Darnith and Harshani

[2011] FamCA 1007

FAMILY COURT OF AUSTRALIA

DARNITH & HARSHANI [2011] FamCA 1007

FAMILY LAW – Nullity – Applicant marries respondent when respondent has a decree nisi which has not been made absolute.  Marriage is void.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Amendment Act (2005)
Marriage Act 1961 (Cth)
Matrimonial Causes Act 1959 (Cth)

Armstrong and Armstrong [1962] VR 452
Psaltis and Schultz [1948] HCA 31; (1948) 76 CLR 547

APPLICANT: Ms Darnith

RESPONDENT: Mr Harshani

FILE NUMBER: MLC 1556 of 2010

DATE DELIVERED: 15 December 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 30 November, 1 & 12 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Durai

SOLICITOR FOR THE APPLICANT: Ravi James

THE RESPONDENT: In Person

Orders

1. Pursuant to section 51 of the Family Law Act 1975 (Cth), it is declared that the marriage solemnized on …2006, Suburb C in the State of Victoria between the applicant shown in the marriage certificate as Ms Darnith and the respondent shown in the marriage certificate as Mr Harshani is void on the ground that as at that date, the respondent was not eligible to marry.

2. The application of the wife filed 30 June 2011 and the response of the husband filed 11 July 2011 are otherwise dismissed save as to issues of costs.

3. That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 10 January 2012 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 24 January 2012 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.

IT IS NOTED that publication of this judgment under the pseudonym Darnith & Harshani is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1556  of 2010

Ms Darnith

Applicant

And

Mr Harshani

Respondent

REASONS FOR JUDGMENT

1. Ms Darnith (“the wife”) married Mr Harshani (“the husband”) in 2006 in a civil marriage ceremony in Australia.  The wife now seeks a decree of nullity on the ground that the marriage was void.

2. The proceedings began on 30 November 2011 with both seeking the same order, albeit on different grounds.  The proceedings were hotly contested as to the facts.  On 5 December 2011, the husband discontinued his application for orders to annul the marriage but he continued with the rest of his application. 

3. Leaving aside ancillary orders sought by both parties, the two questions to be answered about the wife’s nullity application were:

   (a)had a decree absolute been granted by a Country B court entitling the husband to remarry in 2006?

   (b)If the husband had been granted a decree nisi but not a decree absolute in 2006, was he eligible to marry?

   The second question requires consideration of the law in Australia as to the conjugal status of a person between decree nisi and decree absolute (noting that now in Australia, the law affecting persons divorcing is set out in s 55 of the Family Law Act 1975 (Cth) (“the Act”).

4. I find a decree absolute had not been granted.  The law in Australia is and was at the relevant time in 2006 that a person who does not have a decree absolute is not eligible to remarry.

5. I find the ground alleged by the wife proved.  I find the marriage was void.  These are my reasons.

6. Litigation between the parties has also raged over parenting issues in the Federal Magistrates Court of Australia.  Initially, a divorce application was filed and it transpired that there was a dispute about the marriage itself.  That led to the proceedings for the nullity of the marriage being heard in this Court.

7. The material relied upon by each party is set out in the annexure to these reasons. 

8. The wife was the applicant and the husband the respondent.  The wife was represented by counsel and the husband, self-represented.

9. I accept that the husband is an excitable man who has apparently completed a law degree.  His excitable and vociferous nature distracted him from the critical evidentiary issues needed to test the ground required to be established by the wife.  It also affected his own application.  He made an application that I disqualify myself and set out a number of grounds upon which I then ruled.  It is not unusual to hear and determine such disqualification applications but they should be argued with a careful eye to the facts.  That did not happen here.  I rejected his application.  If he is to practice law in Australia, he will need to be more cautious about what he asserts.  The husband randomly and inappropriately made accusations of fraud by the wife, of lying by her solicitors (both past and present) and of some form of public misfeasance by court staff and as he said “maybe even a judge”.  He said he had strong evidence to prove his claims but produced nothing other than a series of letters which were confusing and irrelevant.  Lawyers and particularly those involved in emotionally-charged family law proceedings, need to retain their objectivity.  The husband had little objectivity albeit that it was his own case.  The relevant professional body might contemplate the husband’s suitability if he desires to practice as a lawyer.

