Futiya & Medved
[2025] FedCFamC1F 244
•16 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Futiya & Medved [2025] FedCFamC1F 244
File number(s): SYC 8494 of 2024 Judgment of: SIMPSON J Date of judgment: 16 April 2025 Catchwords: FAMILY LAW – NULLITY – where the husband seeks a decree of nullity – where the wife did not participate in the hearing – husband’s disappointment with the marriage – where the husband submits that the reasons for which the wife married him are not genuine – where the husband accepts he entered into the marriage freely and consensually – where the husband accepts he was not mistaken as to the nature of the marriage ceremony – where the husband accepts he understood the effect of being married – husband’s misunderstanding of duress in the context of nullity – no ground of nullity established – application for a decree of nullity dismissed. Legislation: Family Law Act 1975 (Cth) s 48
Marriage Act 1961 (Cth) s 23B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 2.49
Family Law Regulations 2024 (Cth) Pt 10 Div 2
Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters
Cases cited: Cisek & Ghanem [2023] FedCFamC1F 293
Hamwi & Omar [2012] FamCAFC 174
Hosking & Hosking (1995) FLC 92-579
Jain & Hingston [2021] FamCA 644
Osman & Mourrali (1990) FLC 92-111
Division: Division 1 First Instance Number of paragraphs: 38 Date of hearing: 10 April 2025 Place: Sydney Solicitor for the Applicant: Ms Gaetani of Coutts Lawyers & Conveyancers For the Respondent: The Respondent did not appear ORDERS
SYC 8494 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FUTIYA
Applicant
AND: MS MEDVED
Respondent
ORDER MADE BY:
SIMPSON J
DATE OF ORDER:
16 APRIL 2025
THE COURT ORDERS THAT:
1.The Initiating Application filed on 28 October 2024 be dismissed.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Futiya & Medved has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SIMPSON J:
By way of an Initiating Application filed 28 October 2024, the applicant husband, Mr Futiya (“the husband”), seeks a declaration that the marriage entered into between he and the respondent wife, Ms Medved (“the wife”) is a nullity.
The husband relies upon his Initiating Application and an affidavit, sworn on 28 October 2024.
BACKGROUND
The husband was born in 1957 and is 67 years old. The wife was born in 1984 and is 40 years old.
The parties married in Suburb B, NSW in early 2024 and their Marriage Certificate was admitted and marked as Exhibit A.
Final separation occurred on 17 March 2024.
The husband deposes to becoming aware of the wife in or around December 2023 through people who were part of his church community. In early January 2024, he met the wife, along with her daughter and one of his friends. The wife did not speak English and the friend assisted to provide interpretation of their discussions.
The husband was advised, in that discussion, that the wife “was rich and she wants to pay $60,000 to get married”. The husband indicates that he said “let me think about it” as he did not want to embarrass the wife, in front of her child, by saying no.
Subsequent discussions occurred and the husband deposes to “dating” the wife and then experiencing “pressure” from the wife to marry.
He attended upon an immigration lawyer with the wife in early February 2024.
The husband says he remained reluctant to marry and pointed out to the wife reasons why she should not marry him (including their 26 year age difference and certain challenges to his health). He says the wife responded to the effect “I love you and I want to get married”. He says he was convinced as to her sentiment and agreed to marry. He was not paid any funds to marry the wife.
One week into their marriage, the husband indicated to the wife that it “is not working out” and he advised her of his unhappiness. He sets out in his affidavit that following their marriage, the parties did not share a bedroom (and, I infer, were not sexually intimate) and that the wife effectively lived in a bedroom, separate to him, with her child. None of the household tasks were shared between the parties; each took care of themselves including meal preparation.
The husband deposes to becoming aware, after marriage, that he was the immigration sponsor for the wife’s child. He states that he had not agreed to provide that sponsorship (which has since been cancelled).
Separation occurred on 17 March 2024 when the husband concluded that the marriage was “not working out” and he advised the wife of his requirement that she leave. The husband deposes to the wife leaving Australia in early 2024 and to him not having had communication with her since then.
SERVICE
The husband lodged an Application in a Proceeding (and supporting affidavit by a clerk employed in the office of his solicitors) on 9 April 2025 seeking to dispense with the requirement to serve other documents upon the wife as required by subsequent orders made in this matter prior to the hearing. Despite the irregularities in service I have outlined below, I advised the husband’s solicitor that I was content to hear his application and that I would address issues relating to service in these reasons.
The husband filed his Initiating Application on 28 October 2024. On 26 November 2024, by way of orders made by a Judicial Registrar, the husband was directed to serve the wife with sealed copies of his application and affidavit (and the orders made). It appears that consideration was not given, at that time, to the fact that the wife was no longer in Australia and whether special arrangements for service outside of this country might be necessary.
No application was made by the husband to effect service in accordance with r 2.49 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and, or, the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters as implemented by Pt 10 Div 2 of the Family Law Regulations 2024 (Cth).
The husband engaged a process server working in Country C and I have had regard to the Affidavit of Service filed on 28 January 2025.
