Damus & Anders
[2024] FedCFamC1F 419
•26 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Damus & Anders [2024] FedCFamC1F 419
File number(s): ADC 4829 of 2023 Judgment of: BERMAN J Date of judgment: 26 June 2024 Catchwords: FAMILY LAW – NULLITY – Application for decree of nullity – Application for Divorce – Where the applicant asserts that she was under duress at the time of marriage – Where the respondent seeks an order for divorce – Where the applicant concedes that if the decree of nullity fails, the divorce order should be made – Consideration of duress – Application dismissed – Order made for divorce. Legislation: Family Law Act 1975 (Cth) s 51, 55A
Marriage Act1961 (Cth) ss 23, 23B
Cases cited: Cooper v Crane [1891] P 369
Anders & Damus (No 5) [2024] FedCFamC2F 198
S & S (1980) FLC 90-820
Thorne v Kennedy [2017] HCA 49
Division: Division 1 First Instance Number of paragraphs: 63 Date of hearing: 20 June 2024 Place: Adelaide Counsel for the Applicant: Litigant appeared in person Counsel for the Respondent: Litigant appeared in person ORDERS
ADC 4829 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DAMUS
Applicant
AND: MS ANDERS
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
26 JUNE 2024
THE COURT ORDERS THAT:
1.The Initiating Application filed 4 April 2024 is dismissed.
UPON NOTING THE FOLLOWING:
A.The only child of the marriage, as defined in s 55A(3) of the Family Law Act 1975 (Cth) (“the Act”), who has not attained the age of eighteen years is X, born 2019;
B.That s 55A(b)(i) of the Act is satisfied namely, that proper arrangements have been made for the care, welfare and development of the child.
IT IS FURTHER ORDERED THAT:
2.A divorce order be made with such order to take effect and terminate the marriage solemnised in early 2020.
3.The divorce order will take effect one month from today.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
By Initiating Application filed 4 April 2024, Ms Damus (“the applicant”) seeks a declaration of nullity pursuant to s 23B(1)(d)(i) of the Marriage Act 1961 (Cth) (“the Marriage Act”) that her marriage to Ms Anders (“the respondent”), solemnised at Suburb L in the state of South Australia in 2020, be declared null and void.
The Initiating Application is to be considered against the background of the respondent filing an Application for Divorce on 14 October 2023. The applicant filed a Response to Divorce on 25 January 2024 (“the Response”) seeking that the Application for Divorce be dismissed on the following basis:
In accordance with s 23B(1)(d)(i) of the Marriage Act 1961, I believe the marriage is void as my consent to the marriage was obtained by duress and is therefore not real consent.
The applicant concedes that should the Court dismiss the Application for a decree of nullity then the Application for Divorce can be heard, but in her Response, she asserts that she does not consider the respondent to be a parent to X born 2019 (“the child”).
At paragraph 24 of the Response the applicant contends that the respondent should not be considered as a parent to the child on the basis that at all material times, but in particular at the time of conception, the parties were not in a true de facto relationship.
The current arrangements between the parties for the future parenting of the child is provided for in final orders made on 9 February 2024 (ADC4751 of 2022). The final orders provide for the child to live with the respondent and spend time with the applicant each alternate weekend from Friday to Sunday and on the intervening Tuesday nights.
If it is the applicant’s contention that a divorce order should not be made in circumstances where there are not proper arrangements for the child, then if the applicant’s contention is correct, then the child would not be a child of the marriage for the purpose of s 55A of the Family Law Act 1975 (Cth) (“the Act”) which provides as follows:
(1)A divorce order in relation to a marriage does not take effect unless the court has, by order, declared that it is satisfied:
(a)that there are no children of the marriage who have not attained 18 years of age; or
(b)that the only children of the marriage who have not attained 18 years of age are the children specified in the order and that:
(i)proper arrangements in all the circumstances have been made for the care, welfare and development of those children; or
(ii)there are circumstances by reason of which the divorce order should take effect even though the court is not satisfied that such arrangements have been made.
