HAMWI & OMAR

[2011] FamCA 202

FAMILY COURT OF AUSTRALIA

HAMWI & OMAR [2011] FamCA 202

FAMILY LAW - NULLITY - Allegation that party already lawfully married to another person

Family Law Act 1975 (Cth) – s 51
Marriage Act 1961 (Cth) – s 23B(1)

APPLICANT: Mr Hamwi

RESPONDENT: Ms Omar

FILE NUMBER: PAC 3561 of 2009

DATE DELIVERED: 8 February 2011

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Johnston J

HEARING DATE: 8 February 2011

REPRESENTATION

FOR THE APPLICANT: Mr Hamwi in person

SOLICITOR FOR THE RESPONDENT: Ms Rutkowska, Legal Aid NSW

Orders

1. That the Initiating Application filed on 23 September 2009 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3561 of 2009

Mr Hamwi

Applicant

And

Ms Omar

Respondent

REASONS FOR JUDGMENT

Introduction and Application

1. This is an application by Mr Hamwi for a decree of nullity of the marriage between himself and Ms Omar in September 2007 in Syria.  For convenience I shall refer to the parties as “the applicant” and “the respondent” respectively. 

2. The matter was listed for hearing on 5 November 2010.  On that occasion both parties asked for the hearing to be adjourned.  For this reason the hearing was adjourned to 8 February 2011.

3. The applicant was self-represented.  The respondent was represented by her solicitor Ms Rutkowska.  Both parties were assisted by Chaldean interpreters.

4. I have read all the affidavits filed in these proceedings.  Some of the material in the applicant’s affidavits is clearly inadmissible.

5. The brief background matters are as follows.  The applicant was born in 1968 in Iraq and the respondent was born in 1985 also in Iraq.  In 2006 the respondent migrated to Syria.  The parties met in mid 2007.  There is no issue that in September 2007 they married at an Orthodox Church in Syria.  There is also no issue that Father Y conducted the marriage ceremony.

6. The applicant annexed an English translation of the relevant marriage certificate at Annexure A to his affidavit sworn on 21 September 2009.  The respondent agrees that this document accurately sets out the details of the marriage.  I accept this evidence and find that the parties married in accordance with the circumstances set out in the document.

7. A few weeks after their marriage, the applicant travelled to Australia.  He subsequently sponsored the respondent for entry into Australia.  The respondent entered Australia in June 2008.  But she decided that she did not wish to stay living with the applicant.  After approximately six weeks, they separated.  That was on or about 30 July 2008 when the respondent left the applicant’s house and commenced living with her uncle in Australia.

8. The applicant says that this case is really quite simple.  He says that at the time that they entered into their marriage in Syria in September 2007, the respondent was lawfully married to another person, that person being Mr K.  The applicant asserts that that marriage took place at a mosque in Syria in August 2007.  In support of this assertion, the applicant annexed as Annexure B to his affidavit sworn on 21 September 2009 an English translation of what he says is a photocopy of the relevant marriage contract.  There has been a lot of discussion about that document in Court on this occasion and also on the earlier occasion.

9. Before I go to that document, I would just pause to note that the respondent strongly denies that she was ever married prior to September 2007, when she married the applicant.  She said that she has never met Mr K and had no idea who this man is until she had a telephone conversation with him after making an inquiry about him through her grandfather, after she became aware of the applicant’s assertions.

10. It is a matter for the applicant to prove his case.  He is the person who is asserting that the marriage in September 2007 is invalid.  He is asserting that it is invalid because at that time he says the respondent was lawfully married to another man.  There is considerable material before the Court in the applicant’s affidavits about the circumstances of this, most of which in my view is inadmissible.  But the applicant relies heavily on the document at Annexure B of his affidavit referred to above.  Strong objection is taken to this document on behalf of the wife.

11. The document purports to be a “Religious Marriage Contract” by proxy between the respondent and Mr K in August 2007.  It describes the respondent’s proxy as being Sheikh M.  Sheikh M is also described as having concluded the said Religious Marriage Contract before two witnesses D and S. 

12. Strong objection was taken to this on behalf of the wife on the basis that at its highest, it is said, it alleges that the said contract was entered into on behalf of the respondent by proxy but there is no evidence that the respondent ever entered into any proxy.  There is no document signed by her in respect of that matter.  There is nothing to indicate that she gave her consent to the actual marriage and on the document itself, there is no date to indicate when that document was created.

13. In my view, given the nature of the seriousness of this matter, those matters raise insurmountable problems in terms of this document.  One has to remember that the standard of proof is that the Court has to be satisfied on the balance of probabilities.  That is that it is more probable than not that this alleged marriage took place.  There are numerous problems with this document and I am unable to accept the document as proof of the matters contained therein.

14. In support of the veracity of that document, the applicant also points to Annexure C to his affidavit sworn on 1 February 2011.  That purports to be a document of advice by an Attorney in Syria, Mr G, and certified by the President of the local Syrian Bar Association, Mr L.  It is said to be a request for advice on the validity of the document to which I have just referred.  That is the document that purports to be the marriage contract in respect of the alleged marriage by proxy in Syria in August 2007.  In my view, there is difficulty with the document at Annexure C in that it purports to be an opinion by an expert.  Ms Rutkowska went very carefully through that document and raised numerous objections, quite properly with respect in my view.  She said that the document was not properly verified.  It appears to be an extract of advice from a person who purports to be an expert, yet there is no evidence to qualify that expert and set out what the expertise of the person is.  There are no relevant documents attached to establish those matters.

15. The provisions of the relevant code of law are not attached, and so far as it refers to Syrian law, it appears to refer somewhat selectively to parts of the code.  It is submitted that in any event, the document cannot overcome the deficiencies that I have already referred to in the alleged contract itself.  Accordingly, in those circumstances, in my view Annexure C to the applicant’s affidavit sworn on 1 February 2011 does not take the matter any further. 

16. As indicated above, I have read the entirety of the material contained in the applicant’s affidavits.  There are numerous other documents included therein.  There is also what purports to be the English translation of a statement by the religious officer who married the parties Father Y.  Amongst other matters this person asserts that the respondent has a legal marriage with Mr K.  Yet on the face of the document this appears to be hearsay.  I give no weight to this material. 

17. There were also English translations of what the applicant suggested were love letters between Mr K and the respondent.  Those letters were quite properly objected to and I take no account of them. 

Conclusion

1. Section 23B(1) of the Marriage Act 1961 provides in effect that a marriage is void where either of the parties is, at the time of the marriage, lawfully married to some other person.

2. This is what the applicant asserts in the present case namely, that when he and the respondent married in September 2007 the respondent was lawfully married to Mr K. 

3. This Court must make its determination about this matter on the basis of the admissible evidence.  The applicant, being the person who is asking the Court to make orders in his favour, bears the onus of establishing in accordance with the appropriate standard of proof, that is on a balance of probabilities, that it is more probable than not that what is asserted by him is in fact the case. 

4. I am afraid that, in my view, the applicant has failed to establish that according to this standard the respondent was lawfully married to Mr K at the time she married the applicant in September 2007.  Accordingly, in my view, the appropriate course for the Court is to dismiss his application. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 8 February 2011.

Associate:     ___________________

Date:              29 March 2011