Fern & Fern (No. 2)

[2021] FamCA 643

FAMILY COURT OF AUSTRALIA

Fern & Fern (No. 2) [2021] FamCA 643

File number(s):

BRC 9504 of 2014

Judgment of:

HOWARD J

Date of judgment:

18 August 2021

Catchwords:

FAMILY LAW – NULLITY OF MARRIAGE – where the wife was lawfully married to another person at the time of the subject marriage – where there was (in any event) no real consent to the marriage – mistake as to the identity of the respondent wife at the time of the purported marriage due to her fraudulent actions – where the marriage was therefore void – decree of nullity granted.

Legislation:

Family Law Act 1975 (Cth) ss 51, 79

Marriage Act 1961 (Cth) s 23B

Cases cited:

Campani & Suyapto [2008] FamCA 1121
In the marriage of Osman & Mourrali (1989) 96 FLR 362
Moss & Moss [1897] P 263

Number of paragraphs:

32

Date of last submission/s:

18 August 2021

Date of hearing:

18 August 2021

Place:

Brisbane

Solicitor for the Applicant:

Turnbull Mylne Solicitors

There being no appearance by or on behalf of the Respondent.

ORDERS

BRC 9504 of 2014
BETWEEN:	MR FERN Applicant
AND:	MS FERN Respondent

ORDER MADE BY:	HOWARD J
DATE OF ORDER:	18 AUGUST 2021

THE COURT ORDERS ON A FINAL BASIS:

1.That the marriage solemnised at Brisbane in the State of Queensland in 2006 between the applicant, Mr Fern and the respondent Ms Fern (also known as Ms X) is declared to be void pursuant to section 23B(1)(a) and section 23B(1)(d)(i) and (ii) of the Marriage Act 1961 (Cth) and thus the said marriage is a nullity.

2.That the respondent pay the applicant’s costs fixed sum of $8,800.

Note:   The form of the order is subject to the entry in the Court’s records.

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).

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

EX TEMPORE REASONS FOR JUDGMENT

A.         These reasons were delivered ex tempore on 18 August 2021 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court.

1. The applicant before the Court is Mr Fern. Mr Fern was born in 1958. By an Amended Initiating Application filed on 27 April 2020, the applicant seeks the following orders against the respondent. Firstly, a declaration that the marriage between the applicant and the respondent is void pursuant to section 23B(1)(a) of the Marriage Act 1961 (Cth). Furthermore, the applicant seeks a declaration that the marriage between the applicant and the respondent is void pursuant to section 23B(1)(d)(i) and (ii) of the Marriage Act 1961 (Cth). The applicant seeks a decree of nullity in respect of the marriage between the applicant and the respondent and the applicant seeks costs.

2. The respondent to this application is named as Ms Fern (AKA Ms X).  The matter initially came on before Forrest J.  It is apparent from the Court record that the respondent, Ms Fern, was aware of the proceedings.  Forrest J delivered Reasons for Judgment on 16 October 2020 in relation to an application for an adjournment.  At that time it was the applicant who was seeking an adjournment in order to carry out some further investigations and obtain some further evidence.

3. It is apparent from his Honour’s Reasons for Judgment that the respondent, Ms Fern, was in fact present before his Honour on 24 August 2020, which was the date of the hearing.  His Honour’s reasons were delivered 16 October 2020.  The Court record, therefore, clearly shows that the respondent had notice of this application and had appeared before the Court.  She has not appeared before the Court today and, indeed, she did not appear before the Court on the last occasion when the matter was before me for a Case Management Hearing.

4. The respondent has never filed a response to the application. It is appropriate for the Court to proceed in what is essentially an undefended hearing. Before I turn to the provisions of section 23B of the Marriage Act 1961 I note that the decree of nullity sought by the applicant is sought pursuant to section 51 of the Family Law Act 1975 (Cth) (“the Act”). That section states:

   “An application under this Act for a decree of nullity of marriage shall be based on the ground that the marriage is void.”

5. Section 23B of the Marriage Act 1961 sets out the grounds on which a marriage is said to be void. Section 23B states:-

   “(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 did not understand the nature and effect of the marriage ceremony; or

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

   (2)  Marriages of parties within a prohibited relationship are marriages:

   (a)  between a person and an ancestor or descendant of the person; or

   (b)  between 2 siblings (whether of the whole blood or the half-blood).

   (3)  Any relationship specified in subsection (2) includes a relationship traced through, or to, a person who is or was an adopted child, and, for that purpose, the relationship between an adopted child and the adoptive parent, or each of the adoptive parents, of the child shall be deemed to be or to have been the natural relationship of child and parent.

