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 brother-sister type relationship, even though they are not of the same family and are not related biologically.  It is clear that they had a relationship of one sort or another over a long period of time.  They are not strangers to each other.  It is said by the wife that notwithstanding their friendship and, indeed, their relationship from June 2013, there were difficulties in her being accepted by the husband’s family.

4. She says that the parties belong to different cultures in India, that they are members of a different caste system, and that there are still prohibitions that apply.  In this case, there are significant issues that impact upon both the conduct of the parties and my determination of the issues, arising out of cultural norms and, as the wife says, the varying degree of family, relatives and society pressure that is brought to bear.  The parties variously talk of the trauma, pressure and stress that their relationship appears to have caused to the husband’s family and, consequently, the reaction from his family back on to the parties.

5. Perhaps in an overly emotive attempt to engender some support for the predicament that the parties say that they are in, they refer to the despicable circumstance of honour killing and the possibility of physical harm, assault, humiliation and abuse that they say has been the ever-present atmosphere in which their relationship has existed.  It is important to note the distinction between the parties.  It is the husband’s family from which the odium appears to emanate.  It is not the wife’s family.  She says she comes from Mumbai and from a relatively liberated family background.

6. The factors and the features that appear to impact upon the husband, and emanating from his family, are not matters that she would ordinarily have to face from her family.  Indeed, it is conceded by the parties that the pressure and duress that the wife says she was under in respect of the marriage ceremony is vicariously experienced.  I am not prepared to accept that the evidence is such that I would be entitled to find that there was direct threat in respect of the wife, but I am prepared to find that she may well have taken on board empathetically the pressure and concern the husband’s family had placed him under.

7. The wife says that the parties were under immense pressure to submit the notice of intention of marriage in 2013.  The history and circumstances leading up to the marriage is curious.  It must be accepted that the parties were in a de facto relationship from June 2013 to the date of their marriage.  Neither of the parties resiled from that position.  Indeed, in respect of the basis upon which the application is brought, the very fact of their live-in relationship, as they describe it, is a critical foundation to the argument.

8. The husband says that once his father and mother in particular, but equally other members of his family became aware that the relationship between the parties had developed from one that was a friendship to a de facto relationship, his father’s attitude, behaviour and demeanour changed significantly.  It is the husband’s position that he saw a different side of his father.  He says that his father was aggressive, was manipulative, became obsessed about the relationship that had developed between his son and the wife and put to the husband that the relationship was a disaster simply because of the cultural differences that existed between the parties.  In particular, there was focus on the difference in age, the wife being some three years or so older than the husband.

9. There is a suggestion in the affidavit material that the age difference might have an impact as to whether or not the parties, if their relationship continued, would result in child or children.  A good example of the considerations by the husband’s father is to be found at paragraphs 3 and 4 of his affidavit.  Upon the husband’s father finding out about the extent of the relationship, and during one of many telephone conversations that occurred, the husband records the following conversation from his father:

   How can I put some sense in you and make you understand that you are not doing any good being in a relationship with her.  You behave like a donkey.  In fact, a donkey will have more brains than you.

10. The husband is reported to have responded in the following terms:

    Please don’t scold me like this.  I am in this relationship because I love [Ms Dave].

11. His father’s response is as follows:

    How can you love her or look at her as a partner when you know she is elder to and you always said about her as your sister.  Aren’t you ashamed about your thoughts?  Your actions and behaviour will cause so much of shame on us.

12. And the husband’s response:

    We did not know we would like each other so close that we wanted to be partners in each other’s life.

13. The husband then reports that his father was shouting, made threats that he would come to Australia, break arms and legs and keep the husband in a corner for the rest of his life.  To his credit, the husband was prepared to stand up to his father and responded that he would bear the consequences of the relationship, particularly once he and the wife were better acquainted in terms of their ongoing relationship.  It is clear to me that what was opposed, and strongly so, by the husband’s father was not, at that stage, the concept of marriage but the very relationship itself.

14. The situation progressed over time.  I accept, as the months progressed to the date of the marriage ceremony, the husband was left in no doubt as to how his family, or at least his father, thought about the ongoing relationship.  At paragraph 9, the husband reports of an hour-long conversation that he had with his father and his mother which included the following:

    How can you think of having a live-in relationship when you know [Ms Dave] is of a different caste, elder to you and was also like a sister to you?  You have to leave that house right this instant.  You know live-in relationship without marriage is unthinkable to us, and if anyone in the society comes to know of this, we will not spare you.  We will disown you and every relation we have with you.

