Gaffney & Sorenson - [2023] FedCFamC1F 327

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gaffney & Sorenson [2023] FedCFamC1F 327

File number: PAC 7083 of 2022

Judgment of: REES J

Date of judgment: 28 April 2023

Catchwords: FAMILY LAW – NULLITY OF MARRIAGE – Whether marriage was obtained by duress – Whether the will of the husband was overborne – Inadmissible evidence – Where the husband married the wife because he was of the belief that by doing so he would improve her circumstance – Duress not established.

Legislation: Marriage Act 1961 (Cth) s 23B

Cases cited:
Hana & Oraha [2012] FamCAFC 174

In the Marriage of Teves III and Campomayor [1994] FLC 92-578

Division: Division 1 First Instance

Number of paragraphs: 19

Date of hearing: 28 April 2023

Place: Sydney

Applicant: Litigant in person

Respondent: No appearance
ORDERS

PAC 7083 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR GAFFNEY

Applicant

AND:
MS SORENSON

Respondent

order made by:

REES J

DATE OF ORDER:

28 APRIL 2023

THE COURT ORDERS:
1.That the application filed 23 December 2022 seeking a decree of nullity in relation to the marriage between the parties solemnised in 2017 is 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Gaffney & Sorenson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:

By an application filed 23 December 2022, Mr Gaffney (“the husband”) seeks a decree of nullity in relation to his marriage to Ms Sorenson (“the wife”).
The husband relies on an affidavit sworn by him on 20 November 2022. The wife has filed a Submitting Notice.
THE LAW
The grounds on which a marriage is void are set out in s 23B of the Marriage Act 1961 (Cth):
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gaffney & Sorenson

Details

AGLC: Gaffney & Sorenson [2023] FedCFamC1F 327
Case: [2023] FedCFamC1F 327
Decision Date

CaseChat Overview and Summary

Gaffney & Sorenson involved a dispute between a husband and his wife, where the husband sought to have their marriage declared invalid on the basis of duress. The case was heard in the Federal Circuit Court of Australia. The husband argued that his wife's dire circumstances in immigration detention, including her fears for her safety and severe depression, amounted to duress that compelled him to marry her. He claimed that his marriage was based on a mistaken belief that it would improve her situation and secure her release from detention.

The legal issue before the court was whether the husband's marriage to the wife was induced by duress. The court had to determine whether the husband's mistaken belief about the potential benefits of the marriage could constitute duress. The court also needed to assess whether the wife's situation in immigration detention was sufficiently coercive to overbear the husband's will and thereby invalidate his consent to the marriage.

The court found that the husband's evidence regarding the wife's circumstances was inadmissible as it contained confidential information. Furthermore, the court held that even if the husband's assertions were admissible, they did not amount to duress. The husband's decision to marry was based on a mistaken belief about the benefits of the marriage, not on any coercive pressure exerted by the wife. The court concluded that the husband's consent was genuine and not overborne, and therefore the marriage remained valid.

The court dismissed the husband's application, affirming the validity of the marriage.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It is clear from the authorities that the significance of the asserted duress is that the will of a party contracting marriage has been overborne and thus that party’s consent is not real.THE EVIDENCE The husband deposed that he and the wife “started dating” in early 2015. In mid-2015, the wife, who is not an Australian citizen, was placed in immigration detention because she did not have a valid visa. The wife did not give evidence. The husband bears the onus of proving, by admissible evidence, the facts upon which he relies. He has not done so. Relevantly, the husband sought to rely upon the following passages from his affidavit:7.[The wife] has fears for her safety in detention as there is an obvious risk to her safety in Immigration detention for the reasons of her protection claim in Australia. (Details of [the wife’s] protection visa application is private and confidential).8.[The wife] was extremely depressed and suicidal suffering from a painful […] injury from when two […] detainees had tried to [attack her] inside Immigration detention. She was also suffering from severe anxiety in her circumstances. That evidence is inadmissible and I am obliged to reject it. However, had admissible evidence been available to prove those assertions, I would not have been satisfied that this constituted duress upon the husband. The husband deposed,10.I thought that if I married [the wife] that the Immigration Department would let her out of Immigration detention and let her live in safety, and her son would get his mum back. It’s heart wrenching to see [the wife’s] child missing his mum. The husband married the wife because he was of the mistaken belief that by doing so, he would improve her circumstances. There was no duress. The application will be dismissed.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number:	PAC 7083 of 2022
Judgment of:	REES J
Date of judgment:	28 April 2023
Catchwords:	FAMILY LAW – NULLITY OF MARRIAGE – Whether marriage was obtained by duress – Whether the will of the husband was overborne – Inadmissible evidence – Where the husband married the wife because he was of the belief that by doing so he would improve her circumstance – Duress not established.
Legislation:	Marriage Act 1961 (Cth) s 23B
Cases cited:	Hana & Oraha [2012] FamCAFC 174 In the Marriage of Teves III and Campomayor [1994] FLC 92-578
Division:	Division 1 First Instance
Number of paragraphs:	19
Date of hearing:	28 April 2023
Place:	Sydney
Applicant:	Litigant in person
Respondent:	No appearance

PAC 7083 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR GAFFNEY Applicant
AND:	MS SORENSON Respondent

order made by:	REES J
DATE OF ORDER:	28 APRIL 2023