GARNER & LEE - [2011] FamCA 1000

FAMILY COURT OF AUSTRALIA

GARNER & LEE

[2011] FamCA 1000

FAMILY LAW – Marriage annulment: granted

Evidence Act (1995) (Cth)
Family Law Act 1975 (Cth)
Marriage Act 1961 (Cth)

APPLICANT:

Mr Garner

RESPONDENT:

Ms Lee

FILE NUMBER:

MLC

8496

2011

DATE DELIVERED:

28 November 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

28 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr P Davis

SOLICITOR FOR THE APPLICANT:

Barbayannis Lawyers

THE RESPONDENT:

No appearance

Orders

That the applicant have leave to proceed forthwith in the absence of the respondent.
That the marriage celebrated at Suburb B on … 2011 is declared to be void.
That all outstanding applications are otherwise dismissed.
That a copy of the reasons for judgment this day, the affidavit of the applicant and his daughter together with a copy of this order be referred to the Department of Immigration and Citizenship by the Registry Manager of the Family Court of Australia, Melbourne Registry for consideration as to whether there has been a breach of any Australian law.

IT IS NOTED that publication of this judgment under the pseudonym Garner & Lee is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8496 of 2011

Mr Garner

Applicant

And

Ms Lee

Respondent

REASONS FOR JUDGMENT

This is an application filed on 20 September 2011 by Mr Garner seeking an annulment of a marriage that took place in 2011 at Suburb B. The respondent is Ms Lee, who is shown on the marriage certificate as the wife. The application was served personally on Ms Lee on 17 October 2011, and the person who served the documents requested that Ms Lee sign and acknowledge the service. The acknowledgement of service which has been filed on 21 November has a signature on it which bears a remarkable resemblance to the signature on the certificate of the marriage between the parties that has been filed by the applicant.
Having been served with the application, there has been no documents filed by the respondent. She was called this morning and has not appeared. The evidence filed by the applicant indicates that she is aware of the proceedings but does not want to participate.
The application seeks an order that the marriage is void because the applicant did not understand the identity of the respondent or the nature of the ceremony performed.
The facts in this case are rather brief. Mr Garner has given evidence this morning with the assistance of a Country C interpreter. The Country C language is his natural language, although he acknowledged that he spoke with the respondent in the English language. The applicant said that he met the respondent at a coffee shop where she was working in December last year. This was the coffee shop that his daughter was purchasing. There was daily contact between the applicant and the respondent, and he said that he came to know her quite well. She told him that she was a student from Country D wishing to stay in Australia, and she asked him if she could move into his unit because the rental that she was obliged to pay was too expensive. He agreed that she could stay.
On 3 February 2011 at approximately 9 o’clock in the morning, at the request of the respondent, both applicant and respondent attended an office in Suburb B for the purposes of, according to the applicant, verifying where she was living. There is a certain synergy about all of that. The applicant’s evidence is that the respondent asked him to go to this particular address for the purposes of immigration issues. That is somewhat perplexing because, as later transpired, the applicant’s daughter found some documents in the English language which purport to be some advice for people about living together after they marry one another, and also what appears to be a script that a marriage celebrant might follow in a wedding ceremony.
Attached to one of those documents is what appears to be a business card with a photograph. The document itself describes the person depicted as the chief executive officer of a company called E Pty Ltd, and the person named is Mr G. I note that the marriage certificate describes the marriage celebrant as Mr G and that Mr G described himself as an authorised marriage celebrant by virtue of the fact that he had a registration number. How this all connects with immigration issues is hard to follow. The applicant was not in a position to say that Mr G was also an immigration agent. If he was an immigration agent, then I suspect the relevant authorities of the Commonwealth of Australia need to investigate this matter carefully.
Mr Garner’s evidence was that, having arrived at the H Street address in Suburb B, he entered the property by climbing a flight of stairs, and when he entered a room, there were some people present. He described them as two Asian women and one Asian man, all of whom were speaking in a language that he could not understand. He said that he was in the room for about 10 to 15 minutes. He said that no English was spoken. That must be contrasted with the document that his daughter subsequently found. The document clearly was prepared in advance of that meeting, because if it was a pro forma document for a wedding. The celebrant has put the respective parties’ names into the narrative on a number of occasions. The applicant gave evidence that he had no understanding of whether that document was followed, because the whole of the time, all of the people there were speaking in an Asian language.