10. Although she was represented by lawyers, the wife knew what evidence she had to establish.  I am satisfied that she set out obtaining the necessary proof in a logical way.  There was a strong ring of reality about her case. 

11. The wife’s ground was that on 16 November 2006, the husband was a man who had been granted a decree nisi by the District Court in City D, Country B but that the decree had not become absolute.  The evidence supports such a finding.

12. When the proceedings began, the husband’s case was that the wife obtained his consent to the marriage by making a fraudulent misrepresentation as to her conjugal status and by non-disclosure as to her true intentions.  Having cross-examined the wife for some hours, he went away and filed the discontinuance notice.

13. I digress momentarily to mention other orders sought by both parties.  The wife sought a declaration that if the husband was free to marry, the marriage was void because the husband did not “contract same genuinely but to cheat her to gain advantage for himself”.  There was no evidence to support that assertion and it was not a proper ground in any event. 

14. Further, the wife sought an order that the husband be restrained under s 118 of the Act from filing “any further application to courts” without permission. Despite my concerns about the lack of objectivity of the husband, there have been proceedings in the Federal Magistrates Court of Australia and in my view, it is a matter more properly considered by that court. Counsel for the wife submitted such an order could be made which would preclude the husband appealing except with the Full Court’s permissions. That submission was misguided. As I pointed out, there is a distinction between a vexatious litigant and a misguided one. The husband falls into the latter category. No evidence before me suggested an order was justified.

15. In respect of his ultimate application for orders, the husband asserted that the wife and a variety of other named persons had violated Australia’s migration laws and should be referred to the relevant Commonwealth authorities.  To the extent that there is an inherent power in the Court to refer potential breaches of the law which become apparent from the evidence, this is not a case here where I should take any such step.  A number of accusations were made, most of which were only put to challenge the credit of the wife.  The wife generally denied any wrongdoing.  I could not find on the balance of probabilities that she had.  In respect of the other persons so named by the husband, no evidence was given by them or about them and I propose to ignore any assertion by the husband of any wrongdoing on the part of those people.  They certainly were not given an opportunity to be heard.

16. The husband also sought orders that the wife’s previous solicitor be referred to the Legal Services Commissioner.  He sought that a variety of people including the wife’s previous solicitor, be reinstated as respondents to these proceedings.  Earlier in the year, I removed the solicitor as a respondent named on the husband’s response over objection from the husband, made costs orders against him and gave reasons.  The husband did not appeal.

17. This was another example of the husband’s loss of objectivity.  There was no basis put by the husband to reinstate those persons as parties as no known cause of action was pleaded against them.  I have earlier mentioned my concerns about the husband’s behaviour insofar as he seeks to be a lawyer.  He is quick to make allegations of perjury and fraud.  Those are serious allegations and I saw no objective of evidence that would support them.

18. The husband also asked the Court to declare the wife a “vexatious or frivolous litigant”.  There was no indication of frivolity nor any evidence of a determination by the wife to embroil the husband in litigation.  The husband asserted that the wife was continuing the proceedings to get at him and his two daughters.  What that had to do with this case was mystifying.  The wife was focussed on the task; the husband was not.

19. One issue which consumed the husband was what he described as the wife’s failure to comply with orders about filing material for this application.  Much of his evidence in chief, as set out in his affidavit, referred to this point.  I had ordered the wife to file and serve her affidavit by 30 June 2011.  The husband said that he attended the Court on that day and was told by staff that no material had been filed by the wife.  Despite that, the documents I had before me were stamped by the Court as having been received on 30 June 2011 and the Court’s computer record system corroborated that. 

20. In cross-examining the wife, the husband put a number of irrelevant questions about when the letters relating to service of court documents were sent.  I asked counsel for the wife whether it was appropriate to call her instructor because the issue involved the husband’s assertion about conduct by court staff. 

