IQBAL & KADIR

[2017] FamCA 315

FAMILY COURT OF AUSTRALIA

IQBAL & KADIR [2017] FamCA 315

FAMILY LAW – PRACTICE AND PROCEDURE – Service

FAMILY LAW – NULLITY  – Whether consent obtained by fraud – Application dismissed.

Family Law Act 1975 (Cth)
Marriage Act 1961 (Cth)

Osman & Mourrali (1990) FLC 92-111

APPLICANT: Mr Iqbal

RESPONDENT: Ms Kadir

FILE NUMBER: BRC 11164 of 2016

DATE DELIVERED: 8 May 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 8 May 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Nugyen, Essen Lawyers Pty Ltd

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. Pursuant to Rule 7.18 of the Family Law Rules 2004 (Cth) the requirement to serve the Respondent with the Initiating Application filed on 7 November 2016 and any Affidavits filed in support of that Application is dispensed with.

AND IT IS FURTHER ORDERED THAT

1. The Initiating Application filed on 7 November 2016 is dismissed.

2. All outstanding applications are otherwise dismissed and removed from the list of cases requiring determination.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Iqbal & Kadir has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11164 of 2016

Mr Iqbal

Applicant

And

Ms Kadir

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Application to proceed Ex Parte

1. The evidence establishes that, in early to mid-December 2016, a Ms B (an advocate and practicing lawyer in Country C) made contact with, and/or attempted to make contact with the Respondent and her father, and attempted to provided them with a copy of the Initiating Application and the supporting material that had been filed at that point in time and that they were aware of the existence of the proceedings in Australia.  Further, in compliance with Senior Registrar Spink’s Order of 7 March 2017, further notice has been given to the Respondent, by virtue of the fact that the Applicant has forwarded a copy of the Court’s order made in March of this year to her.  That Order clearly provided that, if the Respondent did not appear or cause anyone to appear on her behalf today, the Applicant would likely seek to proceed today in her absence.

2. Consequently, I am satisfied that she has notice, first of the proceedings themselves and, secondly, of the fact that, if she failed to do anything about them, the Applicant would likely seek to proceed to ask the Court to determine the Application in her absence.  I am therefore satisfied that she has been afforded the appropriate opportunity to be heard and I am satisfied that it is appropriate to proceed to hear and determine the Application in the absence of the Respondent.

Application for Nullity of Marriage

1. By Initiating Application filed 7 November 2016, the Applicant seeks an order that the “purported marriage celebrated in late 2016 between the parties is and has been null and void”. 

2. There was an Application in a Case (filed on 15 December 2016 on behalf of the Applicant) by which an order dispensing unconditionally with the requirement to effect special service of the Initiating Application on the Respondent was sought.  An affidavit has been filed by the Applicant’s solicitor which outlined the attempts that have been taken on behalf of the Applicant to ensure that the Respondent was made aware of the existence of the Application. 

3. For the reasons I have already expressed in determining the Application to proceed to hear and determine the Initiating Application in the absence of the Respondent, I accept that she has been afforded an appropriate opportunity to appear, either in person or by legal representation, in relation to it. 

4. There was an order made by Senior Registrar Spink on 7 March 2017, by which the Initiating Application was listed for hearing to today.  The order provided clearly in its terms that, if the Respondent did not appear today, the Applicant had leave to seek to proceed today on what was termed “an undefended basis”.  The Senior Registrar also ordered that the Applicant serve a copy of the order made that day on the Respondent within 14 days, by sending it by ordinary pre-paid post to her last known mailing address, and that an affidavit outlining compliance with the order be filed and served by 4.00 pm on 28 April 2017.  It is clear that the Applicant has complied with the requirements to attempt to bring the existence of the Initiating Application and its hearing date today to the attention of the Respondent.  Again, as I have already said, I am persuaded that she has been afforded the opportunity to be heard in relation to the Application. 

5. In addition to those matters I have already discussed, reference to the Statutory Declaration given or declared by the Respondent on 29 October 2016 (which may be found as Annexure “D” to the affidavit of Mr Nguyen filed 15 December 2016) makes the Respondent’s position clear. 

