KEMAL & KEMAL
[2017] FamCA 915
•14 November 2017
FAMILY COURT OF AUSTRALIA
| KEMAL & KEMAL | [2017] FamCA 915 |
| FAMILY LAW – NULLITY – Where the wife seeks a declaration that her marriage is void – Where the wife argues she gave no consent on the basis of fraud – Where the marriage was obtained by fraud – Order made declaring the marriage a nullity. FAMILY LAW – PRACTICE AND PROCEDURE – Undefended final hearing – Where the husband has never engaged in the proceedings – Where the husband has filed no documents – Where substituted service has been effected – Where it is appropriate for the matter to proceed on an undefended basis. |
| Family Law Act 1975 (Cth) s 51 Family Law Rules 2004 (Cth) r 16.07 Marriage Act 1961 (Cth) s 23B |
| Carroll & Sinclair [2011] FamCA 651 |
| APPLICANT: | Ms Kemal |
| RESPONDENT: | Mr Kemal |
| FILE NUMBER: | PAC | 4650 | of | 2016 |
| DATE DELIVERED: | 14 November 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 31 October 2017 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Capellia Legal |
| RESPONDENT: | No appearance |
Orders
That it be declared that the marriage between the applicant Ms Kemal and the respondent Mr Kemal conducted at City B, The People’s Republic of China in 2015 is a nullity.
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 Kemal & Kemal 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 PARRAMATTA |
FILE NUMBER: PAC 4650 of 2016
| Ms Kemal |
Applicant
And
| Mr Kemal |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings commenced by Ms Kemal, the applicant wife, by Initiating Application filed 30 September 2016 in the Family Court of Australia seeking a declaration that her marriage to Mr Kemal, the respondent husband, is void under s 51 of the Family Law Act 1975 (Cth) (“the Family Law Act”).
Context
The wife is aged 31 and the husband is also aged 31.
The parties met through the internet online in 2014 and this application relates to the parties’ “marriage” in China in 2015.
On 30 September 2016 the wife commenced proceedings in this Court.
The wife had significant difficulty effecting service on the husband and orders for substituted service were made on three separate occasions between December 2016 and May 2017. On 16 May 2017 an order made that service upon the husband would be deemed to be effective by the wife uploading her documents to Facebook Messenger to the ‘Mr Kemal’ listed on Facebook.
The order was complied with and on 18 July 2017 the Registrar was satisfied that service had been effected in accordance with the orders of 16 May 2017. The wife was ordered to file one consolidated affidavit of her evidence in chief.
On 8 August 2017 the matter was listed for a compliance check before the Registrar. The matter was set down for hearing on 31 October 2017 and the wife was ordered to notify the husband of this listing by way of Facebook Messenger, which she did.
On 31 October 2017 there was no appearance by or on behalf of the husband.
The husband has never appeared before the Court nor has he filed any documents in these proceedings.
Procedural fairness
Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides:
Parties' participation
(1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.
Note: The court may dispense with compliance with a rule (see rule 1.12).
(2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.
(3)…
On 31 October 2017 the Court was satisfied that all appropriate attempts had been made to notify the husband of the consequences of his non-appearance and that he had been given ample opportunity to engage in the proceedings. In the circumstances, it was appropriate for the matter to proceed on an undefended basis. On that date judgment were reserved.
The Wife’s Evidence
The wife deposes to ‘meeting’ the husband on Facebook in early 2014 while she was living in Australia and he was living in China. Both parties are of African descent.
The husband informed the wife that he was a medical graduate student and was working in China as part of a research project for a Melbourne hospital.
The wife and the husband communicated over the next 12 months.
In April 2015 the wife and her mother planned a trip to Asia for June 2015. After a request from the husband to visit him in China the wife acquiesced and amended her travel plans.
On 4 June 2015 the wife and her mother arrived in City B where they were met by the husband who took them to a hotel near the university he claimed to be staying at. The wife subsequently left the hotel with the husband in order to buy a temporary international sim card for her phone. The husband took her to what appeared to be a government office building as opposed to a shopping centre.
The husband requested the wife give him her passport claiming that he needed to show her passport to the officials before she could get a sim card. The wife deposes to thinking that this was ‘strange’ but was unable to seek assistance as no one appeared to speak English and the husband was conversing with others in Chinese.
The husband then requested that the wife write the words ‘I’ve never been married before and I’m single’ on a form with Chinese text on it. The wife wrote the statement as requested after being told by the husband it was the law and was required for her to get a sim card.
On 5 June 2015 the husband then took the wife to a building he said was an embassy in City B. The wife had at this stage realised the husband still retained her and her mother’s passports and was in some distress. The husband told the wife to “behave yourself; it would be stupid of you to make a scene right now”.
The husband handed over his and the wife’s passports to a female officer and again requested that the wife write the statement ‘I’ve never been married before and I’m single’ on a form he provided to her. The husband then wrote something on behalf of the wife in Chinese and proceeded to get the forms stamped.
The following day the wife became concerned and sought the return of both passports from the husband. The husband requested the wife do one more thing for him on Monday (8 June 2017) and then he would return the passports to her. The husband said he would return on Monday morning and that the wife “better be ready if you want to ever return home safe; you need your passports”.
The wife’s mother was concerned the husband may become physically violent and told her daughter not to go anywhere alone with the husband.
