Gani and Drasha
[2017] FamCA 475
•7 July 2017
FAMILY COURT OF AUSTRALIA
| GANI & DRASHA | [2017] FamCA 475 |
| FAMILY LAW – MARRIAGE – NULLITY – Application for declaration of nullity of marriage - Whether husband’s consent obtained by fraud – Where the husband asserted that the wife did not disclose her previous marriage – Fraud as to nature of the ceremony or identity of the other party – No grounds for nullity of marriage established – Findings that fraud did not occur – Application dismissed. |
| Evidence Act 1995 (Cth) s 140 Marriage Act 1985 (Cth) s 23B |
| Otway & Otway (1987) FLC 91-807 Osman & Mourrali (1990) FLC 92-111 Hosking & Hosking (1995) FLC 92-579 Carroll & Sinclair [2011] FamCA 651 Valen & Chirere [2013] FamCA 595 Walton & Esposito [2016] FamCA 336 Kennedy & Smith [2003] FamCA 136 |
| APPLICANT: | Mr Gani |
| RESPONDENT: | Ms Drasha |
| FILE NUMBER: | MLC | 7387 | of | 2015 |
| DATE DELIVERED: | 7 July 2017 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 19 April 2017 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Combie |
| SOLICITORS FOR THE RESPONDENT: | Cornish Lawyers |
Orders
The husband’s Initiating Application filed 30 January 2017 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 Gani & Drasha 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 MELBOURNE |
FILE NUMBER: MLC7387/2015
| Mr Gani |
Applicant
And
| Ms Drasha |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Initiating Application filed 30 January 2017, Mr Gani (“the husband”) seeks an order that the marriage solemnised between himself and Ms Drasha (“the wife”) in Australia in 2008 be declared void. As ultimately refined during the course of the hearing before me, the basis for that claim was that the husband did not provide real consent to the marriage because it was obtained by fraud. The fraud is said to comprise the wife’s misrepresentation that she had not previously been married, whereas, it is now common ground that indeed she had previously been married and divorced.
The wife opposes the application.
THE CONDUCT OF THE HEARING
The way in which the hearing proceeded before me was a little unusual. Even though the parties were in considerable disagreement as to a number of factual matters, neither the self-represented husband nor counsel for the wife, sought to conduct any cross-examination of the other party. I explained to the husband that in consequence, it may not be possible to resolve conflicting facts unless there were contemporaneous documentation which tended to show that one party’s version was more probable than the other, or that there was an inherent plausibility or implausibility in a particular version. Further, I indicated to the husband that the allegation of fraud was a serious one, which engaged s 140 of the Evidence Act, and the onus of proof lay with the husband to establish the alleged fraud.
THE FACTS
The husband was born in India in 1977, and hence is presently 39 years of age. The wife was born in India in 1978, and hence is presently 38 years of age. Both identify as being high class Indians.
In 1998 the husband moved to reside permanently in Australia, and has resided here ever since.
In 2001 the wife married a Mr B in India. She was then 22 years of age. However the marriage was not successful and the wife and Mr B divorced on 9 October 2002, which divorce took effect from 7 January 2003. It appears as though the failure of the marriage was viewed poorly by the wife and her family, as in her affidavit filed 17 March 2017, the wife said “however, as I had shamed my family and myself I left India to make a life for myself in New Zealand. The [husband] is very aware of the shame that such personal circumstances bring on a woman in India.”
It appears as though Indian custom still sees arranged marriages between persons, even if both prospective spouses live overseas. Parents of a prospective spouse commonly place one or more newspaper advertisements seeking to elicit expressions of interest from other families with a prospective marriageable spouse. On a date which is unclear, the husband’s parents placed such an advertisement, and the wife’s parents responded to it. The two sets of parents met in City C to discuss the potential match. The husband’s evidence is that “at no point was [the wife’s] previous history or background mentioned by [the wife] or her parents.” It is not said that the husband was present at this meeting and therefore that evidence must necessarily be hearsay, however the husband’s parents are both deceased. I give that evidence some weight.
