CHENG & TSE

[2014] FamCA 699

FAMILY COURT OF AUSTRALIA

CHENG & TSE [2014] FamCA 699

FAMILY LAW – NULLITY – Where the applicant alleges her consent to the marriage was not proper because of duress – whether consent obtained by duress – proximity of the alleged duress to the marriage ceremony considered – no grounds for nullity of marriage established – application dismissed.

Family Law Act 1975 (Cth)

Marriage Act 1961 (Cth)

In the marriage of S (1980) FLC 90-820
In the marriage of Teves III and Campomayor (1994) 18 Fam LR 844

APPLICANT: Ms Cheng

RESPONDENT: Mr Tse

FILE NUMBER: DGC 1362 of 2014

DATE DELIVERED: 29 August 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 1 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McCreadie

SOLICITOR FOR THE APPLICANT: GE Law Services

THE RESPONDENT: No appearance

ORDERS

IT IS ORDERED THAT

1. The Initiating Application filed 13 May 2014 be dismissed and the matter be removed from the list of cases awaiting hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cheng & Tse 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: DGC 1362 of 2014

Ms Cheng

Applicant

And

Mr Tse

Respondent

REASONS FOR JUDGMENT

1. The application listed before me in the Judicial Duty List on 1 July 2014 is the initiating application filed by the applicant wife Ms Cheng on 13 May 2014. The applicant seeks a decree of nullity. 

2. Although the applicant sought orders that service of the application be dispensed with or, in the alternative, an order for substituted service of the application upon the respondent husband’s landlord or that the matter proceed on an ex parte basis, a number of attempts were made to affect service of the application upon the respondent. These included the applicant’s step-father telephoning the landlord of the unit in B Town – which the parties rented and in which they lived during the relationship – and thereafter the applicant’s solicitors forwarding correspondence to the landlord.

3. The applicant also deposes that on 12 May 2014 her solicitors telephoned the respondent’s mobile telephone and were informed by him that his address was C Street, Suburb D, and that he would accept service of the initiating application. The initiating application, a printed form of advice prescribed by the Regulations, an acknowledgement of service, and a stamped self-addressed envelope were forwarded to the respondent under cover letter dated 16 May 2014 by registered mail lodged on 19 May 2014. The acknowledgement of service was signed by the respondent on 20 May 2014. The applicant, through her counsel, identified the respondent’s signature on the acknowledgement of service.

4. I am satisfied that the initiating application for a decree of nullity has been served upon the respondent but that there was no appearance by or on behalf of the respondent at the hearing before me.

Background

1. The applicant is 25 years of age. She is employed as in health services.

2. The respondent is also 25 years of age. Although the applicant deposes that she did not know for certain where the respondent was either living or working it was her belief that he might be employed on a casual basis in Suburb E.

3. The applicant and the respondent first met in 2006 and commenced a relationship in early 2012.

4. The parties commenced cohabitation in 2013, shortly before their marriage. The marriage, which was a small civil ceremony performed by an authorised civil celebrant in the Old Treasury building in Melbourne, was registered in 2013.

5. The applicant and the respondent separated in late July 2013.

6. The applicant deposes that the respondent proposed marriage on a number of occasions shortly after they met but that she refused because she had not known him for long.

7. During 2012, the applicant’s last year of study for her dental degree, the applicant spent most of her time in rural Victoria and did not spend much time with the respondent. The applicant said that they ‘did catch up a few times’ during that period and that she discovered that one of the respondent’s hobbies was Japanese sword play. It is the applicant’s evidence that during their relationship the respondent would threaten her with his sword by thrusting it directly at her face, that the sword would stop only one or two centimetres from her face, that sometimes she could feel the blade of the sword in her hair and that she was petrified and feared for her life. She deposes that the respondent would laugh at her.

8. In January 2013 the applicant took the respondent to her parents’ home in Bendigo where she says he took photos of her in the shower without her permission. Although the applicant did not provide details of those photographs in her affidavit, I was informed by her counsel that they were full frontal photographs of her from the waist up.

9. The applicant deposes that one day the respondent showed her the photographs, which were on his telephone. She said that she”

   ... was shocked and tried to grip the phone but was unable to take it from him. He held his phone and stared at me in a threatening and intimidating manner. I started shaking. He asked me to marry him. I was speechless and went blank. He persisted again in a very firm and threatening tone asking me to marry him.