6. So that there can be no doubt that this position has not been considered, the terms of the Statutory Declaration given by her on that date are as follows:

   I, [Ms Kadir], who got married with [Mr Iqbal] on the day of … 2016 in [D Religious Centre] in Queensland, want to get rid of this marriage as soon as possible. 

   I want to declare that I want to cancel this marriage, which was supervised under [Mr E].

7. So, it is clear that there is no opposition to the Applicant’s attempts to – to use the Respondent’s term – “get rid of” or “cancel” the marriage that was solemnised between them in 2016.

8. This Court’s jurisdiction to hear and determine the Initiating Application is established because, on the date on which the Initiating Application was filed (namely 7 November 2016), the Applicant was present in Australia.[1] 

   [1]See the definition of “matrimonial cause” in s 4(a)(ii) of the Family Law Act 1975 (Cth) and sections 39(4) and 39(4A) of the Family Law Act 1975 (Cth).

9. Section 51 of the Family Law Act 1975 (Cth) provides that an application under this Act for a decree of nullity of marriage shall be based on the ground that the marriage is void.

10. For the purpose of this Application, s 23B of the Marriage Act 1961 (Cth) prescribes those grounds on which marriages are void. It seems to me that three of the matters prescribed by that section are asserted to be relevant to the determination of the Application and, on the Applicant’s case, to have been established. Those matters may be summarised as follows:

    a)by reason of s 48 (which may be summarised as being a failure to solemnise in accordance with the provisions of the Division), the marriage is not a valid marriage;  and/or

    b)the consent of either party is not a real consent because it was obtained by duress or fraud;  and/or

    c)that the Applicant was mistaken as to the nature of the ceremony performed.

11. As the Applicant, the onus is upon Mr Iqbal to establish, on the balance of probabilities, that the marriage solemnised in 2016 is void pursuant to these grounds. 

12. I have already outlined, during the course of discourse with the Applicant’s legal representative, the material to which I have referred in considering the Application.  In addition, I have before me the contents of documents which have been marked Exhibit 1.  These are the official Certificate of Marriage, which establishes that Mr E certified that he duly solemnised the marriage, in accordance with the provisions of the Marriage Act 1961 (Cth), between the parties in 2016. The contents of the Notice of Intended Marriage make it clear that the celebrant received the notice of intention to marry a month before in 2016, and, as is appropriately accepted by the Applicant’s solicitor, the assertion that insufficient notice had been given (as required by the relevant section of the Marriage Act 1961 (Cth)) is no longer capable of being made out. It is clear that notice, and appropriate notice, was given.

13. I have also before me (as part of Exhibit 1) the Declaration of No Legal Impediment to marriage, signed by each of the parties and as declared as being accurate by Mr E, the marriage celebrant, in 2016.  I have also the affidavit of the Applicant filed 7 November 2016. 

14. What I do not have is any expert evidence in relation to the relevant aspects of religion, rites, obligations and necessary prerequisites vis-à-vis a marriage ceremony.  The only “evidence” that I have about such issues comes from the Applicant.  Given that, it is not, in my view, expert evidence of any sort.  There is, in my view, an absence of evidence in relation to those matters which, by religion, need to be performed or established in relation to a marriage ceremony. 

15. It is clear that the contents of the certificate of marriage are admissible to establish the facts stated in it: see s 102 of the Family Law Act 1975 (Cth), which provides, in summary, that, in proceedings under the Family Law Act 1975 (Cth), the Court may receive as evidence of the facts stated in a document purporting to be either an original or a certified copy of a certificate of marriage alleged to have taken place in Australia or elsewhere.

16. In addition, s 45(3) of the Marriage Act 1961 (Cth) provides that, where a marriage has been solemnised by or in the presence of an authorised celebrant, a Certificate of Marriage prepared and signed in accordance with s 50 of the Act is conclusive evidence that the marriage was solemnised in accordance with the section. However, s 45(4) provides that nothing in subsection (3) makes the Certificate conclusive where the fact that the marriage ceremony took place is in issue, as to that fact.

17. Here, it is in issue, but, as I have already said, there is no expert evidence before me in relation to the underlying aspects of the prerequisites of marriage performed according to religious faith. 