21. Selvadurai Raveendian, who is the solicitor for the wife, gave evidence that his clerk took the documents signed by the wife on 30 June 2011 to the court.  They were filed but not immediately given back because of the solicitor having just changed address.  Whatever the technical problem was, it was then overcome and according to the solicitor’s evidence which I accept, the documents were posted to the husband.  Ultimately, it was the husband’s case that he did not receive the documents.  Despite that, he accused the solicitor of never having sent them.  I do not accept that was an appropriate accusation from someone who admitted that around that time, he went overseas.

22. In addition, in his oral application for me to disqualify myself, the husband said that someone in the Court had deliberately backdated the documents and also altered the computer entry.  Why someone would do that is puzzling but there is no evidence before me that I could find that was inconsistent with the date on the documents.  I find there was no irregularity.

23. The husband was aware of the requirement for the wife to file her documents by 30 June yet he took no steps to pursue them when he knew the wife had solicitors acting for her.  The husband knew of the wife’s solicitors involvement because he and they corresponded by email after 30 June.  When the wife was first sworn to give her evidence in these proceedings, the husband said he had not received her affidavit material.  Why he left it so late to complain was not clear but counsel then provided the husband with what was described as another copy.  The husband was then given time to consider the documents.

24. The husband’s documents too were concerningly disjointed.  In the affidavit filed by the husband, a significant number of annexures were apparently missing.  The husband insisted that they had been filed.  He said the court staff had been responsible for the stapling of the documents.  How that error could have occurred is mystifying because presumably the husband would have realised there was a significant number of pages missing when he went to serve the wife.  When searching for the missing documents, I located those same documents attached to an earlier affidavit of the husband even to the extent of the same unusual numbering system that the husband used.  All of this is hard to reconcile and I find the husband’s position implausible. 

25. After becoming aware during cross-examination of the wife of these missing annexures, the husband was permitted to include them whereupon objection was rightly taken by counsel for the wife.  I ruled virtually all of them inadmissible as irrelevant or hearsay. 

26. All of these documents were apparently tendered to show the wife’s conduct before the marriage (which all became irrelevant on the husband filing the discontinuance notice) or to show that she had illegally obtained documents about his court cases in Country B.  They were not probative of any such assertion.  These were examples of the husband’s lack of objectivity.

27. The husband also complained that he had been refused permission by a registrar to issue subpoenas to witnesses that he said were critical to his case yet he declined my invitation to apply for an adjournment. When he insisted that he had a right to call whatever evidence he wanted, I pointed out that I had made clear orders about the filing of affidavit material by witnesses and he had not complied. The clear inference from my order was that this was to be a trial where the evidence in chief was to be by affidavit. The husband gave no indication of a desire to comply. He did mention that he had already filed affidavits by these people earlier in the interlocutory proceedings but in fact, those “affidavits” were attachments to his own affidavit at that particular time. The Family Law Rules 2004 also make clear that affidavits are to be used only for the purposes for which they were filed.

28. Ultimately I looked at the documents which the husband said he had filed as affidavits and about which he said he would call evidence.  One such document was by his first wife.  It did not say anything about the decree absolute.  When challenged about that, the husband said he intended to lead further evidence and that would have had to have been by telephone from Country B.  No witness statement was proffered and counsel for the wife had not been told what this witness would say.  The other witness was a man who organised and attended the wedding.  His evidence about the critical two questions was not evident from his affidavit.

29. This is another example of the husband obfuscating.  Much time was therefore wasted.

30. The wife’s evidence also unnecessarily addressed irrelevant issues.  However, at least the critical matters were set out. 

31. The wife said she married the husband in 2006.  She said the husband had represented to her that he was divorced from his former wife and had separated from her well before 2004.  Whilst the evidence might have been more carefully worded, there could be no suggestion that the husband was misled by the wife’s statement.  She knew on the day of the marriage about the husband’s divorce only having recently taken place in Country B.  I accept her evidence. 

