Hannan & Tamer
[2023] FedCFamC1F 840
•5 October 2023
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 (iii)”. Relevantly, s 23B(1)(d)(i) provides that a marriage is void where the consent is not real consent where it has been obtained by duress or fraud.
I note this Court has treated a marriage which is invalid by virtue of s 88D of the Marriage Act as a marriage which is void within the meaning of the Family Law Act 1975 (Cth); see Fatisi & Hasila [2020] FamCA 209, in which Gill J sets out earlier decisions dealing with this distinction.
This Court has the power to make declarations as to the validity of a marriage pursuant to s 113 of the Family Law Act. That section empowers the Court to make such declaration as is justified.
The applicant further sought that the application proceed ex parte and that the Court make a suppression order and non-publication order pursuant to s 102PE of the Family Law Act. They proposed the names of the parties and any detail from the Court file that identifies or tends to identify the parties be suppressed until 2043.
The applicant further proposed that service of the application and any orders of this Court on the respondent be dispensed with.
Accordingly, if I proceed as proposed by the applicant, the respondent would have no knowledge of the proceedings, no ability to participate in the proceedings and no notice as to any change to his marital status if I made the declaration as sought.
The applicant said this unusual course was necessary to protect their life and safety.
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.
After the wedding, the applicant said they were subjected to physical beatings and rapes by the respondent. They said they were also locked inside the house whenever the respondent went out.
In mid-2020 the applicant was able to escape the house and fled to Country C and then on to Country D. In about mid-2020, the applicant’s family filed an Interpol Yellow Notice, claiming the applicant was a missing person. In around late 2020, the applicant’s family filed a missing person’s report to the Country D police stating that the applicant was suffering from mental illness and psychiatric issues.
The applicant travelled from Country D to Country E in late 2020. When they were in transit, they were stopped by the police and advised about the Interpol report.
The applicant remained in Country E for a year. They said towards the end of 2021 with the assistance of an international organisation they were able to obtain an Australian humanitarian visa.
In late 2021 the applicant attempted to leave Country E for Australia. They were detained at the airport for five days, and informed that their family had issued an Interpol Red Notice. That is a notice that requests law enforcement globally to locate and provisionally arrest a person, usually on the basis that they are facing legal action in the country seeking that person’s return. It was apparently being asserted that the applicant had stolen from their family, and had been convicted of theft in their absence. Attempts were made to seek the applicant be repatriated to Country B, which the applicant resisted.
Following the intervention of international organisations, the applicant was ultimately able to leave Country E and travel to Australia. The flight deliberately did not stop in any other country.
The applicant has remained in Australia since that time.
The applicant said they received a message in May 2022 on Twitter which said “we’re in, coming for u bitch”. They believe that was from one of their brothers. Also in May 2022 one of the applicant’s brothers put in his Twitter feed “we’re coming” and sent a message to the applicant that read “Sydney, what a wonderful city”. The applicant further deposed that they have received a message from another Country B person via Twitter advising that the applicant’s brother is already in Australia looking for them.
The Initiating Application was filed on 8 June 2023.
WHEN WILL THE COURT ALLOW PROCEEDINGS TO PROCEED EX PARTE?
It is a significant step to allow a matter to proceed ex parte. The power to hear an application without the other party having been served should be used with great caution and only in circumstances where it is absolutely necessary to act immediately. It will be in rare and limited circumstances where the Court will permit a matter to proceed in the absence of one party.
Generally, ex parte orders are made only in interlocutory proceedings, with the respondent given an opportunity to provide their response at the earliest opportunity. The Court is required to balance the likelihood of harm to the applicant against hardship to the respondent that arises from an order being made without hearing from him. In the early case of In the marriage of Sieling, R.E. and Sieling, S.H. (1979) FLC 90-627 at 78,254 the Full Court said:
The more drastic the order the more grave must be the risk to be averted and the more important the requirement that the respondent be heard at the earliest opportunity.
WHEN IS IT APPROPRIATE TO MAKE A SUPPRESSION ORDER?
The applicant sought an order be made that would prohibit the publication of any information that could identify the parties to these proceedings. That would mean, for instance, that at any further listing of the hearing, the parties’ names would not appear in the Court list and there would be no publicly accessible information about these proceedings at all.
Section 102PF of the Family Law Act sets out the grounds for making an order under this part. Relevantly, the grounds include that the order is necessary “to protect the safety of any person”; s 102PF (1)(c).
In considering whether or not to make a suppression order, I must take into account “that a primary objective of the administration of justice is to safeguard the public interest in open justice”; s 102PD.
I also note that the question for me is not whether it is reasonable or convenient to make a suppression order. I must be satisfied that it is necessary to make such an order to protect the applicant’s safety. It is not a balancing exercise.
