Cisek & Ghanem

Case [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

  1. On 22 June 2022, the applicant wife…

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AGLC
Cisek & Ghanem [2023] FedCFamC1F 293
Case
[2023] FedCFamC1F 293
Decision Date

CaseChat Overview and Summary

The case of Cisek & Ghanem concerns a wife's application for a declaration that her marriage to her husband in 1999 is a nullity. The applicant, the wife, contends that the marriage was a sham arrangement designed to facilitate the husband's acquisition of permanent residency in Australia. The wife alleges that she was initially engaged to the husband's brother, Mr. Farrah, and was pressured by him to participate in the marriage with the husband. She asserts that she did so reluctantly and with the understanding that it was a mere formality. The wife claims that she did not share any marital relationship with the husband, and that they never lived together or had an intimate or sexual relationship. The Federal Circuit and Family Court of Australia was tasked with determining the validity of the marriage and the wife's claims.

The primary legal issue before the court was whether the marriage between the husband and the wife was a genuine union or a sham arrangement, and thus whether it was a valid marriage under the Marriage Act 1961 (Cth). The court had to consider the wife's evidence that the marriage was a sham intended to help the husband obtain residency in Australia. The court also needed to assess the wife's credibility and whether she genuinely believed the marriage was not legally binding, which would affect the outcome of the case. Additionally, the court had to examine the implications of the wife's prior engagement to the husband's brother and the role he played in orchestrating the marriage.

The court found that the wife's evidence was credible and that the marriage was indeed a sham arrangement. The court accepted that the wife genuinely believed that the marriage was not a legally binding union and that it was merely a means to help the husband obtain residency. The court noted that the wife's relationship with the husband's brother and the pressure she faced from him played a significant role in her decision to participate in the sham marriage. Based on this finding, the court declared the marriage to be a nullity, recognising it as invalid under Australian law. The court's decision was grounded in the wife's clear intention and understanding that the marriage was not a genuine union, and the absence of any marital relationship between the parties.

The court's final order declared the marriage between the husband and the wife to be a nullity. This declaration effectively nullifies the legal status of the marriage, recognising it as invalid and of no legal effect. The wife's application was thus successful, as she sought to have the marriage declared a nullity on the grounds that it was a sham arrangement. This outcome provides clarity on the legal status of the marriage and allows the parties to proceed with their respective lives without the constraints of an invalid marriage.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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