10. The applicant said that she remained silent but that they then argued about the photographs and the respondent said ‘that if I married him and we rented a house together that I could get the photos back from him.’ She said the respondent ‘warned me not to speak about this to my parents or my friends and not to tell them about the photos.’ The applicant deposes that she believed the respondent would give her back the photographs if she married him.

11. On 26 June 2013 she and the respondent rented a unit together in B Town. The rental was paid from a joint bank account that they had opened in early 2013, which the applicant deposes was opened at the respondent’s request.

12. The applicant says that following their marriage the respondent refused to return the photographs to her despite her repeatedly asking him to do so. She also deposes that in July 2013 after their marriage – although it is not clear if this occurred before or after their separation – the respondent borrowed $8,500 from her to purchase a car.

13. In August 2013 the applicant left the unit they had rented.

Legal Principles

1. Section 51 of the Family Law Act 1975 (Cth) provides that an application for a decree of nullity shall be on the ground that the marriage in question is void. Pursuant to s 23B(1) of the Marriage Act1961 (Cth) a marriage is void where:

   (a)either of the parties is, at the time of the marriage, lawfully married to some other person;

   (b)the parties are within a prohibited relationship;

   (c)by reason of section 48 the marriage is not a valid marriage;

   (d)the consent of either of the parties is not a real consent because:

   (i)it was obtained by duress or fraud;

   (ii)that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or

   (iii)that party is mentally incapable of understanding the nature and effect of the marriage ceremony; or

   (e)either of the parties is not of marriageable age;

   and not otherwise.

2. It is the applicant’s case that her consent to the marriage was obtained by duress. Although in her affidavit she describes what she said was fraud, she did not put her case on that basis.

3. Counsel for the applicant submitted that the ordinary meaning of duress as defined in the Oxford Dictionary is ‘prolonged, cruel or unjust treatment or exercise of authority.’  

4. Watson J in In the marriage of S (1980) FLC 90-820 said at [75179] as follows:

   If there are circumstances which taken together lead to the conclusion that because of oppression 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.

5. In In the marriage of Teves III and Campomayor (1994) 18 Fam LR 844 Lindenmayer J stated at [853] that although ‘duress 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.’ However his Honour also highlighted the need for there to be some proximity between the alleged duress and the marriage ceremony itself, at [855] 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 the applicant to show that at the time she gave her consent at the ceremony, some overbearing force was operating.

6. The standard of proof in this case is the balance of probabilities.

7. In essence, the applicant’s case is that she was fearful of the respondent because of his behaviour with the Japanese sword and that she believed that if she married the respondent he would give her the photographs he had taken of her.

8. The incidents of Japanese sword play the applicant describes to which I have already referred are described as having taken place during the relationship. The applicant also deposes that ‘in the short time that I was living in the rented unit … he would continue to wave the sword in front of me’ and that ‘[s]ometimes while I was reading a journal article I would suddenly see the sword blade appear right next to my face’. She says this caused her to cry and that she would beg him to stop as his behaviour scared her.

9. However, it is not clear from the evidence whether these incidents at the unit in B Town were before or after the marriage ceremony and, if they were prior to the ceremony, there proximity to that ceremony and how they impacted upon the applicant’s capacity to consent to the marriage. Although the applicant describes being ‘petrified and scared for my life’, this was in relation to incidents that occurred during 2012.

10. There is also no evidence connecting the photographs she says were taken by the respondent to the ceremony of marriage. According to the applicant’s evidence, those photographs were taken in late January or early February 2013. Although the applicant deposes that she was shocked when the respondent showed her the photographs and that he said he would give the photographs back to her if she married him, there is no evidence as to when this conversation is said to have occurred, its proximity to the actual ceremony, or any impact it had on the applicant’s capacity to consent to the marriage at the time of the ceremony itself.

11. I am not satisfied on the balance of probabilities on the evidence before me that the effect upon the applicant of the respondent’s Japanese sword play or the fact that he had, some six months prior to the marriage, taken and retained photographs of the applicant in the shower, is sufficient to constitute duress such that it could be said that she did not consent to the marriage.  

12. In all of the circumstances, I propose to dismiss the applicant’s application for a decree of nullity.   

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered 29 August 2014.

Associate: 

Date:  29 August 2014