15. And again, to his credit, the husband said:

    Dad, it is normal in the country we are in, and I am not indulging in any uncalled for activities.  We are staying together so that we can spend more time together, and it should be our decision on this, whether we want to stay together before getting married to get to know each other enough to be ready to marry each other.

16. His father’s response was that:

    Your mind has been poisoned, [Mr Karia].  You are not able to even hear your own parents’ words.

17. I accept that the husband well understood the increasing anger, concern and desperation of his father and mother as they became aware that he was not prepared to accept their advice or their instruction.  The conversation, as reported in paragraph 9, is important.  It indicates that the husband well understood the opposition that his family had to his relationship with the wife, but was able to indicate clearly to his father that what he and the wife would ultimately do was a matter for them and that it was contemplated that their future actions may well involve getting married.

18. The issue, as far as the husband was concerned, was that it was a matter for the he and the wife as to where their relationship would develop.  I have no doubt that at least as far as the husband was concerned, but I also accept and expect the wife to be in no different position, that the parties were fond of each other, and that that relationship was based on love and affection and not pressure or coercion.  Paragraph 11 records that the husband and wife were under some duress from his parents but that they were reluctant to give in to the coercion.

19. They thought about how they would conduct themselves and determined that a way forward may well be to remove at least one of the concerns that appeared to be the focus of the husband’s parents, namely, the live-in relationship, and that this could be ameliorated by the parties getting married.  As is said in paragraph 11:

    We were compelled to think that signing a legal document is required for our relation to be acceptable by family and society in spite of the fact that we did not want to get married at this point in time.

20. It should not be seen that the parties had determined they would never marry.  It is that they considered it to be a distinct possibility but not at that particular time.  The timing becomes important.  The parties progressed with the marital arrangements.  They filled in appropriate forms with the Registrar of Birth, Deaths and Marriages in Sydney.  They underwent the usual identification and bona fides checks, and what they did was to put all of the foundation stones in place in respect of marriage, but they were not certain as to the date and the venue.  So much is said at paragraph 17 of the husband’s affidavit.

21. It appeared, however, that the husband’s family were not able to be easily pleased.  Paragraph 19 refers to the upset that the husband perceived in respect of his mother and father, and there was what the husband describes as the emotional blackmail of his father alleging that he was responsible for his mother’s deteriorating health.  The husband says that his father’s conduct was manipulative in that it was designed to have the husband return to India sooner rather than later.  I am uncertain whether the husband understood then or came to it later that he considered it was likely to be a ruse or a trick designed to get him to return to India, but in any event, that, combined with his mother’s ill health caused the parties to agree that the husband would have to return at some stage.

22. He did return some two days after the marriage ceremony.  The husband and wife would want the Court to understand that part of their thinking in terms of a marriage and ultimately a decision to bring forward any marriage plans to late 2013 was in part based upon their view that if they were married, then to the extent that any part of the adverse behaviour of the husband’s parents could be explained by his family’s concern at their de facto relationship – would be removed.  The parties are keen for the Court to understand that they were in fear of physical harm.

23. I am not prepared to accept that that fear was real and genuine in respect of physical harm that could come to them in Australia.  The parties are high functioning and highly intelligent individuals.  They had, by this time, been in Australia some few years and could not have thought that, realistically, there was any prospect or probability that the husband’s father or members of his family would travel to Australia with a view to assaulting, harming or killing either the husband or the wife.  That assertion, if indeed made by the parties, borders on the hysterical.

24. It is, however, the husband’s position that he feared returning to India might place him in close proximity to members of his family that could potentially act in the way that he and the wife were concerned about.  What he says is that he and the wife considered that by getting married prior to the departure for India on 15 December 2013 it may result in reducing some of the more strident concerns that his family expressed.  I am not satisfied that I can interpret or accept from the husband’s assertions as to his father’s behaviour and conduct that it was at all reasonable or credible for the husband. and the wife, to believe that the negative and disparaging attitude of the husband’s father towards the relationship and the wife, had changed.

25. Any decision for the parties to marry was a decision that they came to. The question is whether they come to it by their own free will or were they the subject of duress. Under s 51 of the Family Law Act1975 (Cth), an application for a decree of nullity of marriage 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.

26. The grounds for a decree of nullity of marriage are set out and found in ss 23 and 23B of the Marriage Act. The grounds under s 23B are as follows:

    (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 is mentally incapable of understanding the nature           and effect of the marriage ceremony; or

    (e)     either of the parties is not of marriageable age;

    and not otherwise.