If the child is not a child of the marriage, then only s 55A(1)(a) applies however, if the child is a child of the marriage having regard to the final parenting orders, I am easily able to find that s 55A(1)(b)(i) of the Act has been satisfied.
BACKGROUND
The parties appeared before me as self-represented litigants. The evidence upon which the applicant intends to rely is set out in her affidavit filed 4 April 2024. The respondent, in opposing the decree of nullity, relies upon her affidavit filed 7 May 2024.
Both parties were keen for the proceedings to be resolved and as such there was a concession that the Application for Nullity and, if unsuccessful the Application for Divorce could be heard and determined on the papers.
The applicant is a self-employed carer. She assists people with complex needs.
The respondent is employed as a professional and works full-time.
The parties met in or about late 2013.
The applicant says that the respondent commenced exerting control over her with overwhelming entreaties of love. The applicant considers that she was “naïve and vulnerable”, was inexperienced in adult relationships and considered that even at the early stage of their relationship there were signs of coercive control perpetrated by the respondent involving the applicant being coerced into having aggressive sexual intercourse, opening a joint bank account, sharing of passwords for social media and her observation of the respondent slapping her brother on the arm.
From the standpoint of the applicant, the more serious issue arose with the respondent receiving a terminal illness diagnosis. The prognosis was initially poor, and the applicant complains that she was treated poorly during this period with the respondent using her diagnosis to manipulate her. She says in her affidavit that:[1]
I was expected to chauffeur her to appointments and social gatherings, to disregard my job and move my shifts around to suit her social life, do all the housework, do all the cooking, and be her emotional support person. The respondent was not appreciative in any way for the support I have her and in fact acted intitled (sic) and abusive towards me.
[1] Applicant’s affidavit of 4 April 2024 at page 9.
The applicant further alleges that on 15 April 2015, the respondent slapped her face.
The alleged duress increased in intensity from April 2018 with the respondent allegedly placing significant pressure on the applicant to cement the relationship with the parties to have a child and to marry.
The applicant returned a positive pregnancy test in 2018 which was then the catalyst for wedding plans to commence.
The child was born in 2019. The birth certificate records the applicant as the child’s mother and the respondent as a co-parent. As discussed, the applicant does not accept that the respondent should be considered as a parent to the child in circumstances where they were not in a de-facto relationship at the time of conception.
The applicant considers the lead up to the wedding as an important consideration.
At paragraph 33 the applicant summarises her state of mind:
After [the child’s] birth, the respondent coerced me into proceeding with getting married after she had already forced me to book a venue. I did not freely and fully consent to the married as I had been controlled for many years and did not believe saying “no” was realistic option.
The parties were married in early 2020.
The wedding comprised of five members of the applicant’s family and eleven members of the respondent’s family.
The applicant has reviewed the wedding arrangements and considers that the imbalance in the family member attendance was an example of the power imbalance between the parties.
On the day of the wedding, the child was very young.
The applicant stayed overnight with her bridesmaids as did the respondent with her bridesmaids. The morning of the wedding was what might be considered a traditional start to a wedding day in that it comprised each of the parties having their hair done, makeup and in relation to the applicant, caring for the child. The applicant’s affidavit is silent as to the events that enabled the marriage to be solemnised.
For her part, the respondent recollects that the early days of the relationship of the parties were happy. The respondent acknowledges that she proposed marriage to the applicant in late 2014 with the knowledge that a same sex marriage was not then possible.
The respondent denies that the applicant displayed discomfort, upset or reluctance at the prospect of the parties eventually getting married. It is suggested by the respondent that the applicant wrote her wedding vows.
The parties initially lived in rented accommodation in Suburb M and in 2016 purchased a property in Suburb N. The property was sold in 2021. The respondent considers that the parties intended to build their own home.
The respondent agrees that the applicant presented with mental health issues and was under medical care and NDIS financial support.
The parties are not agreed as to the nature of their sexual relationship prior to marriage. The applicant argues that the respondent was sexually controlling whereas the respondent states that she was under pressure from the applicant to engage in sexual intimacy on a more regular basis.
The respondent annexes numerous text message exchanges between the parties which sets out the detailed discussions between them as to the wedding plans, the guest list and their separate bridal showers.
