Khwaja and Sinha

[2011] FamCA 615

FAMILY COURT OF AUSTRALIA

KHWAJA & SINHA [2011] FamCA 615

FAMILY LAW - NULLITY

APPLICANT: Ms Khwaja

RESPONDENT: Mr Sinha

FILE NUMBER: SYC 7494 of 2010

DATE DELIVERED: 1 July 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 8 February 2011
8 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Morris
SOLICITOR FOR THE APPLICANT:	Paul & Paul Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Newman,
Newman & Associates

Orders

(i)The application filed on 26 November 2010 is dismissed.

It is noted that publication of this judgment under the pseudonym Khwaja & Sinha is approved pursuant to s 121 (9) (g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7494 of 2010

Ms Khwaja

Applicant

And

Mr Sinha

Respondent

REASONS FOR JUDGMENT

the proceedings

1. By an application filed on 26 November 2010 Ms Khwaja (“the applicant”) seeks a decree of nullity of a marriage, celebrated in October 2010, with Mr Sinha (“the respondent”).  The applicant asserts that the marriage is void on the basis that her consent was obtained by duress or fraud and was thus not “real” for the purposes of section 21B(1) of the Marriage Act 1961. If she can establish that her consent was not “real”, for that purpose, she is entitled to a decree of nullity pursuant to section 51 of the Family Law Act.

2. For present purposes, section 23B(1) of the Marriage Act relevantly provides:

   23B(1) A marriage to which this Division applies that takes place after the commencement of s.13 of the Marriage AmendmentAct 1985 is void where –

   (d)the consent of either of the parties is not a real consent because –

   (i)          it was obtained by duress or fraud…

3. In summary the applicant’s case was that the respondent threatened to ruin her reputation and bash her and kill her family if she did not marry him.  She is a member of a close-knit Country 1 community which holds strict, traditional values. The applicant also alleged that the respondent persuaded her to enter into the marriage so that he could obtain a visa necessary for him to remain in Australia.

4. The respondent resisted the application.  He alleged that applicant knowingly and willingly entered into the marriage after a 32 month clandestine relationship between the parties.  He claimed that they conducted their relationship and married in secret because of the strong disapproval of the applicant’s mother and the inevitably adverse reaction of the Country 1 community.

Background

1. The respondent was born in 1985 in Country 2 and is now 25 years old.  He is of the Religion 2 religion and culture.  On 26 May 2007 he came to Australia on a student visa, which has since been extended on two occasions.  The last visa was due to expire on 20 October 2010, on which date he signed an “Application for Migration to Australia by a Partner” (exhibit 1).

2. The applicant was born in 1988 in Country 1 and is now 23 years old.  She is of the Religion 1 faith and is strongly associated with the Country 1 community in Sydney.

3. The applicant migrated to Australia with her parents in 1991.  She attended M School and obtained the Higher School Certificate in 2005.  She then attended university and obtained a bachelor’s degree.  She is presently completing a Masters degree, with the intention of becoming employed in the education field. 

4. The parties met in January 2008, when the respondent approached the applicant at Sydney Suburb 1 railway station.  For the next few months they saw each other at the station or at a shop where the applicant worked casually.  Usually she worked alone in the shop premises.  In mid to late 2008 the applicant gave her mobile telephone number to the respondent.

5. In June 2009 the respondent approached the applicant and her mother (‘the mother’) at Sydney Suburb 2 railway station three times in consecutive weeks.  On the first two occasions he told the mother that he wanted to marry the applicant.  The mother informed him that a marriage was impossible, because he was a follower of Religion 2 and the applicant a follower of Religion 1. 

6. On the third occasion the respondent told the mother that he would “leave the topic of me and [the applicant]”.  He said that he wanted their company because he was lonely in Australia without his family.  The mother agreed that he could contact her and call her his “mum”.  She gave him permission to speak to the applicant on her mobile phone.

