard in the Judicial Duty List with the applicant initially appearing in person and after a brief adjournment then with the assistance of a duty lawyer. The duty lawyer sat beside the applicant at the bar table and after some discussion I indicated that I would again stand the matter down and that they would be given time and the opportunity to have the matter called again later in the day if the applicant had any additional evidence which would assist her case. This opportunity was not taken up.
The respondent has not filed any documents, nor did he attend the hearing. The applicant’s statements from the bar table were that the respondent had been served by a process server and had knowledge of these proceedings, but there are no service documents on the file which confirmed such an outcome.
I am not satisfied that the respondent has been properly served or that he has any knowledge of these proceedings and accordingly I am not convinced that he has been afforded procedural fairness. Notwithstanding and on the evidence now before me I will consider the applicant’s substantive application.
The applicant’s evidence was a brief handwritten affidavit either sworn or affirmed on 7 June 2011 and oral evidence, which she gave in response to my questions from the bar table. The parties’ Marriage Certificate is also on the Court file.
The applicant was born in 1992. The respondent was born in 1987. Both are students. The parties’ marriage certificate showed that they were married in May 2010 in Sydney Suburb 1, NSW. The applicant had turned 18 only weeks before the marriage and she said that at that time the respondent had overstayed his Australian visa. She said that her mother attended the marriage ceremony and did not object to the marriage going ahead. The applicant’s father did not attend the marriage ceremony. The applicant conceded that she willingly entered into the marriage because she loved the respondent and said that the parties consummated the marriage. She said that it only later became apparent to her that the respondent was “using her” so that he could remain in Australia and become an Australian citizen after the marriage.
The applicant said that separation occurred on 3 January 2011 and that the respondent currently lives in India because she refused to continue sponsoring his visa. After he returned to India he telephoned the applicant a number of times, asking her to keep the marriage “a paper marriage” so that he could get Australian citizenship. He also asked her for their marriage certificate. The applicant said that during these phone calls he would threaten her. She said that the respondent no longer attempts to contact her and she does not speak to him.
In the Marriage of Kapadia and Kapadia (1991) FLC 92-245, Kay J observed, at 78,665, that, “The Family Law Act has two distinct procedures available to parties seeking to test the validity of their marriage”: a decree of nullity or a declaration that the marriage is invalid. I will consider each of these in turn.
Pursuant to s 51 of the Family Law Act 1975 (Cth) (“Family Law Act”), an application for a decree of nullity of marriage is based on the ground that the marriage is void. Section 23B of the Marriage Act 1961 (Cth) (“Marriage Act”) sets out an exhaustive list of the grounds on which I may find that the marriage is void.
The applicant presented a number of submissions as to why the marriage should be void. First, she submitted that the respondent only married her for the purpose of obtaining Australian citizenship. Whilst she made no reference to the law in the course of her submissions, I have accepted that this limb of her argument relied on s 23B(1)(d)(i) of the Marriage Act, which states that a marriage is void where “the consent of either of the parties is not a real consent because… it was obtained by duress or fraud.”
The question of whether fraud within the meaning of s 23B(1)(d)(i) can be established in instances where one party married the other for immigration purposes has been considered in a number of decisions. In the Marriage of: Osman and Mourrali (1990) FLC 92-111, Nygh J said at 77,742:
Conversations with some of my brethren have disclosed that applications on the ground of what might loosely be called “immigration fraud” are relatively common and in unreported decisions some judges have followed Deniz and Deniz [(1977) FLC 92-252] and granted annulments whereas others have preferred the traditional view and refused them. I myself have followed Deniz and Deniz in one undefended application although I stressed on that occasion that it was not to be seen as a precedent in the absence of argument.
In that case his Honour referred to Otway and Otway (1987) FLC 91-807, at 77,742, which adopted the more “traditional view that the fraud had to relate to the identity of the respondent or the nature of the ceremony”. Nygh J ultimately expressed his preference for the traditional view and refused to grant the annulment of marriage in that case.
Similarly, in the case of In the Marriage of Hosking and Hosking (1995) FLC 92-579, at 81,750, Lindenmayer J concluded:-
that the term “fraud”, as it appears in s. 23B(1)(d)(i) of the Marriage Act, has a fairly limited scope. Its concern is with fraud as to the identity of the other party or as to the nature of the ceremony, and not as to the motives of a party in entering into the marriage.
I agree with the above statement of the law. It follows that the applicant has not made out a case for fraud within the meaning of the Marriage Act.
Secondly, the applicant submitted that although she was 18 when the marriage was solemnised, she was only 17 years old and therefore a minor when she and the respondent signed the notice of intention to marry.
