FATISI & HASILA
[2020] FamCA 209
•3 April 2020
FAMILY COURT OF AUSTRALIA
| FATISI & HASILA | [2020] FamCA 209 |
| FAMILY LAW – overseas marriage – decree of nullity or invalidity concerning marriage – where one party was underage at the time of the marriage – where marriage was procured by duress – whether terms void and invalid can be used interchangeably in respect of a decree of nullity |
| Family Law Act 1975 (Cth) ss 43, 51, 113 Marriage Act 1961 (Cth) ss 2A, 22, 23, 23B(1)(d)(i), 23B(1)(d)(iii), 88A, 88D, 88D(2)(b), 88D(2)(d), 88D(3), Part VA Marriage Amendment Bill 1984 Explanatory Memorandum Convention on Celebration and Recognition of the Validity of Marriages (Concluded 14 March 1978; signed 25 March 1978) – Article 11 |
| Bitar v Bitar [2018] FamCA 567 Pearce and Geddes, Statutory Interpretation in Australia, 8th Ed, LexisNexis Butterworths, 2014 |
| APPLICANT: | Ms Fatisi |
| RESPONDENT: | Mr Hasila |
| FILE NUMBER: | CAC | 1741 | of | 2018 |
| DATE DELIVERED: | 3 April 2020 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 1 April 2020 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Legal Aid, ACT |
| SOLICITOR FOR THE RESPONDENT: | No attendance |
Orders
A decree of nullity is granted for the Country T marriage of Ms Fatisi and Mr Hasila of … 2005.
The Country T marriage of Ms Fatisi and Mr Hasila of … 2005 is declared invalid.
The Husband’s application for divorce is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fatisi & Hasila has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 1741 of 2018
| Ms Fatisi |
Applicant
And
| Mr Hasila |
Respondent
REASONS FOR JUDGMENT
introduction
These proceedings involve an application by the Wife, Ms Fatisi (the Applicant), made in the context of the Husband’s, Mr Hasila – (the Respondent), application for divorce. She seeks a decree of nullity or, in the alternative, a declaration of invalidity in respect of their marriage.
The parties participated in a final hearing in 2019 in relation to parenting matters in which it emerged that, at the time of their marriage in Country T on … 2005, the Applicant was twelve years old.
The hearing of the Applicant’s application took place with the assistance of a Farsi interpreter, but without the involvement of The Respondent, who did not attend the hearing despite his presence in Court when the matter was set down. A Z language interpreter had been arranged for him. He had previously, before the matter was set down, attended at the Legal Aid office (who act for the Applicant) and informed them that he would no longer participate in the proceedings. It was in this context that the Applicant was granted permission to amend her Initiating Application filed 21 February 2020, in which she had solely sought a decree of nullity, and to add relief by a declaration of invalidity.
Factual basis for the relief sought.
The Applicant put forward the following factual basis for the two forms of relief sought:
i)The Applicant was born on … 1993;
ii)The Applicant and the Respondent married in Country T on … 2005 when the Applicant was aged twelve;
iii)On returning from school one day, the Applicant was told by her family that she would marry the Respondent that evening;
iv)The Applicant was scared and did not want to marry the Respondent;
v)The Applicant was not asked if she wanted to marry and did not think that she could say no; and
vi)The Applicant moved into the Respondent’s home on … 2006, the day of a marriage ceremony between them following her end of year school exams. She did not understand that she would have to sleep next to him or have sex with him.
Legal basis for the relief sought
The first limb of the Applicant’s case is her age at the time of the marriage. She submits that by virtue of s 88D(3) of the Marriage Act 1961 (Cth) (‘the Marriage Act’) the marriage is void or invalid.
The second limb of the Applicant’s case relies on s 88D(2)(d) of the Marriage Act. She submits that, on the basis that she did not give real consent to the marriage, the marriage is void or invalid.
As a consequence, the Applicant seeks a decree of nullity pursuant to s 51 of the Family Law Act 1975 (Cth) (‘the Family Law Act’) on the basis that the marriage is void. If such a decree is not available, the Applicant seeks a declaration of invalidity of the marriage pursuant to s 113 of the Family Law Act.
Section 88D(3) of the Marriage Act
Section 88D(3) is located in Part VA of the Marriage Act, which deals with the recognition of foreign marriages. It sits within s 88D which generally recognises the validity of foreign marriages, but which then sets out a suite of characteristics which will cause a foreign marriage to be invalid. Both s 88D(3) and s 88D(2)(b) deal with the age of the participants at the time of the marriage. They are, however, expressed in distinct terms. The different manners in which they deal with age and invalidity is helpful in construing s 88D(3). The provisions are as follows (with my emphasis):
s 88D(3)
Where neither of the parties to a marriage to which this Part applies was, at the time of the marriage, domiciled in Australia, the marriage shall not be recognised as valid in accordance with subsection (1) at any time while either party is under the age of 16 years.
s 88D(2)(b)
(2)A marriage to which this Part applies shall not be recognised as valid in accordance with subsection (1) if:
(a)where one of the parties was, at the time of the marriage, domiciled in Australia—either of the parties was not of marriageable age within the meaning of Part II;
Where s 88D(2)(b) applies, then the fact of a party being not of marriageable age at the time of the marriage renders the marriage invalid. Section 88D(2)(b) only has application where, at the time of the marriage, a party to the marriage was domiciled in Australia. That was not the case here.
