Hannan & Tamer - [2023] FedCFamC1F 840

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hannan & Tamer [2023] FedCFamC1F 840

File number: MLC 6348 of 2023

Judgment of: CARTER J

Date of judgment: 5 October 2023

Catchwords: FAMILY LAW – NULLITY – where applicant seeks to proceed on ex parte basis – where the applicant seeks a suppression order – where the applicant seeks dispensation of service – where a suppression order is not necessary to protect the safety of the applicant in circumstances where information regarding their presence in Australia is publicly available – where it would be a denial of procedural fairness if the application for a declaration that a marriage was void proceeded ex parte – where the applicant is to effect service on the respondent

Legislation:
Family Law Act 1975 (Cth) ss 102PD, 102PE, 102PF, 113

Marriage Act 1961 (Cth) ss 23B, 88D

Cases cited:
Fatisi & Hasila [2020] FamCA 209

In the marriage of Sieling, R.E. and Sieling, S.H. (1979) FLC 90-627

Division: Division 1 First Instance

Number of paragraphs: 52

Date of hearing: 18 August 2023

Place: Parramatta

Solicitor for the Applicant: Inner Melbourne Community Legal

Respondent: Litigant in person (did not participate)

ORDERS

MLC 6348 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MX HANNAN

Applicant

AND:
MR TAMER

Respondent

ORDER MADE BY:

CARTER J

DATE OF ORDER:

5 OCTOBER 2023

THE COURT ORDERS THAT:
1.Within 28 days, the applicant serve the respondent copies of the following documents:
(a)the Initiating Application filed 8 June 2023;
(b)affidavit filed 8 June 2023; and
(c)a copy of these orders.

2.All interim applications be dismissed.
3.The matter be listed for mention on 13 November 2023.

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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
INTRODUCTION

The applicant identifies as non-binary and uses the pronouns they/them.
The applicant seeks a declaration pursuant to s 88D(2)(d) of the Marriage Act 1961 (Cth) that the marriage between themselves and the respondent in mid-2020 “does not constitute a valid marriage and is void”.
Section 88D(2)(d) provides that a marriage shall not be recognised as valid in Australia if the consent of either of the parties was “not a real consent for a reason set out in subparagraph 23B(1)(d)(i), (ii) or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hannan & Tamer

Details

AGLC: Hannan & Tamer [2023] FedCFamC1F 840
Case: [2023] FedCFamC1F 840
Decision Date: 5 October 2023

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 1) heard an application by MX Hannan, the applicant, seeking a declaration of nullity of their marriage to MR Tamer, the respondent. The applicant claimed that their marriage was forced under duress and without their true consent due to threats of violence and religious persecution from their family. The applicant sought to proceed on an ex parte basis, requested a suppression order to prevent the disclosure of their identity, and asked for dispensation from serving the respondent with the application documents.

The court had to determine whether the application should proceed without notice to the respondent, whether a suppression order was necessary to protect the applicant’s safety, and whether service should be dispensed with. The court found that proceeding ex parte would be a denial of procedural fairness, as the respondent had a right to be heard before a declaration of nullity was made. The suppression order was also deemed unnecessary because information regarding the applicant's presence in Australia was already publicly available, and thus it would not protect their safety any further. Dispensation from service was refused, as the respondent had a right to be served with the application documents and given an opportunity to respond.

The court ordered that the applicant must serve the respondent with the initiating application, affidavit, and the court's orders within 28 days. All interim applications were dismissed, and the matter was listed for mention on 13 November 2023. The form of the order was subject to entry in the court's records, with the possibility of minor typographical or grammatical errors being reviewed or variations to the order being recorded.

Orders

Orders of the court

MLC 6348 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MX HANNAN

Applicant

AND:

MR TAMER

Respondent

ORDER MADE BY:

CARTER J

DATE OF ORDER:

5 OCTOBER 2023

THE COURT ORDERS THAT:

1. Within 28 days, the applicant serve the respondent copies of the following documents:

(a) the Initiating Application filed 8 June 2023;

(b) affidavit filed 8 June 2023; and

2. All interim applications be dismissed.

3. The matter be listed for mention on 13 November 2023.

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.

Background

Background to the litigation

Accordingly, the questions I must now answer are:(a)should this matter proceed on an ex parte basis?(b)is a suppression order necessary?; and(c)should I dispense with service?BACKGROUND In order to understand the applicant’s position, it is necessary to set out what they assert is the history of the parties’ relationship. The applicant was born in 1996 in Country B. They say their family holds a position of influence. Their father is an Imam, and the family is highly religious. The applicant said during their childhood they were repeatedly beaten by their father, as well as subjected to beatings and sexual assaults by their brothers. They formed a relationship with a woman in early 2019 through an online dating application. The woman – who lived in the United States – assisted the applicant to travel to the United States, helping them to obtain the necessary visas and flight bookings. The applicant remained in the United States with their girlfriend until 2020 when their family discovered their whereabouts. The applicant said threats were made to cause injury to their girlfriend and her children. In those circumstances, they felt they had not option but to return to Country B to prevent their family from harming their girlfriend or her children. The applicant said after returning to Country B, their passport was seized, and they were placed into detention, and forced to wear customary dress. They were then detained in a facility for a month without their consent, during which time they were subjected to therapy, and a physical examination. In early 2020 the applicant returned to the family home, where they were locked inside and subjected to “serious abuse” which was not particularised. They said they were so traumatised they experienced selective mutism. At about that time, the applicant’s family demanded that they marry. It is the applicant’s evidence that they were beaten by their father on the day the family received the marriage proposal when they said they did not want to marry the respondent. They said they were told that they “must” marry the respondent and they were not allowed to object to the marriage. The applicant said they were accompanied to the courthouse by their brothers to obtain the marriage licence. They said they did not consent to the marriage, but “had no choice but to sign the papers or [they] would be beaten or even killed” by their family. They said their father often referred to the penalty of apostasy – pursuant to which a Muslim person can leave Islam once, but if they do not return, should be killed as an apostate. The wedding ceremony took place in 2020. The applicant said their father whispered in their ear during the ceremony that he would kill the applicant if they tried to escape again. The applicant lived with the respondent after that. If the applicant’s evidence is accepted, it is likely the Court would form the view that the applicant acted under duress when the marriage ceremony occurred, and subjected to overbearing force such that they could not be said to have consented to the marriage.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number:	MLC 6348 of 2023
Judgment of:	CARTER J
Date of judgment:	5 October 2023
Catchwords:	FAMILY LAW – NULLITY – where applicant seeks to proceed on ex parte basis – where the applicant seeks a suppression order – where the applicant seeks dispensation of service – where a suppression order is not necessary to protect the safety of the applicant in circumstances where information regarding their presence in Australia is publicly available – where it would be a denial of procedural fairness if the application for a declaration that a marriage was void proceeded ex parte – where the applicant is to effect service on the respondent
Legislation:	Family Law Act 1975 (Cth) ss 102PD, 102PE, 102PF, 113 Marriage Act 1961 (Cth) ss 23B, 88D
Cases cited:	Fatisi & Hasila [2020] FamCA 209 In the marriage of Sieling, R.E. and Sieling, S.H. (1979) FLC 90-627
Division:	Division 1 First Instance
Number of paragraphs:	52
Date of hearing:	18 August 2023
Place:	Parramatta
Solicitor for the Applicant:	Inner Melbourne Community Legal
Respondent:	Litigant in person (did not participate)

MLC 6348 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MX HANNAN Applicant
AND:	MR TAMER Respondent

ORDER MADE BY:	CARTER J
DATE OF ORDER:	5 OCTOBER 2023