   (4)  Nothing in subsection (3) makes it lawful for a person to marry a person whom the first-mentioned person could not lawfully have married if that subsection had not been enacted.

   (5)  For the purposes of this section:

   (a)  a person who has at any time been adopted by another person shall be deemed to remain the adopted child of that other person notwithstanding that any order by which the adoption was effected has been annulled, cancelled or discharged or that the adoption has for any other reason ceased to be effective; and

   (b)  a person who has been adopted on more than one occasion shall be deemed to be the adopted child of each person by whom the first-mentioned person has been adopted.

   (6)  For the purposes of this section:

   "adopted" , in relation to a child, means adopted under the law of any place (whether in or out of Australia) relating to the adoption of children.

   "ancestor" , in relation to a person, means any person from whom the first-mentioned person is descended including a parent of the first-mentioned person.”

6. For present purposes, the relevant subsections and those particularised in the Amended Initiating Application are section 23B(1)(a) and section 23B(1)(d)(i) and (ii). In relation to section 23B(1)(a), a marriage is said to be void if either of the parties is, at the time of the marriage, lawfully married to some other person. In late 2004 the applicant, Mr Fern, travelled to Country B for a holiday. He met the respondent in V city some time in 2005. The respondent told him that her name is Ms X. The parties became friends and subsequently Ms X became the applicant’s girlfriend. The parties decided to get married. The respondent told the applicant she did not have a passport and the parties travelled from the south of Country B to V city so that the respondent could apply for her passport.

7. At this time the applicant returned to Australia.  He then went back to Country B in October 2005.  At that stage it seems that the respondent had been diagnosed with tuberculosis and needed six months of treatment.  In any event, the respondent wanted to obtain Australian citizenship so the parties applied for a fiancé visa on behalf of the respondent.  The applicant paid for the attorney’s legal fees in respect of the preparation of an Australian fiancé visa application. 

8. The respondent arrived in Australia in November 2006 and the parties went through a marriage ceremony in 2006.  The certificate of marriage in respect of that marriage ceremony is annexure F1 to the affidavit of Mr Fern filed on 21 January 2020.  That certificate of marriage indicates that on that date the parties went through a wedding ceremony before a Ms T.  This took place at the general registry office in Brisbane.  The names on the certificate of marriage dated in 2006 are as follows: 

   “Mr Fern; and,

   Ms X.”

9. The parties lived together after the marriage ceremony at R Street, S Town, Queensland.  The applicant says (and I note this is contained in a statement he gave to the police on 23 December 2019, such statement being annexure F30 to the affidavit of Mr Fern filed 21 January 2020) that shortly after the marriage the respondent started to domestically abuse the applicant Mr Fern.  He tried to avoid conflict at all costs due to his ill health.  The respondent started a business.  The applicant himself already had a business. 

10. In June 2011 the parties then moved to Country B.  The respondent was wanting the applicant to raise some capital in order to help her establish a hospitality business in Country B.  The parties then travelled back to Australia in January 2012 so the respondent could sell his then residence at P Street, Suburb Q.  The applicant says that the sale of the house was as a result of pressure and duress from the respondent and her associates.  There is no evidence in this case from the respondent to contradict any of this evidence from the applicant.  In any event, the house was sold in late 2013 for approximately $480,000.  The applicant paid out his bank loan.  He paid certain taxation debts to the Australian Taxation Office, and gave the balance of the proceeds of sale to the respondent.

11. The parties then moved back to Country B on 28 December 2013 and the respondent kept pressuring the applicant to raise more funds for her business.  Threats were made by the respondent to the applicant to the effect that the respondent and her brother would organise for the applicant Mr Fern to be kidnapped.  The applicant left Country B on 27 February 2014 with the intention of raising more funds in Australia for the respondent.

12. I note that paragraph 21 of the police statement says as follows:

    “21. In May 2014 while in Australia, my accountant informed me that my tax returns were overdue.  I knew that the tax records were likely to be in a filing cabinet in my storage shed at E Street, F Town.  I went into the shed and opened the filing cabinet and searched for financial documents.  I discovered a folder marked Ms Fern’s Identities in her handwriting.  The folder contained mostly original documents showing two different identities but displaying photographs of Ms Fern.  The identities were in the names of Ms H nee X and Ms X1.  Ms H is not a name I was familiar with.”

