Innes & Tranz

[2007] FamCA 1649

FAMILY COURT OF AUSTRALIA

INNES & TRANZ [2007] FamCA 1649

FAMILY LAW – NULLITY – Whether consent obtained by duress

Family Law Act 1975 (Cth)
Marriage Act 1961 (Cth) - s 23B(1)(d)

APPLICANT: Mr Innes

RESPONDENT: Ms Tranz

FILE NUMBER: SYC 2576 of 2007

DATE DELIVERED: 18 July 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston JR

HEARING DATE: 18 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: Counsel directly instructed

SOLICITOR FOR THE RESPONDENT: Mr Papas

Orders

1. That the application for a decree of nullity contained in the Application for Final Orders filed on 12 April 2007 is dismissed.

2. That the applicant pay to the respondent’s solicitors within 42 days the sum of $500 being the Court’s assessment of the respondent’s appropriate costs in these proceedings.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2576 of 2007

MR INNES  

Applicant

And

MS TRANZ  

Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr Innes to whom for convenience I shall refer as “the applicant”.  The applicant seeks orders to the effect that the Court declare the marriage between the applicant and Ms Tranz to whom for convenience I shall refer as “the respondent” to be null and void. 

2. The parties married in a civil ceremony at the registry of Births Deaths and Marriages, Sydney on … May 2006. The applicant said that his consent to the marriage was not a real consent because it was obtained by duress and that in those circumstances, he has been able to establish the ground for the making of a decree of nullity pursuant to s 23B(1)(d) of the Marriage Act 1961.

3. The background matters are as follows.  The parties met in December 2004.  The respondent had come to Australia from Bangladesh to study accounting which she subsequently discontinued.  In approximately September 2005 the respondent informed the applicant that her family was expecting her to return to Bangladesh within a short time to enter into a marriage arranged by her parents with a person whom apparently she did not wish to marry. 

4. The parties subsequently discussed getting married. 

5. In February 2006 the applicant informed the respondent that he did not wish to marry her unless she obtained permanent resident status in Australia.  This communication by the applicant to the respondent apparently followed a period in which he had discussed his interest in getting married to the respondent with his parents.  I accept that his parents were rather cautious about this matter and they had some concerns.  These were firstly that their son had only known the respondent for quite a short period.  They were also somewhat suspicious of the respondent’s motives in the sense that they had become aware of cases where persons from overseas had come to study in Australia and then sought to marry Australian citizens so as to promote their prospects of being able to achieve permanent resident status in Australia. 

6. So the applicant had discussions with his parents and following those discussions he had given his parents an undertaking that he would not marry the respondent until such time as she obtained permanent resident status in Australia.  The parties then regarded themselves as being in a state of being engaged in anticipation of marriage.  But from the applicant's point of view that was not going to occur until such time as permanent residence status had been obtained by the respondent. 

7. It is common ground that within a matter of weeks, the respondent informed the applicant that she was under intense pressure from her mother to return to Bangladesh for the arranged marriage.  There were further discussions between the parties over the next few months about that matter.  The applicant said that the respondent was starting to become distressed and fearful about her situation.  He said that she pleaded with him to marry her to save her from having to return to Bangladesh.  

8. The applicant said that he began to feel concerned about her mental balance.  He said that he found himself in a situation where as each day proceeded he began to increasingly fear for the mental balance of the respondent, a person for whom he cared.  He said that with the respondent's psychological state clearly deteriorating before his eyes as the days passed with her obvious fear and distress at panic level he felt he had no choice as a friend and as a human being than to try and save her from a forced marriage in Bangladesh.  Consequently he felt compelled to put his own feelings aside as well as the undertakings that he had given to his parents.  He said in spite of all of that and that he felt what he described as insufficient romantic compulsion to marry and, in fact, was not financially ready to marry the respondent, he nevertheless entered into a civil marriage with her to save her from having to return to Bangladesh and to a forced marriage. 

9. The applicant also said that the respondent told him not to tell his parents about what they had decided.  The applicant's parents were not informed about the marriage, until December 2006 when the parties broke up which was then many months after they had married.

10. It seems to me that there are a number of problems with the application.  Firstly, obviously the onus is on the applicant to present material to the Court upon which the Court is able to make a finding of duress.  It was submitted that the dictionary definition of duress is compulsion, fear to adopt a course of action.  If a party enters into a marriage through duress that marriage is voidable, so it is submitted on the applicant's behalf that what the applicant needs to establish is a compulsion by fear to adopt a course of action. 

11. I refer to various authorities reported in CCH Australian Family Law and Practice Volume 1 from pages 11,253, 11,254 and 11,255.  There are various references there to what would constitute fear and threats by, for example, the bride's father threatening to return the bride to a country she did not wish to return to.  Threat of immediate danger to life, limb and liberty, threat of prosecution and imprisonment, threat of prosecution for carnal knowledge, murder threat by father, even parental coercion. 

12. But what troubles me about the assertions by the applicant that he acted out of fear is that it contrasts with what is put in the material by the respondent.  Neither party indicated that they wished to cross‑examine the other and I did not find it necessary to call the respondent.  But she certainly disputes that the applicant did not consent to the marriage and she puts in her material quite a different account from that which he puts. 

13. There are two matters which one should look at in terms of what objective relevant evidence there is in the matter.  The first is a statement on oath by a person Mr S who says that he met the applicant in early 2006 before the parties were married.  He was introduced to the applicant by the respondent who introduced him as “her boyfriend”.  Mr S says that he observed the parties together and that they were affectionate in a private setting.  After a few months the applicant informed him that they had decided to be married.  Mr S says that he spoke to the applicant a few times before and after the marriage discussing his decision to marry and that the applicant had said about the respondent: 

    I love her and it's just right that we should be married.

14. And Mr S says he was invited to the registry where the parties were married and, in fact, he was a witness at their wedding.  There is nothing there which I would construe as some sort of corroboration of duress. 

15. Also the other item of objective evidence is what is described as a Statement by Nominator which is a statement which the applicant prepared to support the respondent's application for some immigration purposes.  I quote from a couple of paragraphs of this, firstly the last paragraph on the first page, and this was written shortly after the parties married, that is it was dated by the applicant 22 June 2006 and it is as follows:

    Immediately from our first phone conversations and when we started seeing each other my feelings for [the respondent] started to grow so strongly more and more until I knew before long without any doubt that I loved her more than I had loved anyone ever before.  Every time I expressed these feelings to her she reciprocated and the very first time I told her I loved her I knew that she was expecting I would say it and she certainly was not surprised at all and I knew that she was very happy.  She told me that she had never met anyone like me before and I can honestly say that I have never met another girl who loves me more and who I feel is so suited to me and is so sensitive that I am well and truly blessed.

16. And then without going through all of the detailed paragraphs the last paragraph on the second page of the statement in which the applicant says: 

    At the registry we set the wedding date for May the […] and when that day came it was for both of us, we agreed, the happiest day of our lives.  We had our few closest friends attend our witnesses were [Ms K] and [Mr S] and our other friends […] and […].  We went out after the ceremony and had a very enjoyable time with a good meal and drink and lot of conversation which went on for a very long time.

17. In my view that is not the language of somebody who out of fear went through a ceremony of marriage, not the behaviour and language of somebody who, in my view, is able to meet with the threshold requirement of duress for the purposes of the relevant provision of the Marriage Act1961.  Unfortunately, in my view, the application cannot succeed. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the Reasons for Judgment of Judicial Registrar W P Johnston.

Associate: 

Date: 21 February 2008