Chirag and Kanelka

[2018] FamCA 476

FAMILY COURT OF AUSTRALIA

CHIRAG & KANELKA [2018] FamCA 476

FAMILY LAW – NULLITY – consent, capacity, prohibited relationship – no substance in any ground – application dismissed.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Marriage Act 1961(Cth)
Family Law Rules 2004 (Cth)

AK & NC (2003) FLC 93-178
Szechter v Szechter [1970] 3 All ER 905
Teves III & Campomayor (1995) FLC 92-578

APPLICANT:

Ms Chirag

RESPONDENT: Mr Kanelka

FILE NUMBER: MLC 139 of 2018

DATE DELIVERED: 5 June 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 5 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT: In Person

Orders

IT IS ORDERED THAT

1. The application for a decree of nullity filed 9 March 2018 be and is hereby dismissed.

2. My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chirag & Kanelka has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1365 of 2018

Ms Chirag

Applicant

And

Mr Kanelka

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me in the judicial duty list.  It is the application filed by Ms Chirag on 9 March 2018 in which she seeks a nullity of her marriage to the respondent, Mr Kanelka, on the basis that, at the time of the marriage, she was a minor under the influence of medication and drugs, the marriage was prohibited between first cousins under her religion and happened without her parents’ consent.

2. This is the second application which the applicant has made for a nullity, the first being made on 9 February 2018 and then discontinued by a form 10 filed on 12 February 2018.  I read nothing into the fact that an application was made and then discontinued, other than to explain that there are two almost identical applications on the court file.

3. There is no issue that the marriage in this proceeding, in the formal sense, took place. 

4. The applicant bears the onus of proving the elements of the nullity. The burden of proof is on the balance of probabilities, as provided by s 140 of the Evidence Act 1995 (Cth). As was stated by Lindenmemayer J in Teves III & Camomaoyor:[1]

   One passage from Dixon J in Briginshaw is particularly apposite:-

   But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

   A nullity decree is not to be granted lightly. Moreover, the grant of a decree of nullity is not discretionary. If the facts establish that the marriage is invalid, relief must issue.

   (references omitted.)

   [1] (1995) FLC 92-578 at 81,740

5. Only relevant evidence is admissible. Evidence is relevant when, if accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.[2]

   [2]See s 55 of the Evidence Act 1995 (Cth)

6. I have regard to the evidence of the applicant contained in the following affidavits:

   a. her affidavit sworn or affirmed on 9 March 2018;

   b. her affidavit sworn on 13 March 2018.

   Additionally, there is the affidavit of the applicant’s mother sworn or affirmed on 9 February 2018 and filed on 9 February 2018 to which I have regard. 

7. The respondent opposes the application and relies upon an affidavit sworn by him on 4 June 2018 and filed on 5 June 2018.  He has also handed up a four-page document, which he says is signed by the applicant, dated 4 September 2017, which contains many criticisms of her parents and allegations that they have intimidated and treated her cruelly.  The document bears signatures which appear to be similar to that of the applicant from my observation of documents on the court file.  However, she denies being the author of that document or signing the document as alleged.

8. There is another document tendered by the respondent, which the applicant identifies as bearing her signature.  She admits that she did make the document, but says she was forced to make it.  The signature on that document appears similar to the other signatures on the court file and the one that she says is not hers.  I am not prepared to find that the document dated 4 September 2017 is the applicant’s document on the basis of the respondent’s a mere assertion for which no evidential basis was provided.  I am satisfied that the other document tendered by the respondent was signed by the applicant, as admitted.

9. The applicant cross-examined the respondent to no real effect.  Both parties then made statements from the bar table which, in my view, constituted evidence and so I required them to be called to confirm that what they had said was true and correct, which they did. 

10. By way of background, the parties commenced cohabitation in approximately August 2017 and they were married later that year by Mr B at Suburb C.  It is alleged by the applicant that they separated on 31 January 2018. The applicant was only 17 years of age when the parties married.  She was born in early 2000.  The respondent was born in 1993. 