7. The applicant alleged that, in August 2010, the respondent told her that his visa would expire on 20 October 2010 and asked her to help him by entering into a “fake” marriage.  The respondent denied that there was ever such a conversation.  He maintained that the applicant assured him that they would marry when she finished her studies in June 2011.

8. In 2010 the parties opened a joint bank account, which the applicant never operated.  It may well be that they opened this account on the advice of the respondent’s migration lawyer.

9. On 18 October 2010 the parties went through a ceremony of marriage at the Sydney Suburb 3 Registry Office.  Immediately before the ceremony they attended the home of friends of the respondent.  The female friend provided the applicant with traditional dress and helped her to dress for the wedding. 

10. After the marriage the parties returned to their respective homes, after having spent one or two hours alone in the respondent’s car.  The parties have never lived together and the marriage has not been consummated.

11. According to the applicant, her mother learned of the marriage on 8 November 2010 when she found text messages between the parties on her mobile phone.  She claimed that her mother “went into shock” when she became aware of the marriage.  The application for a decree of nullity was filed on 26 November 2010.

The Evidence and Witnesses

1. The applicant relied on the following affidavits:

   a)Ms Khwaja (the applicant) affirmed on 26 November 2010, 8 February 2011 and 22 February 2011

   b)Ms A (the applicant’s mother) affirmed 26 November 2010

   Both of these witnesses gave oral evidence by way of cross-examination.

2. The respondent relied on the following affidavits:

   c)Mr Sinha (the respondent) affirmed on 17 January 2011 and 11 February 2011

   He gave oral evidence by way of cross-examination.

3. The applicant presented as a well-educated, articulate but somewhat naïve person in terms of life experience.  I accept that she lives in a close-knit community which requires strict adherence to its traditional values. 

4. As a consequence, the applicant does not socialise with people of her own age.  In particular, she is expected not to associate with young men.  According to traditional values of her community, she would have one life partner to be selected by her family.

5. The applicant’s mother, Ms A, presented as a person with a fixed adherence to the strict values of the Country 1 community.  She displayed a strong sense of grievance at the impact of the marriage on the position of the applicant and herself in the Country 1 community.  Her attitude was demonstrated when she said in cross-examination:  “Yes I believe the solution to the problem is to have the marriage annulled.   She deserves that and I deserve that.”

6. The respondent presented as a much more worldly person than did the applicant.  He had lived in Australia independently of his family for approximately three and a half years prior to the marriage.

The Ground of Duress

1. The term “duress” was given a narrow construction in well-known 19^th century cases.  For example, in Cooper (falsely called Crane) v Crane [1891] page 369 at 375-377, Collins J held that it was necessary for the party claiming duress to establish that “she was quite so perturbed by terror that her mind was unhinged and she did not understand what she was doing …..or that though she understood what she was doing, her power of volition was so paralysed that, by her words and acts, she merely gave expression to the will of the respondent and not her own”. 

2. In Scott (falsely called Sebright) v Sebright [1886] 12 PD 21 at 24, Butt J expressed the principle as follows:

   “Public policy requires that marriages should not be lightly set aside, and there is in some cases the strongest temptation to the parties more immediately interested to act in collusion in obtaining dissolution of the marriage tie.  These reasons necessitate great care and circumspection on the part of the tribunal, but they no way alter the principle or the grounds upon which this, like any other contract, may be avoided.  Whenever from natural weakness of intellect or from fear – whether reasonably entertained or not – either party is actually in a state of mental incompetence to resist pressure improperly brought to bear, there is no more consent than in the case of a person of stronger intellect and more robust courage yielding to a more serious danger.”

3. In The Marriage of S [1990] FLC 90-820 Watson J formulated a less stringent test. After quoting from the two English authorities above, his Honour stated:

   “The emphasis on fear and terror in some of the judgments seems unnecessarily limiting.  A sense of mental oppression can be generated by causes other than fear or terror.  If there are circumstances which taken together lead to the conclusion that because of oppression a particular person has not exercised a voluntary consent to a marriage, that consent is initiated by duress and is not a real consent.  This is so howsoever the oppression arises and irrespective of the motivation or propriety of any person solely or partially responsible for the oppression.”