Following the marriage, the parties recognised that they had serious relationship difficulties and commenced counselling in early 2021. The parties separated on 20 July 2022, although there is some argument by the applicant that the date of separation should be considered as 1 August 2022 when the respondent moved out of the matrimonial home.
LEGAL PRINCIPLES
It is implicit in the presentation of the applicant that there was a decision by each of the parties to marry. The question is whether the parties came to it by their own free will or was the respondent under duress. Section 51 of the Act sets out that an Application for a Decree of Nullity must be based on the grounds that the marriage is void. A void marriage is of no effect in law. It is not a marriage at all, whether or not a decree declaring it void has been pronounced. The decree is simply a declaration that confirms the fact that there was never a valid marriage.
The grounds for a decree of nullity of marriage as set out in s 23 and 23B of the Marriage Act. The grounds under s 23B are as follows:
Grounds on which marriages are void
(1) A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 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 did not understand the nature and effect of the marriage ceremony; or
(e) either of the parties is not of marriageable age;
and not otherwise.
In the circumstances of this case, the only ground relied upon is that the consent of the parties was not real consent because it was obtained by duress. I do not need to find that both parties were under duress. I am able to find that it is appropriate for there to be a declaration of nullity even if only one party’s consent was not considered real consent.
Duress
In the decision of Cooper v Crane [1891] P 369 at page 375-377, the following is said:
On these facts, is the petitioner entitled to a decree? On the one hand, it is clear law that if she did not in fact consent to the marriage, the Court will declare it null. On the other hand, when a person of full age and of sound mind has gone through the ceremony of marriage publicly in the presence of witnesses who discovered nothing in her demeanour to suggest constraint, and has herself complied with the formality of signing her name and answering questions without apparent difficulty or confusion, very clear and cogent evidence must be given before the presumption of consent can be rebutted and the matter annulled...In order to hold that the ceremony so performed was not binding, I think I should have to infer as a fact one of two things - either that she was so perturbed by terror that her mind was unhinged and she did not understand what she was doing …or that though she understood what she was doing her powers of volition were so paralysed that, by her words and acts, she merely gave expression to the will of the respondent and not her own.
The decision of S & S (1980) FLC 90-820 involved a young woman of Egyptian origin who submitted to an arranged marriage due to the coercion of her family. In the circumstances of that case, Watson J held at 75,178:
… She was caught in a psychological prison of family loyalty, parental concern, sibling responsibility, religious commitment and culture that demanded filial obedience… If she had “no consenting will”, it was because these matters were operative – not threats, violence, imprisonment or physical constraint.
His Honour went on to say at 75,179 as follows:
The emphasis on terror or fear in some of the judgments seems unnecessarily limiting. 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.
He said at 75,177-8:
When the ordinary man says he is acting under duress it is usually the element of oppression that is uppermost in his mind, not necessarily the form of that oppression be it constraint, threat or otherwise. It is the effect of oppression on his mind that should be the operative factor, not the form of such oppression.
Finally, his Honour went on to say at 75,179:
I cannot see how I can read down the natural and ordinary meaning of “duress” as equated to “oppression” or “coercion” to such a degree that there is to be no annulment where the lack of real consent arises from non-violent but nevertheless controlling parental coercion.
In Thorne v Kennedy [2017] HCA 49, the plurality of the High Court summarised the relevant principles as follows:-
26.The vitiating factor of duress focuses upon the effect of a particular type of pressure on the person seeking to set aside the transaction. It does not require that the person's will be overborne. Nor does it require that the pressure be such as to deprive the person of any free agency or ability to decide. The person subjected to duress is usually able to assess alternatives and to make a choice. The person submits to the demand knowing "only too well" what he or she is doing. As Holmes J said in Union Pacific Railroad Co v Public Service Commission of Missouri:
“It always is for the interest of a party under duress to choose the lesser of two evils. But the fact that a choice was made according to interest does not exclude duress. It is the characteristic of duress properly so called.”
Evaluation
I have given careful regard to the matters raised by each of the parties but in particular, the applicant who carries the burden of establishing on the balance of probabilities that by reason of duress or oppression her consent to the marriage should not be considered as a real or true consent.