Section 88D(3) is expressed in a different manner. On its terms it has application where, as here, neither party to the marriage was domiciled in Australia at the time of the marriage. Invalidity of the marriage then persists while either party to the marriage is under 16 years of age. Once neither party remains under the age of 16, then the condition that renders the marriage invalid no longer persists.
It was submitted that it would be incongruous to construe the legislation as accepting that a marriage that took place when the Applicant was twelve could be recognised as valid. It was submitted that this was neither within the contemplation of the legislature, nor of the signatories to the Hague Convention on Celebration and Recognition of the Validity of Marriages (‘the Convention’),[1] which, by s 88A, it was the object of Part VA to give effect to. The Applicant requested that attention be paid to both the Explanatory Memorandum[2] for s 88D and the terms of the Convention.
[1] Convention on Celebration and Recognition of the Validity of Marriages (Concluded 14 March 1978; signed 25 March 1978)
[2]Marriage Amendment Bill 1984 Explanatory Memorandum
The Explanatory Memorandum provides, relevantly:
Validity of Marriages - New section 88D confers basic recognition on marriages to which the new part applies. The recognition given by sub-section 88D(1) will, however, be subject to exceptions permitted by Article 11 of the Convention. A marriage solemnized in a country outside Australia will not be required to be recognized as valid under subsection 88D(1) –
…
If neither party was at the time of the marriage domiciled in Australia, at any time while either of the parties is below the absolute minimum age under Australia law ie 14 for females and 16 for males (sub-section 88D(3))
…
If anything, the Explanatory Memorandum reinforces the above understanding of the provision (noting that some change to s 88D(3) took place in relation to the ages prior to enactment). Like the provision itself the Explanatory Memorandum links validity to the current age of the marriage party rather than the age at the time of the marriage.
As noted, Part VA gives effect to the Convention. The Convention’s provisions that relevantly relate to invalidity are as contained at Article 11 of the Convention:
Article 11
A Contracting State may refuse to recognise the validity of a marriage only where, at the time of the marriage, under the law of that State –
(1)one of the spouses was already married; or
(2)the spouses were related to one another, by blood or by adoption, in the direct line or as brother and sister; or
(3)one of the spouses had not attained the minimum age required for marriage, nor had obtained the necessary dispensation; or
(4)one of the spouses did not have the mental capacity to consent; or
(5)one of the spouses did not freely consent to the marriage.
However, recognition may not be refused where, in the case mentioned in sub-paragraph 1 of the preceding paragraph, the marriage has subsequently become valid by reason of the dissolution or annulment of the prior marriage.
Three observations are to be made in relation to the Convention. The first is that Article 11 is permissive in its terms. It is expressed as permitting rather than requiring member states to decline to recognise as valid in particular circumstances. The second is that Part VA is expressed to give effect to the Convention.[3] The third is that, although the Convention may, particularly because of the provisions of s 88A, be of assistance in construing the enacting legislation, it is the enacting legislation that constitutes the domestic Australian law, not the Convention. See in relation to this the discussion in Ralton & Ralton which emphasised the obligation on the Court to apply the domestic legislation.[4] Here the provisions enacted by the Parliament take their own course in respect of Article 11(3), rather than simply following its terms, and the text of the Convention gives little assistance to their construction.
[3] See Pearce and Geddes, Statutory Interpretation in Australia, 8th Ed, LexisNexis Butterworths, 2014, 96
[4]Ralton & Ralton [2017] FamCAFC 182 [18]
The effect of s 88D(3) is to deny validity while either of the parties is under 16 years of age but, once they have both reached that age, to cease to have effect. Although the Applicant was twelve at the time of the marriage to The Respondent, they are both older than 16 and so s 88D(3) has no current impact on the validity question.
Section 88D(2)(d)
The Applicant then relied on an alternative argument flowing from s 88D(2)(d), which renders invalid marriages where the consent was not real consent. In doing so it picks up other provisions of the Marriage Act. It, and the provisions it picks up, are in the following terms:
A marriage to which this Part applies shall not be recognised as valid in accordance with subsection (1) if:
(d)the consent of either of the parties was not a real consent for a reason set out in subparagraph 23B(1)(d)(i), (ii) or (iii).
Section 23B(1)(d) sets out circumstances where
(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.
The Applicant relied on the exceptions related to duress and to a lack of understanding of the nature and effect of the marriage. In considering the circumstances confronting the Applicant on the marriage, the solicitor for the Applicant, Ms Theodore, helpfully referred to In the Marriage of S[5] as providing a helpful perspective on examining such issues from the perspective of the participant in the marriage.
