DAVE & KARIA

[2016] FamCA 414

FAMILY COURT OF AUSTRALIA

DAVE & KARIA [2016] FamCA 414

FAMILY LAW – NULLITY – where both parties seek a declaration that their marriage is null and void – where the parties are former citizens of India – where they allege to have been under immense pressure from their respective families and in fear of physical harm – where the parties alleged there was no real consent because the marriage was obtained under duress – where the Court finds the parties were not forced to marry – where the application is dismissed.

Family Law Act 1975 (Cth) s 51
Marriage Act 1961 s 23, 23B

Cooper v Crane [1891] P 369
S & S (1980) FLC 90-820

APPLICANT: Ms Dave

RESPONDENT: Mr Karia

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: SYC 8490 of 2015

DATE DELIVERED: 12 May 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Berman J

HEARING DATE: 12 May 2016

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

Orders

1. That the initiating application of the filed 23 December 2015 be dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8490 of 2015

Ms Dave

Applicant

and

Mr Karia

Respondent

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. On 23 December 2015, Ms Dave and Mr Karia, being the applicant husband and wife, filed an initiating application seeking orders that pursuant to section 23(1)(d)(i) of the Marriage Act 1961 (“the Marriage Act”), the marriage that was solemnised at Parramatta Registry Office on 13 December 2013 be declared null and void. What is being sought is a declaration of nullity of their marriage.

BACKGROUND

1. The application is supported by an affidavit of the wife and an affidavit of the husband.  The short history of the matter is that the wife was born in 1982 and is currently a resident of Australia and holds the position of senior consultant.  The husband was born in 1986, is also a resident of Australia and works in a professional occupation.  The parties currently reside separately and apart but under the same roof.  They came to Australia separately and by way of a 457 work visa in or about 2010.

2. Over the period of time, subject to the various changes in their employment projects and work arrangements, they have each determined that they would wish to remain as residents of Australia and have satisfied the necessary obligations to enable that to occur.  The parties agree that they commenced a live-in or de facto relationship in June 2013, namely, about six months prior to their marriage in 2013.  The parties, however, have a history that significantly precedes and predates both the commencement of their formal relationship and even possibly before their travel separately to Australia.

3. The parties had in India what has been perhaps inadequately described as a…