13. In paragraph 22 of the police statement the applicant sets out other documents that he found in the folder that was marked “Ms Fern’s Identities”.  Paragraph 22 of the police statement states:-

    “22. I recall the following documents were in the folder marked ‘Ms Fern's Identities’:

    (1) A Country B passport for a Ms X issued 25th August 2005;

    (2) A police clearance from the Justice Department in Country B for a Ms X dated 17th November 20015;

    (3) A birth ce1tificate for Ms X issued 1st March 2005;

    (4) A copy of a Country B passport for Ms H1 issued 7^th February 2002;

    (5) A Country B ID for Ms X issued 6th May 2005;

    (6) A police clearance from the Justice Department in Country B for Ms H dated in 2004;

    (7) A police clearance from the Country B National Police for Ms H dated 20^th September 2004;

    (8) A Country B Driver Licence for Ms H1 with Licence Number ….”

14. The applicant told the respondent that he had found the folder labelled “Ms Fern’s Identities” and this seemed to anger her. Shortly thereafter the respondent Ms Fern retained a solicitor, W Solicitors, to represent her in family law proceedings. She commenced proceedings in the Federal Circuit Court of Australia. I note that, in fact, those proceedings were dismissed by her Honour Judge Cassidy in the Federal Circuit Court of Australia in 2017. Those proceedings had been commenced pursuant to section 79 of the Family Law Act and in dismissing those proceedings her Honour also ordered that the respondent pay to the applicant costs in excess of $10,000.

15. After discovering the folder indicating that the respondent had more than one identity the applicant began to make some inquiries and he gained the assistance of the Embassy of Country B based in Canberra.  On 1 April 2015 the Embassy wrote back to the applicant and detailed the record of a birth of one Ms Y.  There is a misspelling in that police statement.  The police statement says that there was a record of birth for a person named Ms X2, but the actual birth certificate which is contained earlier in the affidavit of the applicant at F3 shows that the name registered at the birth was Ms X3, and that the date of birth was in 1978.  The conclusion that I have reached is that this is the correct birth certificate of the respondent.

16. There is another birth certificate which is included in the evidence and it is contained at annexure 4.  It is said that in 1979 a child named Ms X1 was born.  Information from Country B Statistics Authority (which seems to be the appropriate government department keeping the records) leads the Court to conclude that the birth certificate that purports to state that Ms X1 was born in 1979 is fraudulent.  The records of that same government department show that Ms X1, remarkably, has a brother who was born in mid-1979, a mere five months prior to the alleged birth of Ms X1.  I note this evidence is contained in the police statement provided by the applicant.  There is also annexed to the affidavit of Mr Fern a copy of a letter from the Embassy of Country B dated 1 April 2015 confirming that Country B Statistics Authority has supplied that information.

17. He has also, to that police statement, attached a couple of documents referred to as exhibits.  Exhibit number 2 in particular is the document which purports to show the birth of Ms X1 in 1979.  I do not doubt that the document itself was actually generated by the requisite government department in Country B.  It is clear enough that a fraud was perpetrated upon that department, and that fraud was, I infer from the available evidence, perpetrated by the respondent.  Indeed, on page 2 of that document it indicates that there was a delayed registration of the birth by the woman herself.  It was said that the reason for the delay in registering the birth was due to “negligence”.  So the respondent herself applied for a delayed registration of what she purported was her own birth. 

18. My view that the respondent perpetrated a fraud upon the relevant Country B government department is reinforced by other evidence which has been obtained by the applicant, namely a warrant of arrest.  That document is annexure F23 to the affidavit of Mr Fern.  It indicates that Country B authorities sought the arrest of the respondent because it was stated that she had falsified the birth certificate.  The Prosecution Office of the Justice Department in Country B on 1 August 2019 requested the extradition of Ms H1 from Australia to Country B.  The respondent was, in fact, married to a Country G national (Mr H).  The evidence relating to the respondent’s marriage to the citizen of Country G is also contained in the affidavit of Mr Fern. 

19. The first ground sought by the applicant relates to the so-called bigamy ground.  Annexure 2 to the applicant’s affidavit is a certificate of marriage from the Office of the Civil Registrar General in L City in N Region in Country B.  It shows that in 2000, Ms X2, who was said to have been born in 1978, married Mr H.  This man was born in 1958 and is stated to be a citizen of Country G.  The date of birth stated there by Ms X2, being in 1978 coincides with the birth certificate in the same name, which appears at annexure F3 of the applicant’s affidavit.