Thereafter, the husband and the wife commenced to communicate through phone and text message with a view to meeting in City C in the presence of their respective families. The husband says that during those conversations the wife made no mention of her previous marriage, and implicitly the wife appears to accept that.
It seems as though the parties first had a face-to-face meeting in either January or early February 2007, although in Australia rather than India. Particularly, paragraph 26 of the wife’s trial affidavit says:
I say that I travelled from New Zealand to Melbourne, where [Mr Gani] was living at that time, on or about the end of January/early February 2007 for the purposes of meeting him personally. During that visit I told [Mr Gani] that when I was living in India I had been briefly married to an Indian man. I told him that the marriage had been very short and that we subsequently divorced. I told [Mr Gani] about the marriage on a face-to face meeting so that I could gauge his reaction. I wanted to be sure that any person I married was okay with my past. He was neither pleased nor displeased. He did not seem at all surprised. He said words to the effect of “It doesn’t matter”. I did not want to say “yes” to the marriage until I knew that my previous marriage was of no issue to [Mr Gani].
On the other hand the husband appears to dispute that conversation as he says “I have never been told about her legally married status…”
I will consider this conflict of evidence in greater detail in due course.
After that meeting, the wife returned to New Zealand and commenced seeking employment in Australia, in which quest she was ultimately successful. She inquired of the husband whether she could stay with him in his house in Melbourne, and in June 2007 she did so. She began working in her new employment four days later. However the wife told the husband that her parents were not very receptive to the idea of them living together in the same house without any formal relationship, and seemingly to appease her parents, on 28 July 2008 the parties were informally married in Melbourne in a Hindu ceremony conducted by a temple priest. It is common ground that marriage ceremony did not effect a legal marriage in Australia. It appears as though the parties intended to later have a formal Hindu marriage in India, which marriage would be then recognised in Australia. In anticipation of that, the respective sets of parents continued discussions about a wedding in India, however the husband’s father passed away in late 2007 before that wedding could occur. The parties immediately then travelled to India for the funeral, but for whatever reason, no wedding then ensued.
After the parties returned to Australia, in January 2008 the wife requested that the parties formally marry in Australia. They did so in early 2008, in a registry wedding at which there were four witnesses only, being the wife’s then manager and husband, together with two New Zealand friends.
An important matter in the husband’s case is the declaration which it is conceded the wife made on that occasion, that she had not been previously married. At paragraph 16 of his trial affidavit the husband said:
The marriage celebrant completed the formalities on the day however, I do recall as part of the declaration she asked if either party was previously married to which [Ms. Drasha] responded a “No”. I advised the marriage celebrant of our marriage at the Hindu temple in [Suburb D], Victoria some 6 months ago and the celebrant advised that this was not an issue and the declaration is for people previously married to someone else. I hereby attach a copy of the marriage certificate from this civil marriage. Annexed hereto and marked “RG1” is a true copy of the attachment.
For her part, at paragraph 48 of her affidavit the wife says:
With regards to paragraph 16 I say that in relation to conjugal status [Mr Gani] told me to say Never Validly Married. He explained that our Hindu wedding in temple was not a valid marriage. My first marriage had also been a Hindu wedding.
Ordinarily, subsequent events would be irrelevant, as it is the husband’s state of mind as at 1 March 2008 which is the critical matter for consideration in relation to the allegation of fraud. However the husband says that the wife’s family’s behaviour thereafter is confirmatory of her family’s attempt to mislead him as to the mother’s past history. Particularly he says that:
During the length of the relationship, I was never introduced to any of [the wife’s] relatives or extended family. [The wife] always insisted that her relatives lived at some distance and insisted that she stays alone with her parents on each visit to India as she wanted to spend time with her family.
However the wife does not accept that the husband did not stay with her family on visits to India, and at paragraph 50 of her trial affidavit specifically deposed that when the parties did visit India on at least one occasion with the children, they stayed with her parents who “[a]lthough I also brought shame on my own parents they nonetheless welcomed [the husband] myself and the children.”
As is obvious from the foregoing, indeed the party’s marriage did bear children. The first was X born in 2009 followed some years later by Y born in 2013.
