Cisek & Ghanem
[2023] FedCFamC1F 293
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cisek & Ghanem [2023] FedCFamC1F 293
File number(s): MLC 6721 of 2022 Judgment of: RIETHMULLER J Date of judgment: 21 April 2023 Catchwords: FAMILY LAW – NULLITY – Where a decree of nullity is sought – Sham marriages – Duress claim – Where the applicant alleges she married the respondent for the purposes of assisting the respondent in obtaining Australian residency – No matters of principle Legislation: Marriage Act 1961 (Cth) ss 23A, 23B
Migration Act 1958 (Cth) s 5F
Cases cited: Azmi & Shinde [2014] FamCA 824
Cisek & Farrah [2023] FedCFamC1F 102
Cooper (falsely called Crane) v Crane [1891] P 369
Hamwi & Omar [2012] FamCAFC 174
He v Minister for Immigration and Border Protection [2017] FCAFC 206; 255 FCR 41
Hosking & Hosking (1994) 121 FLR 196; [1994] FamCA 87
In the Marriage of S (1980) FLC 90-820; [1980] FamCA 27
Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5; 236 FCR 303
Nachimson v Nachimson [1930] P 217
Sarvari & Atapati [2017] FamCA 928
Teves and Campomayor (1995) FLC 92-578; [1994] FamCA 57
United States v Rubenstein (1945) 151 F (2d) 915
Bromley, P.M., ‘The Validity of “Sham Marriages” and Marriages Procured by Fraud; Johnson (Falsely Called Smith) v Smith’ (1969) 15 McGill Law Journal 319
Parkinson, Patrick, “Tricked into Marriage” (2018) 42 Melbourne University Law Review 117
Riethmuller and Smith, Family Law (Thomson Reuters, 7th edition, 2022)
Wade, J., “Marriages of Convenience in Australia” (1980) 11(1) Federal Law Review 84
Division: Division 1 First Instance Number of paragraphs: 41 Date of hearing: 20 February 2023 Place: Parramatta Counsel for the Applicant: Mr Fowler Solicitor for the Applicant: Hikma Legal Counsel for the Respondent: Mr Apelbaum Solicitor for the Respondent: Stojanovic Solicitors ORDERS
MLC 6721 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CISEK
Applicant
AND: MR GHANEM
Respondent
order made by:
RIETHMULLER J
DATE OF ORDER:
21 APRIL 2023
THE COURT ORDERS THAT:
1.The applicant’s Initiating Application filed 22 June 2022 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cisek & Ghanem has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
INTRODUCTION
On 22 June 2022, the applicant wife filed an Initiating Application seeking a declaration that the marriage entered into between her and the respondent husband in 1999 is a nullity.
BACKGROUND
The wife says that she met the husband’s brother, Mr Farrah, in 1998 and that she and Mr Farrah engaged to be married late that year.
The wife sets out that she first met the husband when he visited Australia in early 1999 for a holiday. She says that Mr Farrah told her that his brother wanted to live in Australia, and that she should marry his brother so that he could obtain residence in Australia. She says that she objected to marrying the husband as she was engaged to marry Mr Farrah, however, that Mr Farrah threatened that he would leave her and not help take care of her unborn child, if she did not participate in the marriage with his brother. She said that Mr Farrah insisted that “it’s not a big deal. Just marry him and then divorce him once he becomes an Australian citizen”, saying that “all you have to do is a civil marriage ceremony with him so that he has a marriage certificate. We can still get married later in the year and we can do our religious marriage, we don’t have to do the civil marriage”: see the wife’s affidavit filed 22 June 2022, paragraph 17. The wife says that she only reluctantly agreed. The wife sets out that Mr Farrah then told her that they would need to make the relationship convincing so that the Department of Immigration would accept that it was genuine.
In the wife’s material, she said that this conversation took place in early 1999, when the husband arrived on a tourist visa from Country C. However, the wife’s timelines cannot be accurate as Mr F was not born until 2000 and records from the Department of Home Affairs reveal the husband first came to Australia in late 1999.
The wife says that Mr Farrah “therefore organised a civil marriage ceremony. The ceremony took place [in late] 1999 at [M Street, Suburb N], and was attended by [Mr Farrah, Mr Farrah’s] father, the [husband] and me. The ceremony lasted approximately 30 minutes and the marriage celebrant was [Mr O]. [Mr Farrah] and his father were recorded as witnesses on the marriage certificate and the [husband] and I also signed a marriage certificate”: see the wife’s affidavit filed 22 June 2022, paragraph 20. No affidavit was provided from the celebrant.
The wife says that:
21.The civil marriage between the [husband] and I was conducted solely to help him attain permanent residency in Australia. The [husband] and I did not share a financial, intimate or sexual relationship and did not ever live together as a couple. I was still in a monogamous relationship with [Mr Farrah], who was at that time my fiancé.
