HAMWI & OMAR
[2012] FamCAFC 174
•1 November 2012
FAMILY COURT OF AUSTRALIA
| HAMWI & OMAR | [2012] FamCAFC 174 |
| FAMILY LAW – APPEAL – NULLITY OF MARRIAGE – no appealable error established. |
| Evidence Act 1995 (Cth), s 140 Family Law Act 1975 (Cth) Marriage Act 1961 (Cth), s 23B(1)(a) |
| APPELLANT: | Mr Hamwi |
| RESPONDENT: | Ms Omar |
| FILE NUMBER: | PAC | 3561 | of | 2009 |
| APPEAL NUMBER: | EA | 27 | of | 2011 |
| DATE DELIVERED: | 1 November 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, Ainslie-Wallace & Rees JJ |
| HEARING DATE: | 8 October 2012 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 8 February 2011 |
| LOWER COURT MNC: | [2011] FamCA 202 |
REPRESENTATION
| FOR THE APPELLANT: | Mr Hamwi in person |
| COUNSEL FOR THE RESPONDENT: | Mr Sperling |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid NSW |
Orders
The appeal be dismissed.
The amended application in an appeal filed by the appellant husband on 4 October 2012 be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hamwi & Omar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 27 of 2011
File Number: PAC 3561 of 2009
| Mr Hamwi |
Appellant
And
| Ms Omar |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Hamwi (“the husband”), by an Amended Notice of Appeal filed 17 May 2011, appeals against an order made by Johnston J on 8 February 2011 dismissing his application for a declaration of nullity in relation to his marriage to Ms Omar (“the wife”).
Both parties were born in Iraq. The husband migrated to Australia and, at the time of the marriage, he was an Australian Citizen. The wife migrated to Syria and the parties met in Syria.
It is not disputed that, in September 2007 in Syria, the husband and the wife were married in accordance with the rites of an Orthodox Church. At the time of the marriage, the husband was aged 39 years and the wife was aged 22 years.
The basis of the husband’s application before the trial Judge was his assertion that, at the time he and the wife entered into the marriage in September 2007, the wife was already married. He asserted that, in August 2007, the wife married Mr K at a Mosque in Syria.
In support of his case, the husband relied on a marriage certificate. The marriage certificate indicates that the wife was married by proxy, the proxy noted as Sheikh M, the Imam of the Mosque.
The wife denied this allegation and said that she had never met Mr K nor had she entered into a marriage by proxy.
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 relied on s 23B(1)(a). No other ground was invoked.
The Application for an Adjournment
At the commencement of the hearing of the appeal, the husband made an application for an adjournment. The primary reason he advanced was that he had commenced legal proceedings in Syria which, if successful, would result in the marriage to the wife being annulled, or the equivalent according to the law of Syria.
The remaining matters he agitated in relation to the adjournment are not relevant to a decision whether to adjourn the hearing of the appeal.
The application to adjourn the appeal was opposed by the wife.
The proceedings in Syria had been commenced over one year ago. The wife has not taken any step to participate in them. The husband was unable to say when those proceedings might be heard. He did not argue that he would be in any better position to conduct this appeal after the conclusion of those proceedings.
It seems that the proceedings in Syria concerned the same subject matter as the appeal; that is, the assertion that the marriage to the wife was not valid.
We formed the view that there was no utility in adjourning the appeal.
In the event that the appeal is unsuccessful, the husband is free to pursue his action before the Syrian courts which, he conceded, would have the effect he seeks. If the appeal is successful, there would be no need to continue his proceedings in Syria.
Importantly, the wife is entitled to finality of proceedings and to have the matter determined in this Court.
For those reasons, there is no prejudice to the husband in refusing the adjournment and his application was refused.
The Appeal
The husband filed an affidavit in support of his application for an adjournment. Parts of that affidavit raised what seemed to be two further grounds of appeal and we considered the two matters as further grounds in the appeal and have had regard to the parts of the affidavit and associated annexures appearing under the headings “Evidence”, “Forgery” and “Duress and forcing to get married” as submissions supporting the two further grounds.
We will consider these additional “grounds” first.
Forgery
The husband argued that the marriage certificate between him and the wife, which was in evidence before the trial Judge, was a forgery. In his affidavit sworn 21 September 2009, the husband says:
I married [Ms Omar] according to rites of… [an] Orthodox Church in the Syrian Arab Republic [in] September 2007… [Annexed] hereto and marked with the letter “A” is a copy of the Marriage Certificate translated into English.