27. In the circumstances of this case, the only ground relied upon is that the consent of the marriage of both parties was not real consent because it was obtained by duress.  I do not, however, 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 I were to find that one party’s consent was not real consent.  I say that because I am not satisfied that the vicarious nature of the perceived or alleged duress experienced by the wife is likely to satisfy the relevant test.

28. There is no evidence that she had any conversation with the husband’s father or indeed was aware of any issue raised by him other than that as reported to her.  She may well have accepted, because of her own understanding of the cultural circumstances that affect parties in India, that the matters as expressed to her by the husband had a ring of truth about them.  That is a different matter than the full impact of the denigration and threat and odium as apparently expressed by the husband’s family being experienced by her remotely.

29. 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.

30. The parties have quoted a decision of Watson J in S & S (1980) FLC 90-820. That case 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, his Honour held:

    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.

31. His Honour went on to say 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.

    …

    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 the oppression on the mind that should be the operative factor, not the form of such oppression.

1. And finally, his Honour went on to say:

   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 no annulment where the lack of real consent arises from non-violent but nevertheless controlling parental coercion.

2. I accept that duress does not necessarily mean or need a direct threat of physical violence, but that there must be sufficient oppression from whatever source to vitiate the reality of consent.  That has been the focus of my considerations in this case.  I have already indicated that the parties were clearly aware that the focus of the concerns of the husband’s family was the very relationship itself.  To the extent that the parties have attempted to persuade me that from November 2013 they perceived a change in the husband’s father’s attitude, namely, that he may well be in support of the relationship if the parties were to marry but not otherwise, and that that was the basis upon which they conceived the concept of marriage, is a proposition that I reject.

3. I am in no doubt that so fundamental were the husband’s parents’ attitude towards this relationship that their concerns transcended what might be considered as the relatively simple and straightforward opposition to the parties living unmarried and in a de facto relationship.  The concerns, as clearly expressed by each of the parties, are fundamental to each of them:  their cultural differences, their linguistic differences, their age differences and the fact that they had previously had a brother and sister friendship, relationship were all matters that were fundamental, and there appears no suggestion that the husband’s family were likely to change their entrenched and complete opposition to the parties’ relationship continuing.

4. Indeed, the husband acknowledges that he railed against his father’s opposition to the marriage or to the relationship and wanted to be free of that fetter so that he and the wife could explore their future together, whatever that may be.  If that is right, then it could not be said that there was clear and direct oppression of the parties in respect of undertaking their marriage.  The very nature of the opposition of the husband’s family was, in fact, the antithesis of a marriage.

5. It could not be said that the parties were coerced into marriage, if anything, the clear position adopted by the husband’s family was to totally oppose the relationship.  The narrow focus, then, is upon the matters that promoted the parties to determine to marry on 13 December 2013.  It may be that in the parties’ discussions, they considered a number of issues which might be improved by their marriage.  It may be that the negative attitude adopted by the husband’s family may have caused them to make decisions that a different set of circumstances may well have resulted in, but the decision made by the parties to marry was a decision that they came to by their own reason.

6. The husband was to return to India on 15 December 2013.  The parties thought that they may well be in a better position, and the husband may be able to ameliorate the concerns of his family if they were married.  They went through the ceremony.  They clearly understood the ceremony.  They had an opportunity to not go through with the ceremony.  It is not to suggest that the very concept of marriage was never a possibility for these parties at best, it was a matter of timing.  I find that whilst the parties brought to account in their decision to marry a range of considerations, not just in respect of their own personal relationship but also in respect of the concerns expressed by the husband’s family, in doing so, they acted no differently than many people do in terms of the decisions that they bring to bear that finally determines that parties will marry.

7. It could not be said that they were forced to marry.  What could be said, at the highest, is that the circumstances as created by the husband’s family caused them to think about marriage and cause the parties to consider getting married in circumstances where that may not have been their preferred position.  What cannot be forgotten is that the parties have a choice as to whether they went through the marriage ceremony or not.  They could have backed out.  They could have separated.

8. They chose not to do so.  The very fact that they had an option of not going through the ceremony and then putting themselves in a position that may have, in fact, been more acceptable to the husband’s family, namely, that the parties had separated, indicates that it could not be said that they were left without any option.  It was a perfectly viable and proper option, but not one that the parties were prepared to countenance.  In the circumstances of this case, I do not find that the consent to the marriage of either of these parties was not real consent.

9. I do not consider that there is any aspect in respect of these parties and their determination and decision to marry that could be said was promoted, prompted or occasioned by duress.  For those reasons, I refuse the application of the parties.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 12 May 2016.

Associate: 

Date:  30 May 2016