Fogiel and Chase

[2019] FamCA 926

FAMILY COURT OF AUSTRALIA

FOGIEL & CHASE [2019] FamCA 926

FAMILY LAW – NULLITY – Application by husband for decree of nullity of marriage – Where the husband says he forced the wife into marriage under duress – Where the wife neither supports nor opposes the application – Where no decree of nullity is made

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

Szechter v Szechter [1970] All ER 905
Teves and Campomayor (1995) FLC 92-578

APPLICANT: Mr Fogiel

RESPONDENT: Ms Chase

FILE NUMBER: BRC 5550 of 2019

DATE DELIVERED: 5 December 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 11 November and 3 December 2019

REPRESENTATION

THE APPLICANT: No Appearance (on 11 November)
In Person (on 3 December)

THE RESPONDENT:

In Person (on 11 November)

No Appearance (on 3 December)

Orders

1. The Application for a declaration of nullity in respect of the marriage of the parties solemnised on 2 March 2019, 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 Fogiel & Chase 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 BRISBANE

FILE NUMBER: BRC 5550 of 2019

Mr Fogiel

Applicant

And

Ms Chase

Respondent

REASONS FOR JUDGMENT

1. In 2018 the parties to this application commenced to live together. They married in 2019 and separated on 27 April 2019. Now, the Applicant applies to the Court for a declaration of nullity in respect of the marriage.

2. In his supporting affidavit of evidence, the Applicant says he seeks the declaration of nullity because he “forced” the Respondent to marry him. He says he “intimidated her and pressured her into marriage” and that she was “under duress” and that she married him “against her will and better judgment”.  He says she married him “out of fear”. That is the extent of his evidence about this critical issue.

3. An affidavit sworn by the Respondent was filed on the same date as the Initiating Application. In that affidavit, the Respondent says she is “seeking a nullity of marriage on the grounds of consent to the marriage was obtained under duress.” She says “I was coerced by [the Applicant] into marriage against my will of better judgement (sic). I was forced, pressured & intimidated into marriage out of fear.”

4. That is the extent of what each party said in their affidavits on the critical issue of consent.

5. Concerned about the matter and wanting to hear more from the parties, I rejected the Applicant’s initial request to appear by telephone at the hearing. At that hearing, on 11 November 2019, the Respondent appeared in person, but the Applicant did not appear, even though he had been notified that his personal appearance at Court was required.

6. At that hearing, I asked the Respondent why she wanted the marriage nullified. She said:

   It was his idea. I was happy just to cruise along.

7. I asked her why she could not wait for separation of twelve months and to have the marriage dissolved. She said:

   That’s what my daughter says … I was happy to do that … wait twelve months … I’m happy to do that.

8. I said to her:

   My assessment of you, quickly formed, and it may be wrong, is you don’t look to me the sort of person to very easily be forced into marrying someone against your will.

   In response, she said:

   It wasn’t so much against my will. He just made all the plans and he invited all his friends and the week before I thought I’d better pull my finger out and start organising stuff and … yeah.

   I then said:

   You don’t really suggest that he completely supressed your own will?

   In response, she said:

   That was, he wrote all that, he wrote all that and he told me to copy. He wrote all that and told me to copy exactly what he wrote, so I did, yeah.

   A little later, she said:

   It was his words, not my words your Honour, I don’t lie. He lies.

9. I adjourned the hearing until Tuesday, 3 December 2019. On that day, the Applicant appeared in person. I had excused the Respondent’s personal appearance and told her she could appear by telephone. She did not call in and did not appear.

10. When I asked the Applicant why he particularly wanted a declaration of nullity rather than waiting for the twelve months to expire and applying for a dissolution of the marriage, he told me that friends of his had advised him that this was the way to go. I asked him if he was wanting to marry again, soon. He told me that he has a new partner and that she particularly wanted the Respondent “out of our lives all together so that she and I … can start our lives fresh”.  He denied a desire to marry again soon. I gave him every opportunity to make any submissions to me that he wished to make and I told him that at first blush I was not persuaded that a declaration of nullity should be made in this case.

11. I reserved my decision.

The Law

1. Relevantly, section 23B of the Marriage Act 1961(Cth) provides:

   (1)A marriage to which this Division applies that takes place after [1985] is void where:

   …

   (d)the consent of either of the parties is not a real consent because:

   (i)       it was obtained by duress or fraud;

   …

2. Fraud is not sought to be relied upon in this application, but rather it is being contended that the consent of the Respondent was not a real consent because it was obtained by duress.

3. For a marriage to be valid, the marrying parties must freely and voluntarily consent to enter into the marriage.  If the consent of one party is obtained by force or the threat of force it cannot be considered to be a real consent, freely and voluntarily given.

4. As might be expected, there is not a great deal of case law discussing the requisite statutory provision.

5. In a 1970 English case, Szechter v Szechter [1970] All ER 905 at p 915, Sir Jocelyn Simon P said:

   In order for the impediment of duress to vitiate an otherwise valid marriage it must … be proved that the will of one of the parties thereto has been overborne by genuine and reasonably held fear caused by threat of immediate danger, for which the party is not himself responsible, to life, limb, or liberty so that the constraint destroys the reality of consent to ordinary wedlock.

6. Our own Lindenmayer J said in Teves and Campomayor (1995) FLC 92-578 at p 81,739:

   It is duress at the time of the marriage ceremony that is critical. Clearly this can be induced by events prior to it, but in the end it is for the applicant to show that at the time she gave her consent at the ceremony, some overbearing force was operating.

7. Remarkably, in the case before me now, the Applicant is the party who says he was the one who acted in a way that constituted duress that vitiates the Respondent’s consent. It is the Applicant who is seeking the ‘indulgence’ of the Court in making the declaration he seeks to void the marriage. The Respondent, who wrote an affidavit at the request of the Applicant in support of his application, using words she told the Court were the words of the Applicant and not her own, could not be said to be enthusiastically supporting the case of the Applicant.

8. The Applicant may have been very persuasive in having the Respondent agree to marry him earlier this year, but I am very far from being persuaded myself, on the evidence adduced in this case or the words that fell from the parties on the occasions each appeared before me, to accept that the Respondent’s consent to marry the Applicant was not a real consent as being vitiated by duress. The evidence is plainly deficient.

9. I dismiss the application. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 5 December 2019.

Associate:

Date:  5 December 2019