32. In paragraph 23 of the wife’s affidavit, she said she told the husband about her own divorce.  He did not challenge that piece of evidence.  In the same paragraph, the wife said he told her he was “divorcing” his wife.  That too was not challenged.  I find that there was a conversation in which the wife told the husband about her divorce.

33. The import of these two findings is that I am satisfied that the wife knew the husband was married when she met him but that she also knew he was seeking a divorce.  I am also satisfied that the husband knew the wife had been previously married and hence do not accept that he was shocked to find out the contrary after the marriage in 2006.  None of that evidence has anything to do with the two critical questions.

34. The wife referred to a Country B court directing that the husband’s decree nisi become absolute in 90 days.  One might expect she could only make such a statement from the decree document upon which she relied and that is how the husband put the proposition to her.  However, her response was that she had experienced divorce herself in Country B and had relatives who were lawyers as was her former husband.  There is importance in this because the husband’s evidence was that there were what he described as “special circumstances” in his divorce such as to have the Country B court abridge the normal 90 day period between the decree nisi and the decree absolute.  Unfortunately, no such evidence was produced by the husband. 

35. The wife attached to her affidavit, an English translation of a certified copy of the District Court proceedings in Country B along with separate custody proceedings documents.  The husband challenged the wife about the authenticity of the documents that had been translated and he called for the originals.  The wife’s response was that she had given the original decrees to the immigration authorities in Australia.  I accept that evidence. She did however produce another translation of a Country B document which bears the same detail. 

36. The husband cross-examined the wife about correspondence which had been sent to Country B authorities in which his court file was sought.  The husband asserted that the wife was endeavouring to get only part of the Court’s file to avoid exposing the issue of the waiver of the 90 day special circumstances point.  That correspondence showed no such thing.  To the extent that some “smoking gun” document was produced, it was certainly not translated into the English language.

37. The wife attached to her affidavit a court document which she had received from the Country B Consul in Melbourne who had in turn, received it from the District Court in City D in Country B.

38. The husband’s cross-examination of the wife did nothing to clear up any confusion. What emerged was that there were two cases in Country B bearing different numbers. One related to the husband’s divorce and the other seems to relate to children and financial issues. The focus of the husband was upon how the wife obtained these documents. In final address, he submitted that the wife obtaining them was against the law in Country B. No such evidence was called. In his address, he said the civil procedure laws dictated who had access to court documents. No such evidence was called. He submitted that as the laws had been broken, I should apply s 135 of the Evidence Act 1995 (Cth) and exclude the wife’s evidence. At that point, the evidence had already been admitted and he had cross-examined on it. He submitted that he had only just got the documents some days before and that was a breach of s 49 of the Evidence Act.  I am not satisfied that the first he knew of the documents only when the case began at the point when the wife was called.  To the extent that any waiver of time was required, I would so order.

39. Section 157 of the Evidence Act permits a court to admit documents of foreign jurisdictions.  The requirement is that the document must purport to be a copy of the public document and that it relevantly, purports to be an examined copy.  That is exactly what the document tendered purports to do.  For the reasons that follow, I am satisfied these documents were lawfully and properly obtained.

1. Under intense cross-examination, the wife distinguished between two documents relating to the husband’s divorce.  The distinction was that one was obtained in 2010 and the other in 2011.

2. An examination of the two shows a variation in the literal translation but not the substance.

3. The 2010 document was obtained through Australian lawyers.  The 2011 document came through a much more circuitous route.  The wife named some Country B lawyers who obtained a court decree which was then translated in Country B, certified and then sent to Australia where a further certification process occurred.  I find the certificate is an authentic certified translation of a document taken from the District Court in City D, Country B.

4. The form of this documentation was not new to the husband as he had seen it attached to previous affidavits.  Curiously, he admitted to having gone to Country B three times this year and when he went to the District Court he or his then-engaged lawyers could not search the file because it was “locked up” and he was told he had to apply to the court.  Why the wife had no difficulty during the same period was not explored.  The husband led no evidence of any application he made to the Country B court.