(Applicant’s affidavit filed 22 June 2022)
The wife says that she and Mr Farrah participated in a religious ceremony in late 1999. Although the wife describes this as a marriage ceremony it appears that it was, at best, a religious marriage ceremony (at paragraph 30 of her affidavit filed 22 June 2022). Although a form of religious marriage certificate was issued, no marriage certificate was issued under the Marriage Act 1961 (Cth), nor would marriage under the Marriage Act be possible as the wife was already married to the husband. However, at paragraph 36 of the wife’s affidavit, she says that “I understood that [Mr Farrah] and I were being married according to [Mr Farrah’s] religious beliefs and for the purposes of Australian law. I did not understand the law relating to bigamy and at no time did I consider that my civil marriage with the [husband] bound us as husband and wife.” It seems clear that on the wife’s evidence she considered the marriage to the husband as nothing more than a sham for the purpose of making false claims to the Department of Immigration.
The wife says that her parents attended the religious ceremony and that she was content to marry in accordance with the principles of that faith, despite being of a different faith. The wife and Mr Farrah later attended a wedding reception with 150 to 200 guests. No marriage certificate was issued pursuant to the Marriage Act, nor was any marriage registered on the State register of births deaths and marriages.
The wife gave birth to her first child, Mr F, in 2000. Thus, she must have fallen pregnant in 1999. Remarkably, the wife says that Mr Farrah completed the forms for the birth certificate, listing the husband as the father of the child for the register of births. She said she asked Mr Farrah about this, and that he said it was to “solidify my brother’s Visa. If the department sees that [the husband] has a child with you, it will make your marriage even more believable and help him attain permanent residency”: see the wife’s affidavit filed 22 June 2022, paragraph 22. The parties have taken no steps to carry out DNA testing in order to enable Mr F to know the truth as to his paternity, about which there must now be considerable doubt.
The wife had a second child with Mr Farrah, Ms G, in 2002.
The wife sought to rely upon a further affidavit (filed 10 March 2023) which refers to and annexes the decision of Hartnett J of 25 February 2023 where the wife and Mr Farrah, when litigating parenting issues concerning Mr F and Ms G, proceeded on the basis that Mr F is the child of Mr Farrah: see Cisek & Farrah [2023] FedCFamC1F 102 at [6]. The husband objected to the wife relying on this further material. I dismissed that application and stated that I would provide reasons in this judgment. It does not appear that this was a fact in issue in those proceedings, in that there is no dispute recorded in that judgment – it is recorded simply as an undisputed background fact. More significantly, the husband was not a party to those proceedings. It was argued that the husband and his brother should be seen as privies for the purpose of relying upon Hartnett J’s judgment as creating an issue estoppel. No authority was provided for this proposition. I am not persuaded that the husband and his brother can be considered privies in this context for the purpose of an issue estoppel arising. I was not persuaded that in the circumstances of this case that it was appropriate to allow it to be led after the hearing in the matter.
The wife said that the husband then married his cousin, Ms P, in a religious ceremony in 2005 or 2006. The wife says that she attended and provided Ms P with a gift. The husband and Ms P now have four children.
A quite different version of events was given by the husband in his affidavit filed 25 October 2022. He says that he and the wife had intimate relations in 1999, and that at the time the wife said to him:
8. I love you, I don’t love [Mr Farrah], he is too old I don’t know how to get out of my relationship with him, he has done everything for the wedding. Lets keep our affair secret. We can get married, move to Queensland and sort out everything from there.
(Husband’s affidavit filed 25 October 2022)
The husband says that his father realised something was amiss and that he told his father of his relationship with the wife and their desire to move to Queensland. This led to a conversation between the husband, Mr Farrah and their father:
My father: “[Mr Farrah], [Mr Ghanem] has something to say to you about him and [Ms Cisek]”
I said: “I slept with [Ms Cisek]. She told me that she loves me, and does not love you. She wants us to get married and move to Queensland.”
[Mr Farrah] said: “If that’s what happened I will call the celebrant and not register our marriage.”
My father said: “You can go and marry [Ms Cisek], but the wedding party has to go ahead to avoid a scandal with the family and friends. We tell no-one.”
[Mr Farrah] said: “We cannot have [a religious] ceremony, I will arrange for a civil ceremony so nobody else finds out. I will also tell [Ms Cisek].”
(Husband’s affidavit filed 25 October 2022, paragraph 13)
Remarkably, the wife, husband and Mr Farrah all lived in the husband’s parents’ house after the ceremonies and the alleged disclosures. Thereafter, the husband says that the wife told him she was pregnant and that he may be the father of the Mr F. He said that his father said to the wife and Mr Farrah (in his presence) “What happened, happened, and this girl who is now our daughter is pregnant with our child I don’t want anyone talking to her or upsetting her. You and your brother act normal. This has now finished”: see the husband’s affidavit filed 25 October 2022, paragraph 20. The husband says that Mr Farrah told him that the wife placed his name on the birth certificate for Mr F.