[5]In the Marriage of S (1980) FLC 90-820
The issue of consent is to be seen in a particular statutory context. That context emerges both from the Marriage Act and the Family Law Act. A significant aspect of that statutory context was referred to by Watson SJ in In the Marriage of S where he observed that:
The decision to marry is important. For some people of greater importance than any other decision taken during a lifetime. Its voluntariness is fundamental.
The centrality of voluntariness was noted by Watson SJ as implicit to s 43 of the Family Law Act, which guides the Court in the exercise of its jurisdiction, and which emphasises the voluntariness of marriage. Similarly voluntariness is emphasised in the Objects at s 2A of the Marriage Act.
It should also be observed that the key concept of s 23B(1)(d) is the reality of the consent. The three underlying paragraphs identify the means by which that consent may be robbed of reality. There is no call for them to be read disjunctively. As each arises in a particular case it is to be examined both individually and collectively with the others to ascertain whether the consent is not real.
The Applicant relied heavily on duress. The concept of duress takes on different qualities in different legal contexts. Its content when seen as a criminal defence differs from the manner in which it is treated in equity. Here the understanding of duress emerges from s 23B(1)(d) itself, where it is directed to the reality of the consent. The implication to be drawn is that the statutory concept of duress is not beholden to either a criminal or equitable understanding, but rather to the notion of its capacity to undermine the reality of a consent to a marriage.
Although the circumstances of the wedding ceremony received some attention in the trial of the children’s matters between the parties, these particular matters were not resolved at the trial and to the extent that they were touched upon did not give rise to an issue estoppel. The issues fall to be determined on the evidence presented in this application. Although the burden to establish the relevant facts falls upon the Applicant, her task in discharging that burden is eased by the non-involvement of The Respondent.
Here the Applicant testifies that she was without choice in the marriage. She was scared. She lacked understanding. The marriage was not at her initiative but was the product of an arrangement made by her family. The various ceremonies were performed without any notice to the Applicant. She did not want to be married, but felt that she was not able to say so. These assertions are given added credibility by the fact that the Applicant was only twelve at the time of the marriage.
These speak to the marriage as being a consequence of the pressure or duress placed upon the Applicant, and added to some lack of understanding of what was happening to her, not being a consequence of her real consent. Accordingly, this leads to the conclusion that the marriage is invalid in terms of the Marriage Act.
Void or invalid?
It is important at this stage to deal with whether there is a distinction between a marriage being void and a marriage being invalid, as such will determine the relief that is available. The only ground on which a decree of nullity may be granted is if a marriage is void. The Marriage Act, however, uses the term “void” in relation to Australia marriages, and “invalid” in relation to foreign marriages. Does something turn on this difference?
This issue has been dealt with initially by Lindenmayer J in Teves III and Campomayor where His Honour said:[6]
At first I had some difficulty in accepting that submission (that invalid and void were the same) because nowhere in Part VA of the Marriage Act is it provided that a marriage entered into in a foreign country is “void”, for the purposes of Australian law, in circumstances defined in s.88D(2), but only that in those circumstances it “shall not be recognized [in Australia] as valid “ (emphasis added). This may be contrasted with ss.23 and 23B, which provide that a marriage to which either of those sections directly applies “is void” in those circumstances. However, on reflection, I think that the submission is a sound one because it is inconceivable that in circumstances where a court of this country, exercising the judicial power of the Commonwealth, is obliged by a valid statute of the Commonwealth not to recognize, as valid, a marriage solemnized in a foreign country, that court could refuse to declare the marriage invalid (which is all a decree of nullity does) at the suit of one of the parties to that marriage who has properly invoked the court’s jurisdiction to make such a declaration, merely because the section under which the application is brought uses the expression “void” as the basis for a nullity application rather than , say “invalid” or “not valid”. In short, I conclude that if, in accordance with s.88D(2) of the Marriage Act, a marriage solemnized outside Australia is one which is required not be recognized in Australia as valid, then it is “void” within the meaning of that term as used in s.51 of the Family Law Act.
[6]Teves III and Campomayor (1994) 18 Fam LR 844
This was accepted and applied by Foster J in Bitar v Bitar.[7]
[7]Bitar v Bitar [2018] FamCA 567
A similar approach was taken by Berman J in Tao v Sterling where his Honour said:[8]
Under s 51 of the Act, an application for a decree of nullity of marriage must be based on the ground 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 which confirms the fact that there was never a valid marriage.
[8]Tao v Sterling [2018] FamCA 774 [14]
On this line of reasoning, “invalidity” in the Marriage Act equates to “void” as understood in s 51 of the Family Law Act. Hence, despite the use of differing terms which carries some implication of different meaning within the Marriage Act, both “void” and “invalid” in the Marriage Act fall within the concept of “void” within the Family Law Act.
Interestingly, although not definitive, the Explanatory Memorandum which dealt not only with the insertion of Part VA, but also in relation to ss 22 and 23 of the Marriage Act which deals with void marriages, uses the terms valid and void interchangeably.
Conclusion
The Applicant is entitled to both the forms of relief that she seeks. A declaration of invalidity will be made, and a Decree of Nullity will issue. This will result in the dismissal of The Respondent’s application for divorce.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 3 April 2020.
Associate:
Date: 3 April 2020
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