20. So the date of the marriage in 2000, to Mr H, is confirmed.  The applicant engaged the assistance of a private investigator in Country G and the private investigator ascertained that Mr H is alive and well.

21. The Court has been provided with an email trail between the applicant, his lawyers (Turnbull Mylne) and the private investigator in Country G, Ms M.  Ms M was conducting the investigations on behalf of the applicant in respect of the whereabouts of Mr H, born in 1958.  Ms M was able to confirm by the email she sent on 3 February 2021 that as at that date that Mr H had an identity card number, that number being … and that his registered address in Country G was K Street, J City, Country G.

22. It is said that Mr H (referred to in the email as “the target”):

    “…is alive and living in J City.”

23. I hasten to add that as far as I’m aware, there is no suggestion from any person that Mr H was dead.  There is no evidence at all from the respondent and there is certainly no assertion that the person she married in 2000 is dead. 

24. There is evidence to show that there has been no dissolution of the marriage of Ms X2 and Mr H, neither has there been a divorce.  This evidence is contained in the affidavit of the applicant.  It is a letter dated 30 April 2015 from the Embassy of Country B.  The Court therefore has sufficient evidence to establish the following:-

    (1)That in 1978, Ms X3 was born in Country B. 

    (2)In 2000, Ms X3 married Mr H in Country B. 

    (3)Mr H is alive and well and living in Country G. 

    (4)The marriage between Ms X3 and Mr H has never been dissolved, either through annulment or divorce.

25. At the time, the respondent purported to marry the applicant (8 December 2006), the respondent was already legally married to another person, that person being Mr H. The first ground is therefore established by the applicant for a declaration that the marriage is void pursuant to section 23B(1)(a).

26. The evidence is also sufficient to conclude that the marriage which purportedly took place on 8 December 2006 between the applicant and the person stated on the marriage certificate, Ms X, is void for another reason.  The consent of the applicant to the marriage was not a real consent, because it was obtained by fraud.  The fraud was perpetrated by the respondent, who was then known to the applicant as Ms X.  In fact, that person was not Ms X.  That was person was Ms X3.  The fraud perpetrated by the respondent related to her own identity.  Mr Fern has given evidence and I accept that if he had known the true situation in relation to the identity of the respondent and the fact that she had other identities, that he would never have consented to marry the respondent. In this respect, the authorities are clear.  That kind of fraud is precisely a kind of fraud which is sufficient to obtain a declaration that the marriage is void.

27. I note that In the marriage of Osman & Mourrali (1989) 96 FLR 362, Nygh J was considering what was then section 23B(1)(d)(i) of the Marriage Act. In that case, the applicant for nullity had stated that her consent to the marriage was not a real consent because it was obtained by fraud. His Honour referred to an earlier English decision in Moss & Moss [1897] P 263. At pages 268 and 269 of that decision in Moss, the Court (Sir Francis Jeune P) stated:-

    “But when in English law fraud is spoken of as a ground for avoiding a marriage, this does not include such fraud as induces consent, but is limited to such fraud as procures the appearance without the reality of consent.  The simplest instance of such fraud is personation … in every case where a fraud has been held to be a ground for declaring a marriage null, it has been such fraud as has procured the form without the substance of agreement, and in which the marriage has been annulled, not because of the presence of fraud, but because of the absence of consent.”

1. Nygh J then stated in Osman at paragraph 366 stated:

   “366…that passage has generally been interpreted as meaning that the marriage is void because the purported consent was given to something other than a marriage or to a marriage with someone other than the person physically standing at the altar.”

2. This is what I would refer to as the “identity issue”. 

3. I note that there was more recently a case in this Court, a decision of Dawe J in Adelaide.  The decision was delivered on 16 December 2008 after a hearing on that day.  In that instance, there was very similar facts of the current case.  That case is Campani & Suyapto [2008] FamCA 1121, where the respondent (who was, it seems, a citizen of Thailand) had given her name as “KWT”. Apparently, that was not her name at all. Given the identity fraud, the Judge in that case was satisfied that grounds for a decree of nullity had been made out.

4. In the case currently before the Court I am satisfied for the reasons stated – that the marriage is void and that a decree of nullity should be granted.  I will pronounce the decree of nullity in respect of the marriage that took place between the applicant and the respondent on 8 December 2006.   

5. I also accept the submissions of the applicant in relation to costs.  The conduct of the respondent has been reprehensible.  It is appropriate that a costs order will be made and it will be fixed in the amount of $8,800 including GST.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard.

Associate:

Dated:       10 September 2021