The husband denies having any conversations concerning Immigration, nor hearing of any threats to the wife by Mr Farrah. However, he agrees that the civil ceremony between him and the wife was arranged by Mr Farrah. He also agrees that he married his current partner in a religious ceremony.
Mr Farrah, in an affidavit sworn on behalf of the husband, claims that he and the wife married in a religious ceremony in late 1999, only to confront the awkward conversation with the husband and their father a short time later to a similar effect to that given by the husband. Mr Farrah says that in late 1999 the wife told him “I made a mistake, I love you and want to stay with you” and that he responded saying “I forgive you”: see Mr Farrah’s affidavit filed 27 October 2022, paragraph 11. Mr Farrah also alleges that the religious marriage between him and the wife took place two weeks earlier on a Saturday, and that it could not have been on the stated date in late 1999 as this was a Friday and no religious marriages are celebrated on Fridays.
Mr Farrah denies any conversations concerning the unborn child or Immigration issues.
GROUNDS FOR NULLITY
In this matter the husband does not oppose the application by the wife for a declaration that the marriage is a nullity. None of the witnesses were cross-examined, making it almost impossible to resolve the factual disputes on the affidavits.
The wife’s case is that effectively it was a “sham” marriage with the husband due to the duress which she was placed under by Mr Farrah threatening to leave her when she had just discovered that she was pregnant for the third time. On the wife’s case, Mr Farrah had threatened to break off their engagement and “leave [her] and won’t help take care of [her] unborn child” should she not marry the husband: see the wife’s affidavit filed 22 June 2022, paragraph 16.
Sham Marriages
In Hosking & Hosking (1994) 121 FLR 196, Lindermayer J considered whether the purpose of a marriage should impact on the validity of that marriage. Lindenmayer J concluded at [46] by saying:
Should a court ever be entitled to say that a party’s reasons for marriage are so improper that it declare their marriage void? The answer, in my view, must be a resounding ‘no’.
The effect of this authority is that even a “sham” marriage, if entered into in accordance with the Marriage Act, is a valid marriage under the Act.
There has been some discussion as to whether this is the correct outcome in cases where the parties never intend to live as husband and wife, but enter into the marriage as a pretence or sham. Indeed, Judge Learned Hand in United States v Rubenstein (1945) 151 F (2d) 915 was of the view that such arrangement is such that they never truly agreed to marry at all. The approach taken in Australia was explained by Professor Bromley on the basis that the English Courts took this view to address the problem of marrying simply to obtain a collateral advantage by applying the law in such a way as to “saddle” them with the consequence of marriage: see PM Bromley, ‘The Validity of “Sham Marriages” and Marriages Procured by Fraud; Johnson (Falsely Called Smith) v Smith’ (1969) 15 McGill Law Journal 319, 322. However, as Romer LJ said in Nachimson v Nachimson [1930] P 217, at 244:
[I]f a man should persuade a woman to marry him, her intention being to form a union for life, and his being, unknown to her, to form a union for a day or two, I see no reason why the Courts of this country should assist him in his nefarious scheme by refusing to recognize the validity of the marriage.
Marriages in the context of circumstances of the types described by the wife in this case were the subject of Professor Wade’s article: Wade, J “Marriages of Convenience in Australia” (1980) 11(1) Federal Law Review 84. Professor Wade argued that such marriages may be “invalid” as opposed to “void” although went on to say (at 90) the “it is very unlikely that judges would create such a distinction between void and invalid marriages”. This argument appears to have been quite speculative and does not appear to have been taken up in the cases over the last 40 years
Professor Parkinson also argues for a more liberal interpretation of the provisions in such cases in light of modern attitudes to marriage and criminal law statutes defining “forced marriage” as a marriage entered into “without freely and fully consenting”: see Parkinson, Patrick, “Tricked into Marriage” (2018) 42 Melbourne University Law Review 117.
In the context of the Migration Act 1958 there is an extended definition of “spouse”, in s 5F, which requires not only marriage, but also “a mutual commitment to a shared life” and various other indicia. The existing law focuses upon the consent to the act of marriage itself (the marriage ceremony and consequent change in legal status) not the intentions of the parties as to the nature of their relationship. This must be the case, as parties are not free to simply choose to treat a marriage as being at an end (as they would be with a sham contract), but must petition the court for divorce orders. The Full Court of the Federal Court observed, in He v Minister for Immigration and Border Protection [2017] FCAFC 206; 255 FCR 41 at [51] that:
The definition seems designed principally to avoid sham or contrived marriages being used to obtain the grant of visas. The conditions the persons must have are a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship be genuine and continuing are impressionistic and evaluative ... (Emphasis added.)
