Fadel and Jarrah

[2014] FCCA 2313

FEDERAL CIRCUIT COURT OF AUSTRALIA

FADEL & JARRAH [2014] FCCA 2313

Catchwords:
FAMILY LAW – Contested divorce – consideration as to whether the parties were married.

Legislation:

Evidence Act 1995 (Cth), ss.153, 156

Family Law Act 1975, s.55A(1)(b)(ii)

Applicant: MS FADEL

Respondent: MR JARRAH

File Number: PAC 2015 of 2011

Judgment of: Judge Dunkley

Hearing date: 7 October 2014

Date of Last Submission: 7 October 2014

Delivered at: Parramatta

Delivered on: 3 November 2014

REPRESENTATION

Counsel for the Applicant: Mr Morley

Solicitors for the Applicant: Mahony Family Lawyers

For the Respondent: Self-represented

ORDERS

1. A Divorce Order is pronounced with respect to the parties’ marriage in Egypt on [omitted] 2002.

2. That Divorce Order to become absolute within one month.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2015 of 2011

MS FADEL

Applicant

And

MR JARRAH

Respondent

REASONS FOR JUDGMENT

1. This is the Judgment arising from the hearing of a contested divorce.

2. The parties involved in the hearing were Ms Fadel (the Applicant) and Mr Jarrah (the Respondent).

3. It was the Applicant’s case that the parties were married in Egypt on [omitted] 2002 in a religious ceremony that was then civilly registered with the Egyptian authorities on [omitted] 2002.

4. It was the Respondent’s case that the parties became engaged at a religious ceremony on [omitted] 2002 but were never married.

5. It was further the Respondent’s case that he was not one and the same person referred to in the “Copy of Marriage Entry” issued by the Arab Republic of Egypt, Ministry of Interior Civil Status Department[1].

   [1] Exhibit ‘A’

6. For those two reasons he opposed the making of a divorce order on the Application for Divorce filed by Ms Fadel on 20 February 2014.

7. Rhetorically one might ask “why oppose a divorce of a marriage that you say never occurred?” The Respondent was unable to articulate a coherent response to the rhetorical question perhaps due to language difficulties, English not being his primary language.

Documents

1. The Applicant relied on:

   a)Application for Divorce filed on 20 February 2014;

   b)Affidavit Translation of Marriage Certificate e-filed on 16 May 2014;

   c)Affidavit of Ms B affirmed 6 May 2014 filed on 8 May 2014;

   d)Affidavit of the Applicant sworn 25 March 2014 filed on 1 April 2014;

   e)Affidavit of the Applicant sworn 22 September 2014 filed on 22 September 2014; and

   f)Affidavit of Ms F sworn 9 September 2014 e-filed on 22 September 2014.

2. The Respondent relied on:

   a)Response to Divorce filed on 27 June 2014; and

   b)Affidavit of the Respondent sworn 26 September 2014 filed on 26 September 2014.

Exhibits

• A – Copy of Marriage Entry;

• B – Photocopy of the Respondent’s Egyptian Identification Card.

Conduct of the proceedings

1. The Respondent initially sought an adjournment as the determination of his appeal of his legal aid refusal was still outstanding.

2. His application for adjournment was dismissed for reasons pronounced at the time.

3. The Respondent was a self-represented litigant assisted by an Interpreter.

4. The Applicant was legally represented and was assisted by an Interpreter.

5. Each of the Applicant and Respondent were cross examined.

6. Ms B was cross examined.

7. The Respondent did not require Ms F for cross examination.

8. Part way through the proceedings the Respondent sought permission to issue a Subpoena to compel the Translator of the Marriage Certificate, Ms H, to give evidence. That application was dismissed. He also sought permission to file written submissions at the end of the proceedings. The permission was not granted.

Evidence

1. The Applicant was born in Egypt on [omitted] 1976.

2. The Respondent was born in Egypt on [omitted] 1964.

3. In 2002 the parties arrived in Australia.

4. Shortly after their arrival their daughter [X] was born on [omitted] 2002, their second child [Y] was born on [omitted] 2003 and their third child [Z] was born on [omitted] 2006.

5. The Applicant has lived in Australia continuously since her arrival into the country, regards it as her home and intends to live indefinitely in Australia.

6. The Applicant says the parties separated in April 2011 and have lived separately and apart since then. The Respondent does not dispute the date of separation, agreeing that they have lived together from [omitted] 2002 until April 2011 but so lived together as an unmarried couple.