18. It is trite to record that where, as here, the fact of a marriage taking place is in issue, the evidentiary burden is cast upon the Applicant seeking to establish, via admissible evidence, that that is not the case. 

19. It seems to me that, in the absence of admissible evidence, the matters stated within the Certificate of Marriage, whilst not conclusive because of the operation of s 45(4) of the Marriage Act 1961 (Cth), remain highly persuasive.

20. This is made even more so, in my view, when reference is had to the contents of the Respondent’s Statutory Declaration, relied on by the Applicant, to which I have already referred. 

21. It is clear, in my view, from a reference to that document that the Respondent considered that she and the Applicant had, in fact, married in 2016 – given that she deposes in the Statutory Declaration that she wants to “get rid of” this “marriage” and that she wants to “cancel” the same.  What she does not say (nor is there any evidence before me from her to say) is that she did not get married or that she considers she did not get married or that she did not consider herself to be married.  In fact, her position, as I have already outlined, is very much that she wants to “get rid of” or “cancel” an existing marriage. 

22. As I have already noted, there is no expert evidence before the Court in relation to the prerequisites under religious faith for parties to be validly married.  I take into account as I have already said, the contents of the official Certificate of Marriage and the certification by the celebrant that the marriage in 2016 was duly solemnised in accordance with the provisions of the Marriage Act 1961 (Cth).

23. Neither of the parties is in any way uneducated.  The Applicant is a health practitioner, as is the Respondent.  Neither party is of tender years:  the Applicant is 45 years of age and the Respondent 28 years of age.  Both, it seems on the evidence, and taking into account the contents of the submissions before me, are currently in Country C, their home country.  They are nationals of that country.  And both, of course, are of the predominant religious faith of that country. 

24. The evidence before me seems to me to establish that the parties met in 2012 in Country C.  After that, the Applicant returned to Australia to complete (or, at least, continue with) studies towards his PhD.  He returned to Country C in January 2016, after finalising certain PhD-related activities.  He returned to that country again in May 2016. 

25. On the evidence before me, it seems that he met the Respondent at a coffee shop in Country C at that time, subsequently met her parents and members of her extended maternal family and that, during these meetings, there were discussions in relation to wedding plans.  His evidence is that the Respondent’s parents gave their consent to the marriage, although he says that was subject to certain conditions.  His evidence is that the parties became engaged in mid 2016.

26. It seems that the parties fixed the end of 2016 at the Respondent’s house as being the date and place for various legal and religious ceremonies.  It seems they also fixed the end of 2016 for reception dates.  The Applicant’s evidence is that dowry was set by the Respondent’s father. 

27. Subsequent to this, the Respondent returned to Australia on 10 August 2016 for study and/or examination purposes.  The Applicant then returned to Australia on 30 September 2016.  The parties subsequently met and spent some time together in early October 2016. 

28. On 5 October 2016, the Applicant travelled to Brisbane.  On 7 October 2016, he lodged a permanent resident visa application and was granted a bridging visa.  He says that he entered the Respondent’s details as his fiancée in that documentation.  On the Applicant’s own evidence, when he told the Respondent of these actions, she was thrilled.  She asked him if they could marry in Australia so she could stay in Australia by getting a bridging visa, which would have enabled her to do a certain examination. 

29. This evidence given by the Applicant seems to me to establish clearly that he knew that the idea that the parties would marry in Australia was, at least in part, to assist the Respondent in her attempts to obtain the necessary visa to permit her to stay in Australia. 

30. It seems that a further part of their conversation involved the Respondent informing the Applicant that she would obtain her family’s consent for them to marry in Australia. 

31. The parties subsequently located a religious marriage celebrant in Brisbane and, after the Respondent travelled with her mother from Sydney to Brisbane, the ceremony was performed here in late 2016. 

32. The Applicant’s evidence is also to the effect that, in late 2016, the parties engaged in a celebration, which appears (from his description) to be a celebration during which they held themselves out to members of the public and their friends as married.  They also held a second reception, later in the same month.  Again it seems that they held themselves out to members of the public as having completed a marriage ceremony. 

33. Whilst it is impossible to be completely clear on the evidence before me, it seems more likely than not that the celebration and the reception to which I have just referred mirrored those two reception events, the dates for which had previously been fixed by the parties in late 2016.