I am satisfied that the wife, who was identified by the agent, received the husband’s Initiating Application and associated documents on 2 January 2025. I accept that in that way, the wife had some notice of these proceedings commenced by the husband. I observe that based on the Affidavit of Service, the documents may not have been translated into another language (noting that the husband has indicated that the wife does not speak English); I infer that she may not be able to read English either but have no evidence about that issue.
There was no appearance for or by the wife at the hearing and it appears that the wife has taken no active step in the proceedings. Given the determination I will make in these reasons, I am satisfied that no prejudice befalls the wife in proceeding in her absence.
THE HEARING
I foreshadowed with the husband’s solicitor, before inviting her submissions, that I was not able to see how the matters addressed by her client in his evidence would be sufficient to support the making of an order as sought by her client.
The husband’s solicitor submitted that her client sought that the marriage be declared void in accordance with section 23B of the Marriage Act 1961 (Cth) (“the Marriage Act”) on the basis that, in effect, the marriage was obtained by either or both of duress and fraud.
Relevantly, s 23B of the Marriage Act states states as follows:
23B Grounds on which marriages are void
(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.
Submissions were made addressing the evidence, particularly the circumstances under which the parties met as well as the deficiencies in the marriage (as perceived by the husband) once cohabitation occurred (after the marriage). It was submitted that the husband felt pressured to marry and that the marriage was for immigration purposes, to assist the wife.
The husband’s solicitor, quite properly, conceded that the husband was not asserting any misunderstanding or confusion on his part as to the nature of the ceremony but she returned, ultimately, to his disappointment that the union did not turn out to be a “traditional” marriage.
DETERMINATION
I accept the husband’s evidence that he entered the marriage freely, having been persuaded by the wife that she loved him. He was prepared to put aside his initial misgivings about the union and the differences between them (as set out in his affidavit).
Furthermore, the husband accepts that he was not confused or misled as to the nature of the ceremony performed or the effect of becoming married, and the Marriage Certificate makes clear that the formal requirements under the Marriage Act were met.
I further accept that the husband became disappointed that the marriage did not meet his expectations such that he decided, after seven days, that the marriage was over and advised the wife to that effect at that time. Fourteen days after they married, the wife left Australia, and the husband has had no contact with her since then.
In Osman & Mourrali (1990) FLC 92-111 (“Osman”) at 77,743 Nygh J observed that before making a decree of annulment, the court must be satisfied that:
… 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.
This line of reasoning has been accepted and applied consistently since. In Jain & Hingston [2021] FamCA 644, Howard J described it as the “orthodox approach which has been consistently followed by the Judges of this Court for a very long time” (at [17]).
On the husband’s own evidence, he agreed to the marriage (having been persuaded despite his initial misgivings) and he makes no assertion that the person he married was someone other than the wife. There was no mistake on either limb as set out in Osman.
To the extent that the husband may be asserting that the marriage was in fact “a sham” (though those words were not used by his solicitor), I have had regard to the decision of Lindenmayer J in Hosking & Hosking (1995) FLC 92-579 to the effect that the purpose of a marriage should not impact on the validity of the marriage, if the marriage has been entered into in accordance with the Marriage Act. At 81,479 his Honour observed:
Should a court ever be entitled to say that a party's reasons for marriage are so improper that it will declare their marriage void? The answer, in my view, must be a resounding "no".
Relevantly, Nygh J in Osman stated at 77,743:
But if a person wishes to go through a ceremony of marriage with a person whose identity he or she is aware of, then it matters not that that consent is induced by promises of eternal happiness, luxurious living or even the promise to live together for ever after. For, if it were a ground that a marriage could be annulled on the ground that a party was defrauded as to the intention to cohabit, where should the court draw the line?
I have had regard to the helpful analysis undertaken by Riethmuller J in Cisek & Ghanem [2023] FedCFamC1F 293 (“Cisek & Ghanem”) as to the law in this country as to sham marriages and the wider discourse about certain perceived deficiencies in that jurisprudence in a modern world where attitudes to marriage may have changed.
At this time, however, I consider that the well settled authority, or orthodox approach, does not assist the husband’s case. The fact that the husband believes that the wife’s intentions and reasons for marriage were not “traditional” or genuine, or that she may have had an ulterior motive, do not assist him in the orders he seeks.
The other aspect of the complaint by the husband was to the effect that he experienced duress in entering into the marriage. The way in which the husband uses that term in aid of this argument falls, with respect, well short of the understanding of duress in this context.
I have regard to the discussion in Cisek & Ghanem at paragraphs 31 to 34 as to the meaning of duress in this part of the Marriage Act. To that end, there is no evidence before this Court to support a contention that the husband’s will had been “overborne” (see Hamwi & Omar [2012] FamCAFC 174) or that his consent was anything other than freely given.
OUTCOME
I have no alternative but to dismiss the husband’s application for a decree of nullity in these circumstances.
The husband remains at liberty to seek a divorce order in the usual course, once he is in a position to satisfy the grounds required under section 48 of the Family Law Act 1975 (Cth).
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Simpson. Associate:
Dated: 16 April 2025
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