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 the identity of the other party or as to the nature of the ceremony performed; or
(iii)that party is mentally incapable of understanding the nature and effect of the marriage ceremony; or
(e) either of the parties is not of marriageable age;
and not otherwise.
The husband relies on s 23B(1)(d)(i), asserting that his consent to the marriage was obtained by duress.
In Hana & Oraha [2012] FamCAFC 174, the Full Court held:
52.Proceedings for a declaration that a marriage is void, or a declaration of nullity, are proceedings to which the provisions of the Evidence Act 1995 (Cth) applies. The standard of proof in civil matters, including this matter, is set out in s 140.
53.The grant of a decree of nullity is not discretionary. If the facts establish that the marriage is invalid, then a decree must issue.
54.The making of a declaration that a marriage is a nullity, or that a marriage is valid, materially affects the status of both of the parties. For that reason in the process of its decision making, the Court could not properly rely on evidence that is inadmissible according to the provisions of the Evidence Act.
Further, their Honours stated, in relation to evidence sought to be relied upon,
45.… The document makes assertions and refers to conversations with third parties. It was not admissible on its face. It is not a prerequisite for rejection of evidence that there be an objection. Where a document is so obviously inadmissible, as this was, it was entirely appropriate for his Honour to reject it.
Justice Lindenmayer summarised the law relating to duress in this context in In the Marriage of Teves III and Campomayor [1994] FLC 92-578 at 81,736:
In considering this question, it is convenient to begin with the well known passage from the judgment of Collins J in Cooper (falsely called Crane) v Crane [1891] P 369 at 375-7, which states:
On these facts, is the petitioner entitled to a decree? On the one hand, it is clear law that if she did not in fact consent to the marriage the court will declare it null. On the other hand, when a person of full age and of sound mind has gone through the ceremony of marriage publicly in the presence of witnesses who discovered nothing in her demeanour to suggest constraint, and has herself complied with the formality of signing her name and answering questions without apparent difficulty or confusion, very clear and cogent evidence must be given before the presumption of consent can be rebutted and the marriage annulled... In order to hold that the ceremony so performed was not binding, I think I should have to infer as a fact one of two things - either that she was so perturbed by terror that her mind was unhinged, and she did not understand what she was doing... or that though she understood what she was doing her powers of volition were so paralyzed that, by her words and acts, she merely gave expression to the will of the respondent and not her own.
Another, similar passage has also been much quoted in subsequent cases. It reads in part:
Public policy requires that marriages should not be lightly set aside, and there is in some cases the strongest temptation to the parties more immediately interested to act in collusion in obtaining a dissolution of the marriage tie. These reasons necessitate great care and circumspection on the part of the tribunal, but they in no wise alter the principle or the grounds on which this, like any other contract may be avoided... Whenever from natural weakness of intellect or from fear - whether reasonably entertained or not - either party is actually in a state of mental incompetence to resist pressure improperly brought to bear, there is no more consent than in the case of a person of stronger intellect and more robust courage yielding to a more serious danger (per Butt J in Scott (falsely called Sebright) v Sebright (1886) 12 PD 21 at 24).
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.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 28 April 2023