DETERMINATION
In all the circumstances, whilst I have concerns for the applicant’s wellbeing, I cannot be satisfied either:
(a)that a general suppression order is necessary to protect the applicant’s safety; or
(b)that the application should proceed ex parte.
I am also satisfied that efforts should accordingly be made to bring these proceedings to the attention of the respondent.
Why is a suppression order not necessary?
I understood from the submissions made on behalf of the applicant that their whereabouts is highly confidential and that in order to protect their safety requests their whereabouts must remain unknown.
I note the applicant has attached two media releases from an international organisation dated late 2021. The applicant is not named, but the history outlined in those press releases, and the description of the applicant’s family would make it very likely the applicant’s family would recognise the person referred to as “[…]” (being the applicant’s initials) in the releases to be the applicant. The press releases make it plain that “[…]” is now in Australia.
Moreover, the news article dated early 2022 does name the applicant. Further, if you type the applicant’s name into Google, that news article – naming them, explaining that they are now in Australia, confirming that they are a member of the LGBTQ+ community and outlining the applicant’s unhappy history – immediately comes up. There is also a News article readily available that names the applicant, sets out that they identify as lesbian and non-binary, and that they are living in Australia. There are multiple additional articles naming the applicant and outlining their story.
Accordingly, it does not seem to me that the applicant’s whereabouts (that they are in Australia) is highly confidential, or that their family are not aware that they are now residing in Australia. They also likely know the applicant identifies as non-binary, LGBT, and an ex-Muslim person.
Obviously, the applicant’s actual address should not be provided to any other person, so that their actual location remains hidden. I understand that the applicant’s physical address is not on any documents in the Court file. Further, any additional hearings can be conducted via Microsoft Teams – so that the parties do not come into contact with each other, thereby providing the applicant with additional protection.
However, the assertion that a general suppression order is necessary to conceal the applicant’s whereabouts (somewhere in Australia) just cannot be made out.
If it is the applicant’s case that if the respondent and/or the applicant’s family become aware of this application, their life is at risk, there was nothing in the applicant’s submissions that indicated that the nature of the particular application brought would be putting the applicant at any greater risk. I accept the applicant has outlined a horrific history. I further accept that their family may make efforts to seek them out and that this could put the applicant at risk. I understood from the submissions made on behalf of the applicant that they say the risk of honour killings cannot be discounted. However, that risk exists separately and independently to this application being heard and determined.
Why should the matter not proceed ex parte?
The applicant sought final relief – being a declaration that the marriage was invalid and void – be granted on an ex parte basis. If I agreed to that application, the respondent would not know of the declaration sought by the applicant, or the basis for it. He would never be given an opportunity to be heard in relation to the application.
Moreover, if I granted the relief sought, that would alter the marital status of the respondent in circumstances where he had not been put on notice, or been heard. If service was also dispensed with, the respondent would not even know his marital status had been altered after the fact. He would never know the outcome of the proceedings, or that they had ever been brought.
As already observed, the applicant wants the marriage declared invalid, on the basis they say they never consented to the marriage, and were forced to enter the marriage after enduring significant physical and emotional abuse from their family. The allegations made by the applicant are extremely significant, and as indicated, if the matter proceeded ex parte, the respondent would be unable to adduce evidence to the contrary. Rather, he would be deprived of the opportunity to present his own evidence as to the circumstances surrounding the marriage.
Moreover, if the declaration is ultimately made, the respondent’s marital status – at least under Australian law – would be altered without him having any opportunity to participate in these proceedings, to make submissions or present evidence. That would, in my view, amount to a serious denial of procedural fairness.
In circumstances where the applicant’s family and the respondent likely already know they are in Australia – as well as the applicant’s sexuality and gender orientation, and their allegations against their family in terms of abuse – there seems no reason to me that the matter should proceed without the respondent being given notice of the proceedings. I accept that the media coverage does not assert the applicant was forced into a marriage – but many of the other allegations made by the applicant in their affidavit in these proceedings are already effectively on the public record, and readily available online.
Service on the respondent
Whilst the applicant said they currently do not have an address for the respondent, it was acknowledged it could not be said they would be unable to effect service, for instance, through a family member. That is, the applicant conceded they most likely could bring the proceedings to the attention of the respondent through some means. For obvious reasons, no attempts have been made to serve the respondent at this time.
If the matter is to proceed, I am of the view that efforts need to be made to serve the respondent and bring these proceedings to his attention. Of course, should he decline to participate after having had the opportunity to do so, it may be that the matter does proceed in his absence.
I am most concerned the applicant will feel aggrieved by my determination. I am concerned they will feel extremely stressed, and at risk. I have carefully read their affidavit, and given considerable thought to the competing considerations. However, for the reasons outlined, it does not seem to me that the Court can determine the matter in the manner proposed by the applicant.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 5 October 2023