Section 23B(1)(e) of the Marriage Act states that a marriage is void where either of the parties is not of marriageable age. Section 11 provides that “a person is of marriageable age if the person has attained the age of 18 years”. The applicant admits that she was 18 years old at the time of marriage and accordingly she was clearly of “marriageable age”. The important and relevant date is of the marriage and thus it is not fatal that the applicant was only 17 at the time of signing the notice of intention to marry.
Thirdly, the applicant submitted that the marriage should be void because the date that the parties signed the notice of intention to marry was incorrectly recorded on that document and the parties did not give the marriage celebrant adequate written notice of their intention to marry. She says that the marriage celebrant “was playing around with the dates” on the notice of intention to marry to make it appear as though the parties had given the celebrant notice of at least one month and one day, when a lesser period of notice was actually given.
Section 23B(1)(c) of the Marriage Act provides that a marriage is void where “by reason of s 48 the marriage is not a valid marriage”. Section 48(2) relevantly reads as follows:
A marriage is not invalid by reason of all or any of the following:
(a)failure to give the notice required by section 42, or a false statement, defect or error in such a notice;
(b)failure of the parties, or either of them, to make or subscribe a declaration as required by section 42, or a false statement, defect or error in such a declaration;
(c)failure to produce to the authorised celebrant a certificate or extract of an entry or a statutory declaration as required by section 42, or a false statement, defect or error in such a statutory declaration;
(d)failure to comply with any other requirement of section 42, or any contravention of that section;
Section 42(1)(a) of the Marriage Act relevantly states that a marriage shall not be solemnised unless notice is given in accordance with that section and has been received by the marriage celebrant not earlier than 18 months before the date of the marriage and not later than one month before the date of the marriage. Section 42(8) states:
42(8) An authorised celebrant shall not solemnise a marriage:
(a) unless the authorised celebrant has satisfied himself or herself that the parties are the parties referred to in the notice given under this section in relation to the marriage; or
(b) if the authorised celebrant has reason to believe that:
(i) a notice given under this section; or
(ii) a declaration made and subscribed under this section, or a statutory declaration made for the purposes of this section;
in relation to the marriage, contains a false statement or an error or is defective.
Judicial consideration of s 48(2) of the Marriage Act has confirmed that a defective or invalid notice of intention to marry does not make a marriage void (Rabab & Rashad [2009] FamCA 69 at [29]; Privet v Vovk [2005] NSWSC 1258 (8 December 2005) at [30]).
On the applicant’s unchallenged evidence s 42(1)(a) was not properly complied with. However, pursuant to the clear words of s 48(2), the marriage is not void because of this noncompliance, even if I do accept the applicant’s evidence.
The applicant has not been able to make out a case that I should pronounce a decree of nullity pursuant to s 51 of the Family Law Act.
I will now consider whether I can make a declaration that the marriage is invalid.
Section 113 of the Family Law Act 1975 (Cth) provides that:
In proceedings of the kind referred to in paragraph (b) of the definition of matrimonial cause in subsection 4(1), the court may make such declaration as is justified.
Subsection (b)(iii) of the definition of matrimonial cause includes “proceedings for a declaration as to the validity of… a marriage”.
In Kapadia (supra), Kay J cites with approval the Family Law text of the late Sir Percy Joske published in 1976 by the Law Book Company at 78,667, after noting that at the time his Honour wrote that text, the equivalent provisions of s 23B of the Marriage Act were found in the Family Law Act:
Although the Family Law Act provides that certain marriages and no others are void, and that a decree of annulment may be obtained only in respect of those marriages, this does not mean that in all other instances persons going through a ceremony of marriage are validly married to each other. In order to constitute a valid marriage a ceremony may not be enough since for some reason the parties may not be able to marry one another or there may be some fatal defect which prevents it being a valid marriage. In such instances, although a party to a ceremony of marriage may not be able to obtain an annulment, he may obtain a declaration as to the validity of the marriage.
In the more recent case of Dinal & Tohim (No. 2) [2009] FamCA 540, at paragraph 39, Cronin J said that:-
it is quite clear that s 113 is an extremely wide provision. I agree with Kay J [in Kapadia (supra)] that nothing in s 113 limits its operation. Its tenor is whether or not a set of facts justify the declaration.
Having considered the evidence of the applicant I am satisfied that there are no additional facts to those outlined above which would mean that the parties were not able to marry one another or otherwise “justify the declaration”. Accordingly, I am unable to make a declaration to the effect that the marriage is invalid under s 113 of the Family Law Act.
In conclusion, I am not satisfied that the respondent is aware of these proceedings or that he has been accorded procedural fairness by having an opportunity to present his case. In any event, even if I did accept the applicant’s unchallenged evidence, she has not established any of the grounds for a decree of nullity of marriage or made out a case for a declaration that the marriage is invalid. Accordingly, the wife’s substantive application must be dismissed.

I certify that the preceding Twenty-Eight
(28) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 24 August 2011

Associate: ……………………………………………………………

Date: …………………………………………………………………