7. On 6 May 2011 the Applicant filed an Initiating Application in the Family Court of Australia seeking final parenting orders. She filed a number of Affidavits in those proceedings asserting the parties were married in Egypt on [omitted] 2002.

8. The Respondent was for part of the parenting proceedings legally represented and never raised issue during the course of these proceedings that the parties were never married. He says this was because they were child related proceedings only.

9. At the end of those proceedings Justice Johnson on 21 February 2014 delivered a Judgment. At paragraph 23 of that Judgment his Honour made a number of findings.

10. His Honour found the parties were married on [omitted] 2002 in Egypt. His Honour found the parties separated in April 2011. His Honour also found since separation the three children had lived with the mother and had spent no time with the father.

11. On 21 November 2002 the parties registered their daughter [X]’s birth under the Births Deaths & Marriages Registration Act (NSW) 1995 and had recorded on that registration[2] they were married in Cairo Egypt on [date omitted] 2002.

    [2] A copy of [X]’s Birth Certificate is annexure ‘G’ to the Applicant’s Affidavit  sworn 22 September 2014

12. At the time of the birth registration the Respondent was using the name [Mr Jarrah]. He subsequently changed his name officially to Mr Jarrah.

Determination

1. The Respondent said he did not fully understand the question on the birth registration request and/or the form was completed with assistance from an unnamed person.

2. A copy of the Marriage Entry is an official Egyptian government document bearing an Egyptian Government seal. The original document is in Arabic. There is an English translation of the document in the Affidavit of Ms H sworn 8 May 2014. Ms H says she is a professional (Level 3) Arabic Interpreter and Translator, NAATI Translator ID [omitted].

3. I find she is an expert translator and accept her translation of the Marriage Registration document as being correct.

4. Section 153 of the Evidence Act 1995 (Cth) provides:

   Gazettes and other official documents

   (1) It is presumed, unless the contrary is proved, that a document purporting:

   (a) to be any government or official gazette (by whatever name called) of the Commonwealth, a State, a Territory or a foreign country; or

   (b) to have been printed by the Government Printer or by the government or official printer of a State or Territory; or

   (c) to have been printed by authority of the government or administration of the Commonwealth, a State, a Territory or a foreign country;

   is what it purports to be and was published on the day on which it purports to have been published.

   (2) If:

   (a) there is produced to a court:

   (i) a copy of any government or official gazette (by whatever name called) of the Commonwealth, a State, a Territory or a foreign country; or

   (ii) a document that purports to have been printed by the Government Printer or by the government or official printer of a State or Territory; or

   (iii) a document that purports to have been printed by authority of the government or administration of the Commonwealth, a State, a Territory or a foreign country; and

   (b) the doing of an act:

   (i) by the Governor-General or by the Governor of a State or the Administrator of a Territory; or

   (ii) by a person authorised or empowered to do the act by an Australian law or a law of a foreign country;

   is notified or published in the copy or document;

   it is presumed, unless the contrary is proved, that the act was duly done and, if the day on which the act was done appears in the copy or document, it was done on that day.

5. Section 156 of the Evidence Act 1995 (Cth) provides:

   Public documents

   (1) A document that purports to be a copy of, or an extract from or summary of, a public document and to have been:

   (a) sealed with the seal of a person who, or a body that, might reasonably be supposed to have the custody of the public document; or

   (b) certified as such a copy, extract or summary by a person who might reasonably be supposed to have custody of the public document;

   is presumed, unless the contrary is proved, to be a copy of the public document, or an extract from or summary of the public document.

   (2) If an officer entrusted with the custody of a public document is required by a court to produce the public document, it is sufficient compliance with the requirement for the officer to produce a copy of, or extract from, the public document if it purports to be signed and certified by the officer as a true copy or extract.

   (3) It is sufficient production of a copy or extract for the purposes of subsection (2) if the officer sends it by prepaid post, or causes it to be delivered, to:

   (a) the proper officer of the court in which it is to be produced; or

   (b) the person before whom it is to be produced.

   (4) The court before which a copy or extract is produced under subsection (2) may direct the officer to produce the original public document.

6. The dictionary in the Evidence Act 1995 defines “Public Document” as:

   (a) forms part of the records of the Crown in any of its capacities; or

   (b) forms part of the records of the government of a foreign country; or

   (c) forms part of the records of a person or body holding office or exercising a function under or because of the Constitution, an Australian law or a law of a foreign country; or

   (d) is being kept by or on behalf of the Crown, such a government or such a person or body;

   and includes the records of the proceedings of, and papers presented to:

   (e) an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament; and

   (f) a legislature of a foreign country, including a House or committee (however described) of such a legislature.