5. In pursuing all of this issue, the husband put to the wife that she was “lying” and that she had prepared documents through legal methods using the court process.  The wife denied those assertions and I accept her evidence.  The accusation did the husband no credit.

6. The husband probed how she got documents through bureaucrats and consular officials and the wife gave straight-forward answers.  In the end, the husband said the wife had not got any such assistance from the Country B authorities and by inference, she had concocted the whole thing.  These are matters which the husband could have taken up with those authorities but he produced nothing to suggest he had.

7. I find the wife was a focussed and careful witness who had gone to the trouble of getting lawyers to obtain the proof which the husband did not.  I accept the wife’s evidence.

8. The document produced by the wife is headed “decree nisi” and says that “unless sufficient cause be shown to the contrary against this decree nisi within three months (90 days) this decree nisi shall be made absolute”.  The decree is dated 27 September 2006.  The other pages of the record show a consistent outcome. 

9. In that proceeding in Country B, the husband was the respondent.  The document says a decree nisi was entered.  It records:

   Both parties take notice of the decree nisi.  According call to make decree absolute after furnishing a decree nisi. 

10. Below those particular words appear “07-1-19-” which when viewed in the context of other dates on the documents, must be read as 19 January 2007.  The record then shows “19-01-2007”, “decree nisi due” and “Cal (sic) to make same Absolute”.  There is then a reference to air travel but that is under a reference to “31-01-2007”.

11. At the end of the Country B court record, the following appears:

    Accordingly I make the decree nisi to be absolute.  Enter decree absolute. 

    SGD/MAR Marikkar Addl District Judge – [City D]

    31-01-2007

12. The document to which I have referred was in English from a translation signed by the Consulate of Country B.  The translation is dated 28 June 2011.

13. It was the husband’s evidence that his first wife handled the divorce and sought from the District Court an immediate decree absolute.  The record shows otherwise.  Importantly, he said that he came straight to Australia in October 2006 after the divorce in September.  He then added that he could not “exactly say” what happened without getting his file.  This was pure humbug.

14. As to the 90 day decree issue, the husband said:

    There may be a general rule that a normal divorce should go (sic) 90 days for absolute.  In our case, the due date was 29.12.2006.  Since I was out of the country the court had fixed a formal date in January 2011 (sic).  The special condition included into the order due to these special circumstances (sic).

15. The husband went further to say that the “long contested divorce case which finished in one day” and that his former wife consented to “allowing” him to continue the relationship with the wife in these proceedings.

16. To the extent that the husband alleged that something happened to create special circumstances to make the decree earlier than the 90 days, I do not find that that is what occurred.  There is no such evidence.

17. Insofar as the husband sought orders other than as to an annulment, his evidence was that he only discovered the wife’s previous marriage after he married her.  He said he conducted “further research” on the wife’s historical background and he received substantial amounts of details about that history through her friends, fellow students and relatives.  He then said:

    To amazement (sic), I have now got information that the wife has “never divorced”.   

    At no stage did the husband challenge the document that the wife produced to show that she was divorced in Country B.

18. It was the wife’s evidence that she applied to come to Australia and approval came through in about December 2004 but she then had to wait for a visa.  I accept the wife’s evidence that when she applied, she gave the Australian department a letter confirming she was divorced.  Confirmation that she had done so is corroborated by a letter which seems to suggest the “divorce records (court orders)” were released to her under freedom of information. 

19. The husband’s position was then set out in his affidavits.  He said he would never have married her if he had known that she was married and divorced earlier.  Obtusely, he made reference to the fact that this was something to do with culture and religion.  He said that the wife knew that what she was doing was wrong and that he trusted her and finally married her and produced a baby.  He said he sacrificed his academic, political and trade union work and his entire career was ruined.  He said he gave consent to the marriage with the mistaken belief that she was never married.  I reject all of that evidence.