At the conclusion of this discussion at which he was present, he was asked to sign a document, which he did, and then his photograph was taken. In relation to the understanding of what he was there for, I am satisfied that he thought that he was there to assist the respondent remain in Australia. Subsequent to the wedding, the parties left and continued to live together. It was some time later that problems occurred between them, giving rise to an intervention order. None of those matters is relevant to the application, because the critical question is what he understood he was doing on 3 February. However, one of the documents that the applicant’s daughter found was a copy of a medical examination undertaken on the respondent.
There is a large age difference between the applicant and the respondent. It would not be unusual to see people of age differences marrying one another, but looking at the date upon which the documents were filed, it is quite clear that the respondent was endeavouring to remain in Australia on a visa because of her student requirements. The documents show that, around the same time as the wedding occurred, the respondent was indicating that she was living with the applicant.
The Family Law Act 1975 (Cth) (“the Act”) permits a court to grant an annulment of the marriage if the marriage is void. Section 23B of the Marriage Act 1961 (Cth) sets out that a marriage is void where the consent of either of the parties is not a real consent because that party is mistaken as to the nature of the ceremony performed.
The evidence of the applicant is unchallenged because the respondent is not here to deny what he says, and that is relevant because she has been served with the documents.
An undefended hearing does not necessarily mean that the applicant obtains an order by default. Here, however, all of the material strongly suggests that this happened in a whirlwind, and there is no logical reason why the applicant would be marrying a young woman substantially younger than himself. There is no logical reason why he would go through a process of marriage where he only attended the marriage celebrant on the day of the wedding. There is no suggestion here of what time before the date of the marriage, any arrangements were made for this wedding. There is no evidence before me as to whether or not time requirements were waived by the marriage celebrant. All of this sounds very odd having regard to the speed at which it all occurred.
I have to be satisfied on the balance of probabilities, albeit in this case, using s 140(2), of the Evidence Act (1995) (Cth) that the evidence establishes what the applicant purports is the case. I am satisfied here that all of the evidence points to the fact that he had no idea what he was doing if it was suggested that he was participating in a marriage. On that basis, the marriage must be deemed to have been inappropriate and void.
In discussions, I have indicated some concern that a marriage celebrant would conduct a proceeding in this way. The unusual feature of this case is that the applicant’s daughter went to see the marriage celebrant when she ascertained that her father had married the respondent. The evidence is that she spoke to a person by the name of Mr G. There is a consistency about the same person named Mr G on the business card to which I have referred. She said that she told Mr G that there had not been a proper marriage ceremony between her father and the respondent because he was not aware that he had been married. She told Mr G that her father did not speak nor read English. The celebrant said that her father did understand that he was being married, and the parties begged to disagree. She then left.
Prior to leaving, however, the applicant’s daughter said that two people arrived at the office and, in her presence, Mr G asked them if they were arriving for the purposes of him marrying them. Both of them said they were not there for that purpose. The daughter threatened to report Mr G to the appropriate authorities.
I am sufficiently concerned about that piece of evidence, as well as the evidence of the applicant, to have these documents brought to the attention of the Minister for Immigration, having regard to the regularity with which these problems occur. Accordingly, I will direct that the affidavits of the applicant and his daughter, together with a copy of this judgment, be sent by the registry manager to the relevant secretary to the Department of Immigration for their consideration of and investigation.
In the matter of Garner & Lee, I declare that the marriage ceremony conducted in 2011 at Suburb B is void.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 28 November 2011.

Associate:

Date: 5 January 2012