In 2014 the husband’s mother passed away, and the wife’s parents attended the funeral in India.
In April 2015 the husband obtained employment in an important role in Sydney and moved there. The wife and children remained in Melbourne, with the husband returning to visit them on occasion. In July 2015 the wife’s parents visited Melbourne during which time there appears to have been some disputation between them and the husband.
It is not in contest that the parties finally separated on 27 July 2015.
The wife commenced proceedings in the Federal Circuit Court on 5 August 2015. It appears as though these proceedings have been characterised by allegations of family violence by the wife, and of fraud and deception by the husband. Particularly the husband relies upon the wife’s solicitor’s conduct in the proceedings as again demonstrating the wife’s earlier fraud in relation to concealing her first marriage from him, in that he says the solicitors were reluctant to produce evidence of the prior marriage, and the subsequent divorce. However it does not seem to be in contest that indeed, albeit belatedly, the certificate of divorce was produced after it had been obtained from the Indian Court that made it.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
Section 23B of the Marriage Act 1985 (Cth) relevantly provides:
23B Grounds on which marriages are void
(1)A marriage to which this Division applies that takes place after the commencement of s 13 of the Marriage and Amendment Act 1985 is void where:
(a)…
(b)…
(c)…
(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)…
and not otherwise.
“Fraud” as used in that provision is only as to the identity of the other party or as to the nature of the ceremony: see Otway & Otway (1987) FLC 91-807; Osman & Mourrali (1990) FLC 92-111; Hosking & Hosking (1995) FLC 92-579; Carroll & Sinclair [2011] FamCA 651; Valen & Chirere [2013] FamCA 595 and Walton & Esposito [2016] FamCA 336. The only authority to the contrary appears to be Deniz & Deniz (1977) FLC 90-252, however not only does the decision of the Full Court in Kennedy & Smith [2003] FamCA 136 not appear to support it (but rather seems to prefer Osman & Mourrali and Hosking), but further, for the reasons advanced by Nygh J in Osman & Mourrali, and by Lindenmayer J in Hosking & Hosking, even if it is open to me, I would not follow Deniz.
WAS THERE FRAUD
The fraud relied upon by the husband in this case was not as to the identity of the wife or as to the nature of the ceremony which he undertook in 2008. Therefore unsurprisingly, the evidence does not establish fraud within the meaning of that term in s 23(B)(1)(d)(1). However to cover the eventuality that fraud of the kind relied on by the husband can be considered under s 23B, I should record that I am nonetheless not satisfied there was any fraud practised upon the husband. Particularly (and bearing in mind that the onus is on the husband):
·The husband’s traverse of the wife’s version of their January/February 2007 face-to-face conversation in Melbourne is somewhat equivocal. Initially he points out that paragraph is contradictory to an earlier paragraph (which he subsequently successfully objected to) but then does not specifically deny the conversation, instead rather saying “I have never been told about her legally married status…” To my mind that is consistent with him being aware of a Hindu ceremony which had not been followed up by the more traditional series of receptions;
·The husband’s failure to otherwise challenge the wife’s version of events on that occasion by cross-examination at trial is a matter which I give some, but not great, weight;
·I am satisfied that thereafter indeed the husband and family did stay with the wife’s parents in India, but that any coldness which he may have experienced from those visits was likely associated with her family’s perception that her earlier marriage had indeed brought shame on the family;
·I am not satisfied that the wife’s solicitor’s conduct is indicative of any attempt to continue to conceal the wife’s earlier marriage from the husband.
However again, even if I am wrong as to that, then nowhere in the husband’s material is there any suggestion that, had he known of the earlier marriage and divorce of the wife, he would not have consented to marry her in 2008. The closest is paragraph 15 of the husband’s affidavit filed 24 March 2017, which essentially simply restates s 23B. Critically what is missing is any assertion that, had he been aware of the wife’s earlier marriage, he would not have consented to marrying her. In my view this is fatal to the husband’s claim.
CONCLUSION
For these reasons the husband’s Initiating Application filed 30 January 2017 will be dismissed.
I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 7 July 2017.
Associate:
Date: 7 July 2017
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