34. The Applicant’s evidence is that, during the week after the marriage, the parties had discussions about submitting documents to a migration agent.  He says that, once the Respondent learned it was not a certainty that she would obtain a bridging visa, she told him that she had not ever wanted a marital or sexual relationship with him, had married him because she thought he was eligible for permanent residency in Australia and did not want to be with him. 

35. Despite these conversations, it seems that the parties stayed together overnight at a certain motel, although the Respondent’s evidence is that their marriage was never consummated.  That, of course, is not a necessary prerequisite, as a matter of law, in relation to the validity or otherwise of a marriage. 

36. It seems that, a few days later, the Respondent left Brisbane and returned to Sydney. 

37. Whilst it is unclear as to when the asserted conversation or conversations took place, the Applicant’s evidence is that the Respondent also told him a number of things in addition to that which I have already recounted.  These included that both she and her parents agreed to the marriage on the basis that they thought he was eligible to get a permanent residency visa to live in Australia;  that her father was not happy for them to get married in Australia;  and that she had never loved him, nor would she love him into the future. 

38. It is against this factual background, then, that the Application for relief (as particularised in the Initiating Application) falls to be considered. 

39. The Respondent’s submissions are to the effect that the Court should be persuaded to make orders in terms of the relief sought because it would be persuaded that the Respondent “forced” him into the marriage;  that she agreed to the marriage just for immigration purposes and did not give her real consent to the same;  that he was conned into the marriage and was a victim of her actions and/or defrauded in some way as a consequence of them. 

40. The only evidence before me in relation to the ceremony itself is that which is contained at paragraph 38 of the Applicant’s affidavit.  It is to this effect:  that the marriage ceremony conducted in 2016 was conducted by an religious official who is a marriage celebrant also or too;  that the religious official acted on the understanding that all requirements for the marriage had been fulfilled by the parties;  that no vows were exchanged;  that the parties did not exchange any expression of intention to marry one another;  and that four weeks’ prior notification was not given to the religious official. 

41. The last assertion of sworn evidence is, in fact, contradicted by the contents of the documents which form part of Exhibit 1 (namely, the full copy of the Notice of Intended Marriage) which makes it clear, when reference is had to page four of four of the same, that the celebrant (to use the term referred to in that document) received notice a month before and he solemnised the marriage in late 2016.

42. To the extent that the contents of the written submissions filed on the Applicant’s behalf on 27 April 2017 refer to any other matters, those matters are not supported by evidence.  As has been appropriately conceded by the Applicant’s legal representative, it is not appropriate and, in fact, I would err, if I had regard to them. 

43. To the extent that any matters contained within the written submissions are not supported by evidence, I do not pay any regard to them.  So that it is clear, I consider that the following paragraphs of the submissions are not supported by the evidence:  the second sentence in paragraph 18 (to the extent that it refers to the conclusion that “the customary rites required by [religious] law were not performed and was confined to” – of course, there is evidence before me that the Certificate was signed, and I have the Applicant’s evidence in relation to the absence of vows etcetera, to which I have already referred);  paragraph 28 insofar as it refers to the ceremony not taking place according to religious traditions;  paragraph 30, which at best, in my view, is the Applicant’s evidence that the Respondent told him after the ceremony that this was the case (there is no evidence before me in relation to the issue of dowry);  paragraph 31 in its entirety, because in my view there is no evidence to substantiate this assertion;  paragraph 35;  paragraph 41, insofar as it is asserted that the ceremony which was carried out and/or performed in late 2016 was “not conducted according to [religious] law” – again, has no evidentiary basis;  the assertions contained in paragraph 41 to the effect that the marriage took place without the consent of the Respondent’s father and that she did not participate in any marriage rituals at the ceremonies are, in my view, unsupported by evidence going to the relevant time: namely, when the ceremony was performed.

1. These matters are particularly relevant, of course, because s 45(1) of the Marriage Act 1961 (Cth) is in these terms: where a marriage is solemnised by or in the presence of an authorised celebrant, being a minister of religion, it may be solemnised according to any form and ceremony recognised as sufficient for the purpose by the religious body or organisation of which he or she is a minister.