11. It is alleged that the applicant and respondent are first cousins and this is not denied by the respondent.  The applicant deposes that she was only 17 years of age when she married the respondent and was “not in a right state of mind” when the respondent and his brother told her to sign marriage papers. 

12. The applicant deposes that the marriage was registered without her parents’ consent, even though she was under 18 years of age at the time.  That appears to be correct.  Her mother has sworn an affidavit saying she did not consent.  The applicant deposes that she was not aware of what she was getting into by signing marriage papers.  The applicant further deposes that the respondent had married her only for purposes of immigration to Country D because the applicant is a Country D citizen.

13. Section 51 of the Family Law Act 1975 (Cth) provides that an application for a decree of nullity of marriage shall be based on the ground that the marriage is void.

14. Pursuant to section 23B(1)(d) of the Marriage Act 1961 (Cth) a marriage is void if the consent of either of the parties is not a real consent because it was: obtained by duress or fraud, the party is mistaken as to the identity of the other party or as to the nature of the ceremony performed, or the party is mentally incapable of understanding the nature and effect of a marriage ceremony. Here, the applicant relies on the first and third ground.

15. Section 31 of the Family Law Act 1975 (Cth) provides that jurisdiction is conferred on this Court with respect to matters arising under the Marriage Act 1961 (Cth).

16. The applicant raises in her application, and it is not denied, that the parties are first cousins. Section 23B of the Marriage Act provides that a marriage is void where the parties are within a “prohibited relationship”. Marriages of parties within a prohibitive relationship are defined by section 23B(2) as being between a person and an ancestor or descendent of the person or between two siblings, whether of whole blood or of half-blood. “Ancestor” is defined as being a person from whom the first mentioned person is descended, including a parent of the first mentioned person. So the prohibited relationships are between parent and child and between siblings but not between first cousins. The parties are not in a prohibited relationship. I find that this ground has no substance.

17. Section 23B(1)(e) provides that a marriage to which this division applies is void where either of the parties is not of marriageable age. Marriageable age is 18 years. The applicant was only 17 years old at the time of the marriage.

18. Pursuant to section 12(1) of the Marriage Act (1961), a person who has obtained the age of 16 years, but not then attained the age of 18 years may apply to a judge or a magistrate in the state or territory for an order authorising him or her to marry a particular person who is of marriageable age, despite the fact the applicant has not obtained the age of 18 years. That is what occurred in this case. The respondent brought to court and handed up a photocopy of an order pursuant to section 12(1) of the Marriage Act (1961) from which I note that Pauline Spencer, Magistrate, on 28 August 2017 certified that she conducted an enquiry into the relevant fact and circumstances and was satisfied that the applicant was under the age of 18 years but, having heard evidence from her, was satisfied that “the circumstances of this case are unusual and so exceptional in combinations, as to justify the granting of an order “that, pursuant to section 12 of the Marriage Act, the applicant had permission to marry the respondent pursuant to the laws of the State of Victoria within three months of that day”, which was 28 August 2017.  The applicant admits that the order was made as alleged.  The copy of the marriage certificate, with which the applicant takes no issue, indicates that the marriage was solemnised under the Marriage Act comfortably within the three months allowed in the s 12(1) certificate.

19. Section 13 of the Marriage Act provides that where a party to an intended marriage is a minor the marriage shall not be solemnised unless there is produced to the person by whom or in whose presence the marriage is solemnised an effective consent in writing of a magistrate or a judge under this part in place of the consent of that person.  There is no issue that that requirement was not fulfilled.  Had there been an issue, I would have expected evidence to that effect.

20. In circumstances where the applicant and the respondent at the time of the marriage relied on the effective consent of the magistrate in question, it was not necessary, on my reading of the legislation, for the applicant’s parents (or either of them) to consent to the marriage.  I find that there is no substance to the ground that the parties married without the consent of the wife’s parents.  There is nothing to vitiate the order of the state magistrate.