4. Watson J said also:

   “When the ordinary man says he is acting under duress it is usually the element of oppression that is uppermost in his mind, not necessarily the form of that oppression, be it constraint, threat or otherwise.  It is the effect of the oppression on his mind that should be the operative factor, not the form of such oppression” and

   “I cannot see how I can read down the natural and ordinary meaning of ‘duress’ as equated to oppression or ‘coercion’ to such a degree that there is to be no annulment where the lack of real consent arises from non-violent but nevertheless controlling parental coercion.”

5. In Teves and Campomayer [1995] FLC 92-578 Lindenmeyer J cited with approval the above statements of Watson J in The Marriage of S.  His Honour then said:

   “From the above it can be said that duress does not necessarily need to involve a direct threat of physical violence so long as there is sufficient oppression, from whatever source, acting upon a party to vitiate the reality of their consent.”

   His Honour then cited with approval a statement of Ormrod LJ in the English Court of Appeal in Hirani v Hirani 1983 4FLR (ENG) 232 at 234, as follows:

   “The crucial question in these cases, particularly where a marriage is involved, is whether threats, pressure, or whatever it is, is such as to destroy the reality of consent and overbears the will of the individual.”

6. Lindenmeyer J stressed in Teves and Campomayer that it is necessary that there be evidence of duress at the time of the marriage ceremony.  His Honour said:

   “The cases that I have already made reference to make it clear that it is duress at the time of the marriage ceremony that is critical.  Clearly this can be induced by events prior to it, but in the end it is for the applicant to show that at the time she gave her consent at the ceremony, some overbearing force was operating.  In this, evidence about the ceremony and events occurring during and immediately before it or after it can be extremely important.”

The Evidence in Relation to Duress

1. In her affidavit sworn on 26 November 2010 the applicant made these assertions of duress on the part of the respondent:

   ·when he approached her at railway stations and her place of work he complained of loneliness and financial hardship, which caused her to feel sorry for him

   ·the death of her father in June 2008 had left her feeling very depressed and she was unable to stop his approaches to her

   ·he told her that he wanted her “to become his girlfriend” and informed her mother that he wished to marry her

   ·she believed that any relationship between them was impossible due to religious and cultural differences

   ·according to the strict values of the Country 1 community, she could not have a boyfriend and would accept her parents’ choice of a husband

   ·in August 2010 he informed her that his visa would expire on 20 October 2010 and asked her to help him by entering into a “fake marriage”

   ·when she refused to marry him he threatened to “ruin [her] reputation regarding [her] purity and chastity” within the Country 1 community, by exposing their relationship

   ·after she refused to marry him he threatened to bash her and kill her family

   ·in circumstances where she feared compromise to her reputation and physical assault of herself and her family, she agreed to sign whatever documents were necessary to assist him to overcome his visa problem and to marry him

2. In his affidavit affirmed 17 January 2011 the respondent deposed, in essence, that the applicant initially rejected his advances but “came to accept me despite our dissimilar religions”.  He annexed to his affidavit three photos of the parties taken on outings together between September 2009 and May 2010.  He denied that he told the applicant that he was “lonely and in a difficult situation” in Australia.  He claimed that they met regularly and “there was much intimacy only stopping at intercourse”.  Superficially, the photos appear to show an affectionate and happy young couple.

3. The respondent annexed to his affidavit affirmed 17 January 2011 a handwritten statement made by the applicant on 20 October 2010.  She wrote that their relationship “officially started” on 5 May 2008, which was the date when she gave her mobile phone number to him.  She wrote that he “treated [me] with love” and that she was “happy” when he proposed marriage on 1 August 2010.  She stated:  “after our married life we are residing in a unit at [Sydney Suburb 4].  We have many future plans together including giving birth to possibly two children, buying property and a luxurious car”. 

