Jiransky and Gotky

[2011] FamCA 943

FAMILY COURT OF AUSTRALIA

JIRANSKY & GOTKY [2011] FamCA 943

FAMILY LAW – Annulment – Application flawed.  Dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Jiransky

RESPONDENT: Mr Gotky

FILE NUMBER: MLC 7423 of 2011

DATE DELIVERED: 4 October 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 October 2011

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: No appearance

Orders

1. That the application filed 18 August 2011 is dismissed.

2. That the reasons be transcribed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7423  of 2011

Ms Jiransky

Applicant

And

Mr Gotky

Respondent

REASONS FOR JUDGMENT

1. This application is unusually brief.  The final orders sought contains one word:  annulment.  The interim or procedural orders sought contains three words:  dissolvement (sic) of marriage.  Notwithstanding the brevity of the application, I have treated it as an application for an annulment of a marriage that took place on 13 February 2011. 

2. As is required under the rules of the Court, a certificate of marriage was filed with the application.  It appears, although it is very confusing, that Ms Jiransky says that either the marriage was not a legitimate marriage or a valid marriage or that the Act under which the application of the principles that were used in the marriage was unconstitutional.  She says there is no evidence that the purported marriage celebrant was an authorised celebrant.

3. All of those matters are not contained in her affidavit, which was filed at the same time, other than one particular statement.  What Ms Jiransky says is that the marriage celebrant:

   Didn’t wait the 30 day cooling off period.  He asked us to sign documents.  At the time, I didn’t understand that is an intention to marry and a wedding certificate.  Then he sent them in.  I signed them both together, not as intended by waiting 30 days.  This cooling off period was thwarted because the celebrant manipulated the system.

4. That seems to be the first of the two grounds.  The second ground for the application is in a statement which reads:

   [Mr Gotky] –

   and I interpose here that Mr Gotky is Mr Gotky, who is the husband in the proceedings –

   also coerced me by saying, “Just do it, and what will become of you.”  His attitude intimidated me and I understand that is illegal because I am and was at the time very ill and confused.  This can be verified by [Dr B] of the [C Town] Medical Centre. 

5. Attached to the affidavit is a letter dated 20 July.  Attaching a letter in a final orders application is not evidence that would satisfy the requirements of the Evidence Act and I propose to ignore it.

6. The ground that must be established to satisfy a court that it has power to grant an annulment lies in s 23B of the Marriage Act.  That particular provision says that:

   (a) A marriage is void whether either of the parties is, at the time of the marriage, lawfully married to some other person. 

   That is the case asserted here:

   (b) The parties are within a prohibited relationship.

   There is no suggestion of that here:

   (c) By reason of section 48, the marriage is not a valid marriage.

7. Section 48 says that:

   Subject to this section, a marriage solemnised other than in accordance with the preceding provisions of this division is not a valid marriage.

8. A marriage is not invalid by reason of not giving proper notice, false statements, or defects or errors in notice.  It includes the failure of the parties or either of them to make or subscribe a declaration as is required by the law.  It includes the failure to produce to the authorised celebrant a certificate or extract of an entry as required by section 42, or a false statement or defect or error.  It also goes on to set out that failure to comply with sections, 13, 42, 44 and 46 of the Act – which effectively relate to the obligations of marriage celebrants – also do not invalidate the marriage.

9. Subsection (3) reads:

   A marriage is not invalid by reason that the person solemnising it was not authorised by this Act to do so, if either party to the marriage at the time the marriage was solemnised believed that that person was lawfully authorised to solemnise it, and in such a case, the form and ceremony of the marriage shall be deemed to have been sufficient if they were such as to show an intention on the part of each of the parties to become thereby the lawfully wedded spouse of the other.

10. On the relevant date in 2011 when the parties were in fact married, they had an intention to be lawfully wedded spouses.  Hindsight might be a wonderful thing, but there is no evidence here that that was not the intention on the day. 

11. Returning to section 23B, the other reason why a ground can be established is if the consent of either of the parties is not a real consent because it was obtained by duress or fraud.  The evidence of Ms Jiransky is that Mr Gotky intimidated her, but how he intimidated her is by his attitude rather than any conduct which would otherwise satisfy the known definitions of duress under the law.

12. The other consents which are not real consents in section 23B are where a party is mistaken as to the identity of the other party or as to the nature of the ceremony performed.  Ms Jiransky has presented no such evidence. 

13. A consent cannot be a real consent where a party is mentally incapable of understanding the nature and effect of the marriage ceremony.  That also is not the evidence before me today, and the rest of the particular provisions do not apply in this particular case. 

14. There is no evidence upon which I could grant such an application, regardless of what empathy I might feel for the applicant.  I cannot simply thwart the law.  The application does not satisfy a ground under section 23B of the Marriage Act and accordingly it will be dismissed.  The application filed on 18 August 2011 is dismissed.  I will direct the reasons by transcribed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 4 October 2011.

Associate: 

Date:  14 December 2011