The husband collected the wife and her mother on Monday 8 June 2017. The wife deposes to the husband being nervous and remaining close to her, even following her to the bathroom and waiting outside the door until she came out.
The husband took the wife and her mother to another building at which he produced the documents the wife had completed in previous days, her passport and his passport and gave them to a woman behind a desk. The wife was then asked by the husband to sign another document before he would allow her to leave. At that point the husband informed the wife that he had told the staff at the building that they were engaged. The husband had grabbed the wife’s arm to prevent her from leaving and she signed the document so she could leave.
Subsequently, on requesting the husband return the passports to her, the husband produced an Australian Spousal Visa Application form and asked the wife to sign it. The husband then informed the wife that he was not Australian but wished to work there. He informed the wife that they were now married. The wife “freaked out” saying she would never marry him.
The wife showed her mother the visa application. The wife’s mother devised a plan to get their passports returned. The wife purported to commence filling out the visa form then the wife’s mother informed the husband that they would require their passports to complete the visa application form. The husband produced the passports, gave over the passports and some other documents and said he would return later to collect the completed forms.
The wife and her mother then packed, caught a taxi to the airport and flew back to Australia.
On returning to Australia the wife contacted the Immigration Department and attempted to get legal advice regarding whether she was in fact married to the husband.
The wife subsequently had the documents given to her by the husband translated and one document is a Certificate of Marriage. The Marriage Certificate bearing the seal of the Ministry of Civil Affairs in Jiangsu Province in China is exhibited to the wife’s affidavit. The Certificate notes that “both man and woman who request to be married must attend the marriage registration office to carry out the marriage registration”. The registration is dated …2015.
It is readily apparent how the husband perpetrated the fraud on the wife.
The Law
The application before the Court for a declaration of nullity is made pursuant to s 51 of the Family Law Act, and that provision provides that:
An application under this Act for a degree of nullity of marriage shall be based on the ground that the marriage is void.
The grounds on which a marriage is void is set out in s 23B of the Marriage Act 1961 (Cth), which provides, relevantly, as follows:
(1) A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:
(a)either of the parties is, at the time of the marriage, lawfully married to some other person;
(b) the parties are within a prohibited relationship;
(c) by reason of section 48 the marriage is not a valid marriage;
(d) the consent of either of the parties is not a real consent because:
(i) it was obtained by duress or fraud;
(ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
(iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony; or
(e) either of the parties is not of marriageable age;
and not otherwise.
The wife submits that the marriage is void because her consent to the marriage was not real consent as it was obtained by the husband by a fraud: (s 23B (1)(d)).
The “fraud” relates only to the identity of the other party or as to the nature of the ceremony: see Otway & Otway (1987) FLC 91-807; Osman & Mourrali (1990) FLC 92-111; Hosking & Hosking (1995) FLC 92-579; Carroll & Sinclair [2011] FamCA 651; Valen & Chirere [2013] FamCA 595 and Walton & Esposito [2016] FamCA 336.
Justice Nygh in the Marriage of Osman & Mourrali (supra) considered the meaning of fraud in relation to marriage and said:
The question then arises as to what the fraud should relate to. The language of the section is derived from that found originally in section 18(1)(d) of the Matrimonial Causes Act 1959. That, it has been frequently acknowledged, was not a statute which sought to change in a fundamental way the basis of matrimonial law in this country, as did the Family Law Act 1975.
Rather, it sought to provide a uniform law at a Federal level. With great respect to Frederico J, it cannot be assumed that the parliament intended in1959 to change the then existing common law.
That is further supported by the use of the words which are clearly derived from those used by Sir Francis Jeune P in Moss -v- Moss (1897) P 263, rightly or wrongly regarded as being of great authority in 1961. At pages 268-9 his Lordship said:
But when in English law fraud is spoken of as a ground for avoiding a marriage, this does not include such fraud as induces consent, but is limited to such fraud as procures the appearance without the reality of consent. The simplest instance of such fraud is personation … in every case where a fraud has been held to be a ground for declaring a marriage null, it has been such fraud as has procured the form without the substance of agreement, and in which the marriage has been annulled, not because of the presence of fraud, but because of the absence of consent.
That passage has generally been interpreted as meaning that the marriage is void because the purported consent was given to something other than a marriage, or to a marriage with someone other than the person physically standing at the altar…
The process for the marriage itself and obtaining a marriage certificate was conducted in a foreign country in a language that the wife could not understand. It is obvious that she did not understand the nature of the documents she signed, that she was completely reliant on the husband to explain matters to her and that he did not inform her as to the true nature of the transaction but indeed misrepresented the same to her.
It is clear from the evidence that the wife was induced by the husband’s fraud as to the nature of the documents and transactions that took place at his behest to sign certain documents.
She was not aware of the nature of the transactions in which she was participating until the husband informed her subsequently that they were married.
It is readily accepted that the wife did not consent to the marriage. It was fraudulently represented to her that the transactions were for a purpose other than marriage.
The wife has satisfied the Court her “consent” to the marriage registration was obtained by fraud as contemplated by s 23B(1)(d) of the Marriage Act.
The marriage will be declared a nullity.
Orders will be made accordingly.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 14 November 2017.
Associate:
Date: 13 November 2017
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