The translated marriage certificate was annexed and relied upon by the husband.
At the trial, the wife also relied on the marriage certificate.
Before the trial Judge, the husband did not assert that the marriage certificate was forged and he, himself, relied upon the certificate to establish the fact of the marriage ceremony.
In any event, as is clear from the transcript, the husband conceded the fact of the marriage ceremony. The trial Judge asked the husband and the husband responded:
HIS HONOUR: ...you agree that you and [Ms Omar] were properly married – well, at least went through a form of marriage and a marriage certificate issued… [in] September 2007.
INTERPRETER APPLICANT: Only a church, your Honour.
HIS HONOUR: Yes, but you agree there was a marriage?
INTERPRETER APPLICANT: Yes, your Honour, a church.
HIS HONOUR: But what you are saying is that that’s not a lawful marriage because she was already married?
INTERPRETER APPLICANT: Yes, your Honour.
The hearing proceeded before his Honour on the basis that, while there had been a ceremony of marriage as between the husband and wife, the marriage was not valid because the wife was already married.
That this issue was not raised before the trial Judge means that the husband cannot now raise it on appeal. However, in any event, had it been asserted at the hearing that the certificate was forged; we do not see that it would have been relevant to his Honour’s decision.
Duress
The husband asserted at the hearing of the appeal that the wife entered into the marriage with him under duress; that she was forced to marry him. Again, this was not an argument that was advanced at the trial. The husband asserted before us that a number of named people could give evidence of the wife’s claim that she was forced to marry him. None of those people was called to give evidence at the trial and there was no evidence at the trial to support this assertion. The wife’s evidence was that the marriage with the husband was arranged, as was customary in her family, but she did not suggest that she had been an unwilling participant.
We see some difficulty in the husband asserting that the wife’s will was overborne but, in the end, nothing turns on this.
At trial, the husband’s case was that the marriage was invalid because the wife was already married. He did not assert any other basis for invalidity.
Had this matter been raised before his Honour, we are of the view that it would not have been material to his decision.
The grounds relied upon by the husband in the Amended Notice of Appeal are (errors as in original):
1. The trial judge failed to accord the Appelant procedural fairness and natural justice.
2. The trial judge erred in dismissing the hearing.
3. The trial judge erred in his judgement by not giving weight to any of the Appelant’s affidavits.
4.The trial judge erred in accepting into evidence overseas documents from the Respondent.
5. The interpreter at the Hearing was not able to adequately interpret for the Appelant and to the trial judge.
6. The Appellant understood wrongly from court directions that he was not allowed to examine the subpoenaed immigration file of the Respondent.
Ground 4 and 6 were not pressed in the appeal.
Ground 1 – The trial Judge failed to accord the husband procedural fairness and natural justice
The husband’s written submissions assert that a reading of the transcript shows that the husband did not understand what was being put to him in the hearing and that his Honour knew that the husband did not understand.
None of the matters to which the submissions refer supports the assertions under this ground.
The husband appeared in person at the trial with the assistance of an interpreter. It was clear that the trial Judge understood that the husband’s case was that his marriage to the wife was not a valid marriage because she was already married at the time of the ceremony.
The husband relied upon Affidavits sworn by him on 21 September 2009,
19 April 2010, 5 October 2010, 1 November 2010 and 5 November 2010.
The transcript demonstrates that husband was able to articulate his case and the facts on which he relied to support his assertion that the marriage was void.
The submissions in the appeal do not refer to any part of the transcript where the husband told his Honour that he had difficulty understanding what was being said.
The submissions further assert that “…it is clear that His Honour did not understand the pivotal statements made by the Chaldean interpreter… on behalf of the [husband]”.
In this regard, the submission refers to a part of the transcript where his Honour expressed some confusion over what exactly the husband was asserting. It was submitted that “This statement symbolises the proposition that His Honour failed to understand most of the statements made at the hearing by the [husband] through the interpreter”.
The submission seems to rest on the assumption that since the trial Judge rejected the husband’s arguments and dismissed the application, he must have not understood what was being put.
We reject that submission.
Nothing in the submissions nor in the transcript of the proceedings points to any matter where the trial Judge was unable to understand the basis of the husband’s case which was simple and clear nor to his Honour not understanding what the husband was saying.