20. The husband’s evidence was that in June 2011, the wife gave him a photocopy of the divorce certificate from her marriage and he said that it was not an authentic document.  I find that it is.

21. This Court is empowered to make a decree of nullity of marriage pursuant to s 51 of the Act on the ground that the marriage is void.

22. Section 23B of the Marriage Act 1961 (Cth) sets out an exhaustive list of the grounds upon which a marriage is void.

23. If a person marries when ineligible, the marriage is void.

24. A person who marries after being granted a decree nisi but before it becomes absolute is ineligible to remarry (see Armstrong and Armstrong [1962] VR 452).

25. “Decree nisi” and “decree absolute” are no longer terms used in the Family Law Act.  “Decree nisi” by its very translation means a court order that has no force until a particular condition is met.  As Dixon J (as he then was) observed in a breach of promise case in Psaltis and Schultz [1948] HCA 31; (1948) 76 CLR 547 at 559:

    A decree nisi for dissolution makes all the difference.  The marriage of course, subsists until decree absolute.

26. Upon the commencement of the Family Law Act, the relevant provisions regarding the effect of a decree nisi and the ability of parties to a marriage to remarry were as follows:

    s 54  Decree nisi in first instance

    A decree of dissolution of marriage under this Act shall, in the first instance, be a decree nisi.

    s 55 When decree becomes absolute

    (1) Subject to this section, a decree nisi made under this Act becomes absolute by force of this section at the expiration of a period of 1 month from the making of the decree or from the making of an order under section 63, whichever is the later.

    …

    s 59  Re-marriage

    Where a decree of dissolution of marriage under this Act has become absolute, a party to the marriage may marry again.

27. These provisions were amended in 2005 by the Family Law Amendment Act (2005) [No. 98 of 2005]. Divorce orders made under the Act since 2005 take effect pursuant to s 55, and s 59 has been amended accordingly:

    55  When divorce order takes effect

    (1)      Subject to this section, a divorce order made under this Act takes effect by force of this section:

    (a)at the expiration of a period of 1 month from the making of the order; or

    (b) from the making of an order under section 55A;

    whichever is the later.

    …

    59  Re‑marriage

    If a divorce order under this Act in relation to a marriage has taken effect, a party to the marriage may marry again.

28. Prior to the commencement of the Family Law Act, the Matrimonial Causes Act1959 (Cth) governed the granting of decrees nisi and absolute. The relevant provision of that Act regarding the point at which a party could re-marry was s 46, which stated:

    46Re‑marriage

    Where a decree of dissolution under this Act has become absolute, a party to a marriage may marry again as if the marriage had been dissolved by death.

29. The legislative history shows that the position in Australian law is that a party to a marriage may not remarry following the grant of a decree nisi but prior to the decree becoming absolute. That process is reflected in the Family Law Act as it currently stands, where a party may not marry prior to a divorce order becoming effective.

30. A person’s subjective belief as to whether or not they are already married as at the time of the ceremony of marriage is irrelevant.  The provision in the Marriage Act is absolute.

31. I find therefore that on the relevant date in 2006, the husband was not eligible to marry because the decree nisi granted by the District Court at City D had not been made absolute.

32. The wife’s application for nullity must succeed.

33. There is no evidentiary basis for any other orders sought by the husband or the wife for the reasons set out in paragraphs 13, 14, 15, 16, 17, 18 and 25 above.  Thus, the balance of the parties’ respective applications must be dismissed.

34. I raised with each party, the question of costs.  Each agreed that any such application should be in writing and determined in chambers.

DOCUMENTS RELIED UPON

Documents relied upon by the wife

1. The amended application filed 30 June 2011

2. The affidavit of the wife filed 30 June 2011

Documents relied upon by the husband

1. Amended response filed 11 July 2011

2. Affidavit of the husband filed 11 July 2011

3. The annexures to the affidavit filed 15 March 2011 by the husband

4. Notice of Discontinuance filed 5 December 2011.

I certify that the preceding Seventy Three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 15 December 2011.

Associate:

Date:  15 December 2011