For reasons that are not explained, the applicant does not set out in detail the circumstances of the ceremony on the day of the wedding.
I am satisfied that the applicant knew and understood that she was consenting to a marriage ceremony solemnised by an authorised person.
The gravamen of matters relied upon by the applicant are asserted to span a period from the date of commencement of their relationship in 2014/2015 to the date of marriage in early 2020.
The applicant did not produce any evidence as to her functioning or documents that would establish that arising out of the alleged behaviour, and conduct of the respondent, she felt either compelled to go through with the marriage or was not able to refuse to participate.
I am not satisfied that the applicant has established that the relationship with the respondent involved domestic or family violence as an ongoing and enduring factor.
I am not able to determine, based upon the affidavit material of the parties, that family violence was perpetrated by the respondent. There are denials to the applicant’s allegations and there is no evidence which would enable a finding that the respondent coerced the applicant by overwhelming protestations of love and affection.
The parties are in significant disagreement as to the nature of their intimate sexual relationship. I am not able to determine which version of the events more properly reflects the lived experience of each of the parties. It is however, a complex consideration that in some way the applicant considered she was coercively controlled by the respondent in terms of her alleged sexual demands. As set out by the respondent, she contends that it was the applicant who was the more sexually interested party.
The aspect of the respondent’s medical diagnosis, treatment and prognosis is more problematic for the applicant. It is not suggested that the respondent exaggerated her medical circumstances nor am I able to find that the extent to which the applicant may have assisted the respondent in her care could in some way support a finding that the diagnosis could be considered as a “power imbalance” which enabled the respondent to persuade the applicant to do her bidding but, in this case, to ultimately lead to the applicant entering into a marriage that she resisted.
I do not accept that the apprehended power imbalance in favour of the respondent was further corroborated by the unequal guests lists of each of the parties who attended the marriage ceremony.
The respondent sets out that the applicant was an active participant in the planning of the marriage and I note the text message exchanges between the parties as set out in her affidavit at paragraphs 37 to 43 inclusive.
The applicant makes much of her involvement in the care of the child during the day leading up to the ceremony. I am uncertain as to the purpose of the child’s involvement but again, there is no consensus on the events of the day of marriage. The respondent denies that the applicant had been caring for the child and in the circumstances of this case, I am not able to make a clear finding on the evidence.
It appears likely that the parties entered into the marriage ceremony with the intention of it representing a continuation of their relationship albeit as a married couple. The events leading up to the marriage appear unremarkable and are consistent with what would ordinarily be expected namely that the parties were in happy anticipation of the nuptial event.
I do not consider that the applicant was forced to marry, nor do I find that her preferred position was that a ceremony not occur but that she felt in some way compelled to do so by the general circumstances or in particular, the alleged behaviour and conduct of the respondent.
Whilst not a matter that is necessary to decide, it appears that the catalyst for the Application for a Decree of Nullity was in response to the Application seeking a Divorce Order.
As such, I do not consider that there is any aspect in respect of the applicant’s decision to marry that could be said was promoted prompted or occasioned by duress.
I have regard to the following passage in the decision of Judge Brown in Anders & Damus (No 5) [2024] FedCFamC2F 198 which describes the nature of the parties relationship in the following terms:
25.The parties were in a very committed relationship with one another for some years prior to [the child]’s conception. They lived together. They purchased a home together. After [the child]’s birth they married one another as they were able to do after the legislation was changed. There is no doubt that they were partners and spouses in every legal and emotional sense of the word.
The evidence presented is entirely consistent with his Honour’s findings.
As such, I propose to dismiss the application. In doing so, there is agreement between the parties that I should then determine the Application for Divorce.
For the reasons that I have given, I find that the marriage is proved, that the parties were at all material times Australian Citizens and that the ground for the Application for a Divorce Order namely, that the marriage has broken down irretrievably, is proved.
I have considered the circumstances of the child and I find that s 55A(b)(i) of the Act is satisfied.
I make orders as appear at the commencement of these reasons.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 26 June 2024
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