4. In an affidavit affirmed on 8 February 2011 the applicant deposed that, before the wedding ceremony, the respondent said to her: “you had better look happy because the DVD of the marriage will have to go to the Immigration Department and you therefore need to appear excited and happy so they will believe in the genuineness of the marriage”. 

5. Further in this affidavit the applicant alleged that the respondent did not attend college “at all” in the 18 months prior to the marriage.  She claimed that he told her that it was too difficult for him to pay for and attend classes while he was working.

6. The applicant admitted in this affidavit that the respondent was a person in whom she could confide after the death of her father and “someone I could share my feelings and emotions with…”.  In her own words “I was happy to have a boyfriend/girlfriend relationship with him and in circumstances where he said he did not have many friends and said he felt very lonely without his family I did feel sympathetic towards him and enjoyed the friendship up to a point”. 

7. In this affidavit the applicant repeated her claim that she was afraid that the respondent would ruin her reputation in the Country 1 community if she “rebuffed him”.  Further, she alleged that he sat beside her in the migration lawyer’s office and told her what to write in her statement.  He denied that he was present, claiming that he left the office to obtain some material which the lawyer requested.

8. In his affidavit affirmed on 11 February 2011 the respondent denied that he failed to attend college in the 18 months prior to the marriage.  He annexed a certificate of completion for a Business Studies qualification dated 16 December 2009.  He also annexed photos of the parties talking to his sister in Country 2 by webcam and a picture of the applicant wearing “an engagement ring”.  He further annexed photos of the parties together at two Religion 2 temples and of their wedding.  The applicant is smiling and looks happy in all of these photos.

9. In her affidavit affirmed on 20 February 2011 the applicant attempted to explain the existence of these photos.  She said that the respondent told her that he wanted to send photos to his family in Country 2 “because they are worried about me and I want them to be satisfied that I have found a friend here who is a citizen and who knows about this country, that would be very important to them”.  She maintained that he took some photos of her alone and then told her “that to be satisfied, his family would need pictures of them together”.

10. The applicant suggested in this affidavit that she agreed to participate in photos of the parties together because the respondent already had pictures of her alone and he had by then threatened to ruin her reputation.  She thus opted to continue the relationship, in the hope that he may “change his mind about her or that his mother may persuade him to marry within his own culture”.  She claimed that she hoped to end the relationship “on good terms”, so that the respondent would then desist from harm to her reputation or physical injury to herself or her family.

11. Further in this affidavit the applicant admitted that the photos of the wedding “do show particularly an amount of happiness”.  She contended that the applicant instructed her to “look happy” because “it must look like a real and genuine marriage” for the purposes of his visa application.  She maintained that she thought “now I am in trouble so I had better just do as I have been told to keep him happy”.  She contended that her laughter during the wedding ceremony was a reaction to jokes made by friends of the respondent who were there.

12. In this affidavit the applicant claimed that the “engagement ring” was a birthday gift from the respondent.  She maintained that she wore the ring “only occasionally” and told her family that it was a gift from a female friend. 

13. Further in this affidavit the applicant conceded that she attended a Religion 2 temple with the respondent.  Her explanation was that she was “happy” to see the temple with “someone who could explain things to me”. 

14. In oral evidence, inter alia, the applicant conceded that she kissed the respondent and that he kissed her.  She admitted that there had been “sexual touching but not intercourse”.  She conceded that she has contacted the respondent on three occasions since the commencement of these proceedings.

15. The respondent said in cross-examination words to the effect:

    “The marriage had nothing to do with my visa.  It was both things, I wanted to marry her.”

    He said also:

    “My marriage with her was my dream, I love her a lot.  I am still waiting that maybe she will come back and I can take her to my house.”