Although, as Allsop CJ identified in Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5; 236 FCR 303 at [3], the Tribunal in that case “elevated love or tender emotion as a factor in the evaluation that does not find reflection in the Act, regulations or proper evaluative process thereunder.”
The difference between the traditional authorities and the more modern arguments can be seen as a difference in focus upon whether the marriage is seen as the act of marrying (in the sense of participating in the formalities necessary to effect a marriage) and the change of status that flows from that act, or should be seen from the perspective of whether the parties intend to enter into a relationship of a type that conforms to current norms concerning the nature of marriage. Many marriages are quite ‘transactional’, and in centuries past marriages between nobles were commonly transactional.
I am not persuaded that the existing law should be departed from with respect to marriages that are entered into for appearance, provided the act of marriage itself is valid.
Thus, the wife’s case is limited to the argument that she only consented to marry as a result of duress.
Duress Claim
Section 23B(1)(d) of the Marriage Act provides that a marriage is void where, inter alia:
23B Grounds on which marriages are void
…
(d) the consent of either of the parties is not a real consent because:
(i) it was obtained by duress or fraud;
Cogent evidence must be given before a presumption of consent can be rebutted and a marriage annulled if, as here, an adult has gone through a public ceremony giving all the indications of consent: see Cooper (falsely called Crane) v Crane [1891] P 369 at 375-377, and more recently Azmi & Shinde [2014] FamCA 824.
The test for duress as described by Watson SJ in the case of In the Marriage of S (1980) FLC 90-820 adopted the term “oppression” as the meaning of “duress”, with his Honour concluding that:
A sense of mental oppression can be generated by causes other than fear or terror. 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.
Thus, Watson SJ concluded that the wife in that case had established duress as she had been “caught in a psychological prison of family loyalty, parental concern, sibling responsibility, religious commitment and a culture that demanded filial obedience”. Notably the wife was only 16 years old and had been brought to Australia from Country C when she was 8 years old. As there had not been direct threats or violence directed at the wife in that case, the decision broadened considerably the test that had previously applied (see generally Riethmuller and Smith, Family Law (Thomson Reuters, 7th edition, 2022) at [5.170]).
In the later case of Teves and Campomayor (1995) FLC 92-578, Lindenmayer J concluded at 81,737 that:
[I]t can be said 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.
Thus, in Hamwi & Omar [2012] FamCAFC 174 the Full Court referred more accurately to whether the wife’s will had been “overborne” (at [28]). Similarly, in Sarvari & Atapati [2017] FamCA 928 at [15], the Court considered whether the will of a spouse had been overborne.
As Professor Parkinson notes (in the article referred to above) there are a number of statutes and Conventions that now use the words “full and free” rather than “duress”. However, the Marriage Act has not been so amended.
In the present case there is conflicting evidence as to the reasons for the marriage. On the version given by the wife she was subject to a threat that her partner, Mr Farrah, would leave her when she was pregnant. However, her affidavit as to the timing of this threat must be wrong, given the date of the husband’s arrival. The wife does not address what support she would have received from her parents (who she says attended her religious marriage to the husband) nor her entitlements to social security (which one would expect she would have had some knowledge of given that she had attended high school in Australia).
On the evidence of the husband and Mr Farrah, there is a version of the wife having had each of the two brothers as lovers and being torn between them until a family solution was suggested (or directed) by the husband’s father. However, the version of the brothers does not explain why there would have been a marriage to the husband, if the events unfolded as they suggest.
The wife’s evidence goes no higher than a threat by Mr Farrah to end their relationship when she was in the early stages of pregnancy. The wife gives no evidence in her affidavit filed 22 June 2022 of the impact upon her of the threat to end the relationship, such as details of what she feared if the relationship was broken off and Mr Farrah did not support her or the child, in the context of a case where she had a sufficient relationship with her parents such that she invited them to the ceremony, and they attended, and she was living in Australia where she has access to social security. Nor does she address, in other than a superficial manner, the reality that she appears to have entered into the marriage in order to participate in a conspiracy to perpetrate a visa fraud.
More generally, if a mere threat of separation were sufficient to overbear someone’s will in the context of marriage, many marriages would be void. Here the evidence goes further by showing that the wife was pregnant at the time. However, little else is addressed. In the context of this case the threat of separation has not been shown to be such as to overbear wife’s will, even bearing in mind that she was pregnant at the time.
Ultimately, I am not persuaded on the evidence as presented, that on the balance of probabilities the wife entered into the marriage as a result of duress within the meaning of s 23A(1)(c) of the Marriage Act.
I must therefore dismiss the application.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 21 April 2023
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