7. As a result of the Evidence Act 1995 I find that the Marriage Registration document is what it purports to be, that is, an official document of the Egyptian Government evidencing the civil registration on [omitted] 2002 of the marriage between [Mr Jarrah] as the husband and [Ms Fadel] as the wife. The marriage having occurred on [omitted] 2002.

8. I also find because of the Evidence Act 1995 that the Marriage Registration document is a summary of the Egyptian public document.

9. The Applicant was unchallenged as to paragraph 4 of her Affidavit sworn 22 September 2014. I therefore find as at [omitted] 2002 she was known by the name [Ms Fadel] which when anglicised can also be [Ms Fadel].

10. The Applicant was cross examined to a limited extent about paragraph 12 of her Affidavit sworn 22 September 2014. The Respondent denied using all the names recorded therein. Initially he said he had only one previous name. He later stated he did acknowledge using the names [Mr Jarrah] and [Mr Jarrah] and [Mr Jarrah].

11. He could not dispute use of the first two names because that is how he was known in the proceedings before Justice Johnson.

12. He acknowledged use of the third name variation because he asserted the document Annexure ‘H’ to the Applicant’s Affidavit sworn 22 September 2014 was an extract of his passport thereby adopting that name use.

13. None of those names is the same as the “particulars of husband” in the Marriage Registration document.

14. For reasons discussed later and because of the inconsistencies in the Respondent’s evidence above I find that the Respondent was at times untruthful.

15. Initially the Responded asserted the photographs, Annexure ‘F’ to the Applicant’s Affidavit sworn 22 September 2014 were photo-shopped.

16. He next asserted the photographs to be unaltered and that he was the male depicted in the photographs but it was of an engagement ceremony, presided over by a Priest and the ring he was depicted putting on the Applicant was not a wedding ring but an engagement ring.

17. Both assertions of the Respondent are inherently implausible and rendered unbelievable by the Affidavit of the Applicant’s mother, Ms F sworn 9 September 2014. She was not cross examined. In Paragraph 4 of her Affidavit she says:

    I attended the [omitted] Church in Cairo , Egypt on [omitted] 2002 for my daughter and Mr Jarrah’s wedding ceremony. I was present throughout the wedding ceremony and saw my daughter and Mr Jarrah exchange wedding vows and wedding rings.

18. In paragraph 7 of her Affidavit she says:

    At the time my daughter married Mr Jarrah, I knew, and was introduced to, Mr Jarrah as [Mr Jarrah]. I also knew Mr Jarrah by the name [Mr Jarrah].

19. I prefer the Applicant’s evidence as corroborated by her mother to the evidence of the Respondent’s. I therefore find that the photographs depict the parties wedding ceremony in Egypt on [omitted] 2002.

20. I find that they were married in a religious ceremony in Egypt on [omitted] 2002.

21. I accept on the balance of probabilities that [Mr Jarrah] the name in the Marriage Registration document to be one and the same person as the Respondent.

22. It is clear from the above that I prefer the evidence of the Applicant to that of the Respondent. The Applicant was a credible and truthful witness. The Respondent changed his evidence as to the authenticity of the photographs. He could provide no reasonable explanation as to his acceptance of the marriage at the time of [X]’s birth was registered. As that was a time well before the current controversy I find that evidence to be persuasive.

23. I am satisfied given my acceptance of the earlier evidence of the Applicant and her mother, that the Respondent mislead the Egyptian authorities when he obtained an Identity Card [3] that recorded his status as “single”.

    [3] Exhibit ‘B’

Conclusion

1. For these reasons I find that:

   a)The Applicant and the Respondent were married to each other in a religious ceremony in Egypt on [omitted] 2002 which marriage was civilly registered in Egypt on [omitted] 2012.

   b)The parties separated in April 2011 and have lived separately and apart since then, and their marriage has thereby irretrievably broken down.

   c)The Applicant regards Australia as her home and intends to live indefinitely in Australia and ordinarily lives in Australia and has done so for twelve month immediately prior to filing the Application for Divorce on 20 February 2014.

   d)The parenting arrangements for the parties three children who are all under the age of 18 years are as set out in the Orders of Justice Johnson made on 21 February 2014 and as such these are circumstances pursuant to section 55A(1)(b)(ii) of the Family Law Act 1975 that means the divorce should be granted.

2. For these reasons I pronounce a divorce order to become effective one month from today.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Associate: 

Date:  3 November 2014