2. It seems to me that the Applicant’s evidence is that the celebrant was a religious official who was also a marriage celebrant and, therefore, it seems more likely than not that s 45(1) of the Act is the applicable section. The state of the evidence makes it difficult to conclude whether this is the case or not, but for that reason, (namely the Applicant’s own evidence) it seems, perhaps, to be more likely than not.

3. The evidence given by the Applicant in relation to the expression of comments etcetera seems to be intended to touch upon or go to the requirements contained in s 45(2) of the Marriage Act 1961 (Cth). But again, the absence of evidence makes it difficult for me to be persuaded that that is the appropriate section to which regard should be had.

4. I do not accept, on the evidence before me, the submission that the Applicant was “forced” into the marriage with the Respondent that was solemnised on in late 2016. 

5. Further, the contents of the Statutory Declaration given by the Respondent (and relied upon by the Applicant) are not, in my view, consistent with any concept that the Respondent thought that the ceremony the parties participated in late 2016 was anything but a marriage ceremony.  Again, I reiterate, her evidence, as contained in the Statutory Declaration, is that she wants to “get rid of” the marriage and/or “cancel” it.  It is not to the effect that she is not in a marriage or that she participated in a ceremony that she did not understand to constitute a marriage or that she was not a party to a marriage ceremony. 

6. I do not accept the Applicant’s submissions to the effect that the consent given by the parties at the time they participated in the ceremony performed by Mr E in late 2016, was not real or that it was fraudulent. 

7. In particular, I take into account and express my agreement with the comments made in Osman & Mourrali (1990) FLC 92-111 at page 77,743, where the Court said:

   But if a person wishes to go through a ceremony of marriage with a person whose identity he or she is aware of, then it matters not that the consent is induced by promises of eternal happiness, luxurious living, or even the promise to live together forever after.

8. To that list of induced promises, one could add “even if it were promised that one might have a better prospect of obtaining a certain, desired immigration status in a particular country”. 

9. I am not persuaded, on the evidence, that the Applicant or the Respondent were mistaken as to the nature of the ceremony in which they participated.  This distinguishes this particular case from a number of the authorities referred to and relied upon by the Applicant wherein the Courts accepted, on occasion, that parties participated in certain ceremonies thinking, or on the basis, that those ceremonies were, what I will term, prerequisites or precursors to a marriage ceremony.

10. Here, the parties, in my view, implemented a plan to marry; they held celebrations on two separate days after the ceremony 2016, during which they held themselves out as married; they spent time together alone, overnight, following the ceremony in late 2016.  All of these are, in my view, consistent with the conclusion that they each, or both, considered themselves to be validly married. 

11. There is nothing, in my view, in the material to suggest that either of them, in the circumstances with their respective ages and education, thought that they were simply getting engaged or doing part of a “precursor” marriage process.

12. That distinguishes this case, in my view, from others, including those relied upon by the Applicant, as referred to in the authorities to which reference was made in the written submissions. 

13. In the absence of evidence to establish non-compliance with those matters of form and ceremony, which are recognised as sufficient for the purpose of the religious faith to constitute marriage, I accept the contents of the Certificate of Marriage to the effect that an authorised celebrant married the parties in late 2016.  Therefore, I am not satisfied of the contention that, by reason of s 48, the marriage is not a valid marriage.

14. For the reasons I have expressed, my analysis of the evidence before me is very much to the effect that both parties intended to be married and both parties participated in a ceremony which each of them considered to have that effect.  They had given notice to the religious official, who was also a marriage celebrant.  After the ceremony in late 2016, they participated in two public ceremonies in which they held themselves out to be married persons. 

15. The fact of inducements or promises relied upon does not, as a matter of law in my view, obviate the consent that each of them provided in late 2016 to marrying the other, as demonstrated by the fact of their participation in the ceremony conducted by Mr E on that day.

16. For those reasons, then, I am not satisfied that the Applicant has discharged the onus of establishing those assertions relied upon in the manner particularised as flowing from s 23B of the Marriage Act 1961 (Cth) and the Application will be dismissed.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 8 May 2017.

Associate:                 

Date:    8 May 2017