16. The respondent conceded that he never telephoned the applicant on the landline at her home.  He said that the reason was that “she did not want her mum to know about us”.  He added:

    “We always tried to make sure that no-one from her family or community saw us.”

17. The respondent contended that the parties planned for him to meet the applicant’s mother at a railway station “to try to convince her about our marriage”.  Presumably, he referred to the three meetings in June 2009.  By that time, the parties’ secret relationship had been on foot for over twelve months.

18. The respondent claimed that there were three options available to him to ensure that he could remain in Australia.  He alleged that he could obtain another student visa; that his employer would sponsor him or that he could marry the applicant.  He called no evidence to establish that the first two options were genuinely available to him.  He admitted that “if I lose this case I will be sent back to my country”. 

1. The applicant’s mother said in her affidavit:

   “About four months ago [the applicant] said ‘he’s calling me all the time, he wants to marry me’.  I explained to [the applicant] ‘if you marry a [follower of Religion 2] I will prepare your funeral and I will pass the news to the public and community members that you have passed away’”.

2. The mother suggested that she made this remark with the intention that the applicant would use her words to dissuade the respondent from insisting on a marriage.  The mother said in cross-examination:

   “I wanted her to tell the guy this so he would leave her alone.  It was for her own good, to get him to leave her alone.”

3. The picture which emerged from all of the evidence was that the parties entered into a genuine romantic relationship in about mid-2008.  They conducted their relationship in secret from the applicant’s family and the Country 1 community for approximately two and a half years before they married in clandestine circumstances in October 2010.  The applicant took no steps to seek a decree of nullity until her mother learned of the marriage on 8 November 2010.

4. It may well have been the case that the respondent was motivated to enter into the marriage to enable him to remain in Australia.  It seems to me to be likely that he was truthful when he said “it was both things”.  On the balance of probabilities, I find that both parties wanted a life together and hoped that they could ultimately persuade the applicant’s mother to accept their relationship.

5. It may well have been the case that the respondent placed pressure on the applicant to enter into the marriage, for his own migration purposes.  I do not accept that the applicant was unable to resist this pressure.  She was 22 years old at the time of the marriage and had lived in Australia since she was a three year old child.  She had completed a tertiary qualification and was studying for a Masters Degree.

6. For these reasons I find that the applicant failed to establish that she did not give a “real” consent to the marriage on account of duress exerted upon her by the respondent.  It is abundantly clear that she regrets that she married the respondent now that her mother has become aware of the situation.  These circumstances do not assist her case.

The Evidence in Relation to Fraud

1. The applicant alleged essentially that the respondent secured her consent for the purpose of obtaining a visa to permit him to remain in Australia, rather than with the intention of embarking upon life together as a married couple.

2. In the Marriage ofHosking (1994) 18 FLR 581 Lindenmeyer J considered the meaning of the term “fraud” in the context of s.23B of the Marriage Act. Having reviewed a number of earlier authorities his Honour reached this concise conclusion: “In summary, then, I conclude that the term ‘fraud’, as it appears in section 23B(1)(d)(i) of the Marriage Act, has a fairly limited scope. Its concern is with fraud as to the identity of the other party or as to the nature of the ceremony, and not as to the motives of the party in entering into the marriage.”

3. There is no doubt that the applicant was aware of the identity of the respondent and appreciated the nature of the ceremony.  As indicated I accept that the respondent was truthful in his evidence that “it was both things”, meaning that he wanted to marry the applicant but he would thereby advance his migration status.  I find that the applicant failed to establish that her consent to the marriage was not “real”, having been obtained by fraud on the part of the respondent.

Conclusion

1. I have found that the applicant failed to establish that her consent to the marriage was not “real”, having been obtained either by duress or fraud on the part of the respondent. Accordingly, I must dismiss the application filed on 26 November 2010.

I certify that the preceding fifty five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 1 July 2011.

Associate:     

Date:              1 July 2011