21. Next, the applicant puts in issue whether she was of sound mind when she made the application to the magistrate and when she underwent the marriage ceremony.  She alleges in her affidavit material, in particular at paragraph 5 on page 2, that the respondent:

    forced me to take some pills before I came to court on 28 August 2017.  He made me give witness to make me look like a victim and my parents like the criminals while, in fact, this pedophile [sic] was the one that was stepping on the backbone of a child in order to fulfil his own selfish goals.  I was not in the proper state of mind that day when the Honourable Magistrate granted an order, namely: ‘Consent of Judge or Magistrate on Application Under Subsection 16(1)’ under the Australian Marriage Act 1961’.  The order took the place of my parents’ consent for getting married as I was a minor at the time of the marriage.  I was under deep depression and was suffering from heart palpitations and blackmail from [Mr Kanelka] [the respondent] who had, over the years, acquired certain images of me in compromising situations that he had a screenshot from our video calls.  He always threatened to post these online and send them to my friends.  I had come to Australia to live with [Mr Kanelka] [the respondent] as previously we had never lived together for long and only stayed together for a few days during our family trips [overseas].

    After the court order was granted, there was no happier person than [Mr Kanelka] [the respondent].  He said that my testimony was so believable that ‘even if I murdered your parents in front of you, and you gave testimony the same way?  I would get scott free from the system.’ 

22. The applicant clearly understood the effect of the Magistrate’s certificate when she swore her affidavit in March 2018.

23. The applicant then deposes to abusive behaviour by the respondent of her and she says at paragraph 8 and 9 of her affidavit:

    8. That is why there was a gap … in between the Court Order being granted [28 August 2017] and our marriage which occurred on … 2017. I had changed my mind about [Mr Kanelka] during that month, and did not want to marry him.

    9. During the month I became aware that I was pregnant, my mental condition declined rapidly as I was a child myself and there was a child inside me. [Mr Kanelka] forced me into getting an abortion done on … 2017 (one day before the marriage), I was given a cocktail of drugs which included: Mifepristone, some antiemetics (Naprogesic) and pain medications. Alongside other “vitamins” that [Mr Kanelka] made me take. I kept wanting to vomit and [Mr Kanelka] was worried that if I vomited, I would vomit out the Mifepristone and not have a successful abortion and would bring the baby to full term. As such he forced me to take a heavier dose of Naproxen it is a common antiemetic that has mind altering side effects if taken in heavier doses. The doctor told me to take this antiemetic in a normal dose 24 hours after taking the abortion pill Mifepristone. However, [Mr Kanelka] forced me to take both drugs at the same time and forced me to take the Naprogesic in a heavier dose.

24. I note that in paragraph 8 the applicant refers to a “change of mind” about her resolution to marry the respondent and deposes that she did not, at the date of the marriage, wish to marry him.  That indicates that she had, at an earlier point in time, formed the intention to marry and a plain reading of the affidavit indicates that earlier time to be on 28 August 2017 when the two appeared before the magistrate at Suburb E.  There is no evidence of when, during the month between the appearance on the Magistrates Court and the wedding ceremony, that the applicant changed her mind.

25. To the extent that the applicant attaches printed material and refers to material about common side effects of medication, which she deposes she was given, I do not have regard to that as evidence. It is not evidence because it contains hearsay (that is, the person making the representation relied upon, being the side effects of the medication, was not called to give evidence or on affidavit). To the extent that the applicant herself deposes to the properties and effect of Naproxen, that is evidence which would be required to be given by an expert. The applicant is not an expert within the meaning of Section 79 of the Evidence Act 1995 (Cth); she does not have specialised knowledge based on her training, study or experience. Neither is the applicant’s mother is an expert.