The submissions further assert that his Honour rejected evidence of his own motion without there being an objection from the wife’s solicitor.
The evidence to which this submission refers was a statement apparently made by an Attorney with the United Nations Commission for Refugees which was attached to the husband’s affidavit. 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.
The submission raises a number of instances in which it was said that the husband was not afforded procedural fairness. There is no substance in any. It was asserted, for example that when the husband said that he wanted documents from his Syrian lawyer, the trial Judge “…failed to offer the [husband] an opportunity of seeking an adjournment…” It is clear from a reading of the transcript that the husband was able to make his case to his Honour. Had he wished an adjournment, he could have asked for one and, his Honour would have given it consideration.
It was for the husband to establish, to the satisfaction of the Court, that the wife was already married when they went through a ceremony of marriage in
September 2007. That was the critical issue of fact before the trial Judge and a reading of the transcript makes it clear that his Honour well understood that to be the case.
There is no substance to this ground.
Grounds 2 and 3 - The trial Judge erred in dismissing “the hearing” and by not giving weight to any of the husband’s affidavits
Ground 2 and Ground 3 may conveniently be considered together.
Each ground in effect challenges his Honour’s rejection of the husband’s evidence and the weight he gave to that which remained.
The trial Judge stated, correctly in our view, that it was for the husband to prove his case. It is implicit in his Honour’s reasons that this meant that the husband must prove his case by admissible evidence. His Honour rejected, as inadmissible, much of the evidence on which the husband sought to rely.
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.
The grant of a decree of nullity is not discretionary. If the facts establish that the marriage is invalid, then a decree must issue.
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.
During the hearing the wife’s legal representative took objections to much of the evidence relied on by the husband. His Honour considered each objection and ruled in relation to it.
The husband’s submissions refer particularly to the rejection of a statement by an Attorney with the United Nations High Commission for Refugees that was annexed to the husband’s affidavit sworn 19 April 2010. The statement by the Attorney is not sworn and contains an account of conversations with numerous third parties. Even had the statement been in the form of an affidavit, the contents are almost entirely hearsay and the trial Judge properly rejected it.
The husband also complains that a statement by the priest who officiated at the marriage ceremony between the husband and wife was rejected. The statement, which is annexed to the affidavit of the husband sworn 5 October 2010 was not sworn and in any event, contains statements which are hearsay in nature and opinions in relation to which there is no evidence to satisfy the Court that the maker of the statements has the requisite qualifications. The trial Judge properly rejected the statement.
The document upon which the husband relied to establish that the wife was previously married was annexure “B” to his affidavit sworn 21 September 2009. His Honour rejected the tender of the document. He said:
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.
We agree with the reasons of the trial Judge. The document was properly rejected.
We find no error in his Honour’s rejection of the evidence.
As to the complaint that the trial Judge failed to accord appropriate weight to such of the husband’s evidence that was not inadmissible, what weight or importance is given to evidence is a matter for the trial Judge. No appealable error has been demonstrated in this ground.
Ground 5 - The interpreter at the hearing was not able to adequately interpret for the husband and to the trial Judge
The submissions to support this ground are no more than inferences drawn by the author of the submission based on his reading of the transcript and what the author asserts to be the husband’s lack of understanding. There is nothing in the submissions, inadequate as they are, to indicate that any lack of understanding (which we do not accept) was due to a failure of the interpreter.
Nothing in the submissions demonstrates any such asserted inadequacy and we were not referred to any part of the transcript where the husband raised difficulties with his Honour. The husband does not point to any material finding of the trial Judge which is vitiated by the asserted failings of the interpreter. Neither does he point to any portion of the judgment which he asserts is inaccurate by reason of the asserted failings of the interpreter.
Nothing in the matters raised by the husband in the appeal establishes that there has been any error in the judgment and the appeal will be dismissed.
Costs
As is usual, and in an attempt to save further expense of making submissions after the delivery of reasons on appeal, we sought submissions from the parties on the question of the costs of the appeal.
At the conclusion of the hearing of the appeal, counsel for the wife indicated that no order for costs was sought in the event that the appeal was dismissed.
That is an appropriate concession and we will make no order as to costs.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Ainslie-Wallace & Rees JJ) delivered on 1 November 2012.
Associate:
Date: 1 November 2012
6
0
3