26. Insofar as it is her contention that her consent to the marriage was not real consent because she was mentally incapable of understanding the nature and effect of the marriage ceremony, I refer to the decision of Chisholm J and adopt his Honour’s discussion about what is meant by “the party is mentally incapable of understanding the nature and effect of a marriage ceremony” in the case of AK & NC.[3]  His Honour says the following on whether the wife in that case lacked capacity:

    It is clear from the authorities that the law does not require a person to have a detailed and specific understanding of the legal consequences of marriage in order to have the capacity to give valid consent.  However, mere awareness of going through a marriage ceremony is not enough; a person must also understand the nature and effect of the ceremony involved.  It is not necessary to rule on whether the question relates to a person’s general understanding of the nature of marriage and the obligations it entails (as suggested by the earlier authorities) or of the more specific consequences the particular marriage will have for the persons involved.” (references omitted.)

    [3](2003) FLC 93-178

27. I am not satisfied that the applicant’s mental faculties were compromised by medication or drugs on 28 August 2017 when she went before the Magistrate and obtained the consent to marry or, more importantly, on the day of her marriage.  The evidence upon which the applicant relies does not convince me that she did not understand the nature and effect of the marriage ceremony in which she participated. 

28. I am satisfied that the applicant understood the implications of marriage when she went before Magistrate Spencer on 28 August 2017 as well as on the day she was married. The applicant did not lose her understanding in the month between the application to the Magistrates’ Court and the marriage ceremony. There is no substance to this ground.

29. The applicant refers to feeling “overborne” by the respondent and being manipulated by him. Section 23(B)(1)(d) of the Marriage Act 1961 (Cth) provides that a marriage is void if, inter alia, it was obtained by duress. The applicant deposes at paragraph 12:

    12. I am humbly seeking an annulment of this marriage which occurred between me and [Mr Kanelka] on … 2017 for the specific reasons mentioned above which clearly shed light on [Mr Kanelka]’s ploy to victimise an innocent child for his selfish purposes of gaining immigration to [Country D].  I had previously filed an application for annulment on February 9^th, 2018 (File #MLC1365/2018) and paid $1225.00AU (Invoice MLF1064647-09/02/2018-14.36) from my mother’s credit card as my financial condition is very tight as I have no source of income.  The hearing was set for February 21^st 2018. However before the hearing due to [Mr Kanelka’s] continuing blackmail and his mind control tactics that he has used on me, he got me to discontinue this application on February 12^th, 2018 after only three days of filing this application.  After he had fulfilled his own selfish goals of getting this application discontinued his behaviour returned to the same in order to save himself from jail, he used me again.  Finally, I have come to my senses now and fully stand behind this application I am submitting before you and will not withdraw this application this time under any circumstances.

    13. At the time of marriage, I lacked the obvious mental capacity to enter into marriage, I was victimized by [Mr Kanelka] since I was a young child and was blackmailed into doing things which I did not want to do as [Mr Kanelka] is in the possession of certain images of me which he had screenshot while he would video chat with me. All that aside, this marriage is also prohibited by our religion and due to being mentally controlled by [Mr Kanelka] and due to being under the influence of mental capacity changing drugs I was forced into this marriage.

    14. I hope that after becoming aware of all these facts that I have humbly presented before [the court] will help me escape the clutches of this pedophile [sic] and grant me the freedom to start a new life without this phase of my life dragging me down and holding me hostage once again and prevent the world from unfairly labelling me as a divorcee when in fact none of it was my fault. It was the grand scheme of [Mr Kanelka] who preyed upon a child for immigration to another country.

    15. I know that the facts presented before [the court] are exceptional and [the court] might have never seen a case like this one before, but I also believe in the power of truth and the might of the Justice System to right certain wrongs that were committed against a child. Please don’t let me suffer anymore for the wrongs that [Mr Kanelka] committed against me. Please grant me the justice to freely live my life according to my own means and free will as every single person on this earth should have as an unalienable right.

    16. At the time of marriage, I did not know the obligations of the marriage, was under the influence of mental capacity altering drugs at the time of marriage, I was a minor, related to [Mr Kanelka] by blood, and was damaged mentally, physically, and financially by [Mr Kanelka], I was blackmailed and abused. I ask the court to give me special relief in these trying circumstances and expedite this matter of annulment so that I do not have to suffer any longer and can move past the mental torture of having been forced into a marriage that I did not want nor agree to with full mental capacity so that I can move onwards with my life.

1. There are numerous cases on what constitutes duress under various circumstances in various contexts.

2. In Teves III & Campomayor,[4] Lindenmayer J confirmed that “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.” His Honour also considered the proximity of the alleged acts of duress to the marriage ceremony. In that case, the parties had married in the Philippines in 1991. The wife sought a decree of nullity on the grounds of duress. The alleged cruelty involved physical violence, including rape. The husband and wife were both citizens and residents of the Philippines at the time of the marriage ceremony in 1991. The applicant moved to Australia in 1992 but her husband remained in the Philippines. Most of the evidence related to incidents prior to the marriage ceremony which, his Honour found, had minor relevance to the question of duress. A time lapse between the alleged threat and the ceremony can be important. Lindenmayer J said that the time gap between when the wife agreed to marry the husband (late August 1991) and the ceremony on 10 September 1991, was “of concern”. His Honour held that the applicant's evidence was deficient. “[I]t 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.”[5] In the present case, the applicant alleges that the respondent had blackmailed her since she was a young child which I interpret as not being proximate to the ceremony.

   [4] (1995) FLC 92-578 at 81,737

   [5] (1995) FLC 92-578 at 81,739

3. In Szechter v Szechter,[6] Sir Jocelyn Simon P stated “[i]t is insufficient to invalidate an otherwise good marriage that a party has entered into in order to escape from a disagreeable situation such as penury or social degradation. In order for the impediment of duress to vitiate an otherwise valid marriage it must... be proved that the will of one of the parties thereto has been overborne by genuine and reasonably held fear caused by threat of immediate danger, for which the party is not himself responsible, to life, limb, or liberty so that the constraint destroys the reality of consent to ordinary wedlock.” The court was satisfied of duress where a Polish man had divorced his wife in order to marry a girl they both treated as their daughter and so rescue the girl from prison where her health was degenerating rapidly and she was being interrogated, starved, threatened. In the present case before me, the applicant refers to being “victimized by [Mr Kanelka] since I was a young child and was blackmailed into doing things which I did not want to do as [Mr Kanelka] is in the possession of certain images of me which he had screenshot while he would video chat with me.”  It is correct that the applicant first applied for a decree of nullity earlier in 2018, on 9 February 2018 and then discontinued the application on 12 February 2018 only to issue this application on 9 March 2018 but that is not evidence of duress at the time of the marriage ceremony.

   [6] [1970] 3 All ER 905 at p 915

4. I have already dealt with the lack of expert evidence in relation to the effect of prescription drugs and other substances. To the extent that the applicant alleges that she was in a state of mental incompetence to resist pressure improperly brought to bear, I am not satisfied on the evidence that that she was mentally incompetent. That is also a proposition which is preferably supported by expert evidence. There is insufficient evidence upon which I can decide that the wife was mentally incompetent at the time of the marriage.

5. The respondent was cross-examined in the course of the evidence.  I won’t go into his cross-examination, other than to say it did not uncover anything which assisted the applicant’s case.

6. I am unable to find that the applicant, at the time of the marriage, gave a consent which was not real by virtue of duress or mental incompetence. Accordingly, it is not void within the meaning of section 23B(1)(d) of the Marriage Act 1961 (Cth).   

7. The application for a decree of nullity will be dismissed. The effect is that the parties remain married and if one of them seeks not to be married, he or she must file an application for dissolution of (what I have found to be) a valid marriage as and when they are eligible to do so having regard to the date of separation and other jurisdictional facts. This decision may be appealed within the time limit provided for in the Family Law Rules 2004 but unless it is successfully overturned on appeal, the marriage subsists until dissolved.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 5 June 2018.

Associate: 

Date:  25 June 2018