Ladue & Magnussen
[2022] FedCFamC1F 365
•26 May 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Ladue & Magnussen [2022] FedCFamC1F 365
File number: MLC 272 of 2020 Judgment of: MCGUIRE J Date of judgment: 26 May 2022 Catchwords: FAMILY LAW – DIVORCE – Where the husband makes an Application for divorce – Where wife opposes the divorce order on the basis that the parties were never married - Application for divorce order is granted Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 4
Marriage Act 1961 (Cth) ss 88C, 88D and 88E
Cases cited: Bahn & Bahn (1981) FLC 91–010
Briginshaw & Briginshaw (1938) 60 CLR 336
Lester & Lester [2007] FamCA 186
Division: Division 1 First Instance Number of paragraphs: 84 Date of hearing: 21 February 2022, 4 March 2022, 24 March 2022 and 31 March 2022 Place: Melbourne delivered Hobart Counsel for the Applicant: Dr Alexander Solicitor for the Applicant: Clements Family Law Counsel for the Respondent: Ms Weiner Solicitor for the Respondent: WMH Lawyers ORDERS
MLC 272 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LADUE
Applicant
AND: MS MAGNUSSEN
Respondent
order made by:
MCGUIRE J
DATE OF ORDER:
26 May 2022
THE COURT FINDS THAT:
1.The parties, Mr Ladue and Ms Magnussen, were validly married in the F Church in City E, Country C in 2006.
2.That the marriage is proved.
3.The applicant, Mr Ladue, was at all material times domiciled in Australia.
4.The ground for the application for a divorce order – namely that the marriage has broken down irretrievably - is proved.
THE COURT, BY ORDER, DECLARES THAT IT IS SATISFIED:
5.The only children of the marriage, as that expression is defined in section 55A(3), who have not attained the age of eighteen years are the children:
(a)U - born 2008;
(b)X - born 2010;
(c)Y - born 2011;
(d)V - born 2014;
(e)Z - born 2016; and
(f)W - born 2018.
6.The Court by Order declared that it was satisfied that the only children of the marriage who have not attained the age of 18 years are the children specified in the order and that proper arrangements in all of the circumstances have been made for the care, welfare and development of the children.
THE COURT FURTHER ORDERS:
7.A divorce Order be made, such divorce order to take effect one month from the date of these Orders being 27 June 2022.
8.Ms Magnussen’s Response to Divorce Application filed 3 August 2020 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym of Ladue & Magnussen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCGUIRE J
APPLICATION
The applicant is Mr Ladue. On 13 January 2020 he filed an application in these Courts for a divorce. In a Response filed 3 August 2020, after service being effected on 2 February 2020, the respondent, Ms Magnussen, contests the granting of a divorce order claiming that the parties were never married.
The applicant asserts that the parties were married in the F Church in City E, Country C in 2006 in a religious ceremony conducted by a priest, Father L, and that the relevant religion is Language M Catholicism.
At the time of the asserted wedding the applicant says that his domicile was in Australia. He says that he travelled to Country C after having met the respondent online.
The respondent was then recently resident in Country C, together with members of her family including her brother and mother, as refugees from Country G. It seems agreed that the parties had not met physically prior to shortly before the asserted wedding where the applicant had travelled to Country C.
The applicant says that for reasons of practicality no members of his family were at the asserted wedding, although it was witnessed by members of the respondent's family.
The applicant did not file a marriage certificate or copy with his Application. In his affidavit sworn 27 September 2021 at [4] – [7] the applicant deposes:
[4]The respondent and I were married in the [F Church] in [City E Country C] on [...] 2006. It was a religious ceremony conducted by the [Country D] priest who presided over marriage ceremonies at the Church, namely [Father L] (sic).
[5]The ceremony was witnessed by members of [the respondent’s] family all of whom live in [Country C].
[6]From the date of the ceremony, [the respondent] and I commenced living as Husband and Wife.
[7]At the time of the wedding I was an Australian citizen. Following the wedding, [the respondent] made an application to the Immigration Department to live in Australia on a Spousal Visa. With her application she acknowledge that we were married in [City E, Country C] on [...] 2006. Her application was granted and we moved to Australia to live on [...] 2006.
In the same affidavit at [12] – [15] the applicant deposes:
[12] [The respondent] and I separated on a final basis on 19 June 2018.
[13]Following separation, on 22 April 2019 I asked [the respondent] for a copy of our marriage certificate and she stated that she had lost it.
[14]As it was my understanding that I was required to provide a copy of the marriage certificate when making an application for divorce, I made enquiries to Centrelink to try and retrieve a copy of the certificate, but was unsuccessful.
[15] I filed for divorce in Melbourne on 13 January 2020.
In her Response filed 3 August 2020 the applicant states at [6] inter-alia:
The applicant and respondent were never legally married.
The applicant and respondent had a small religious ceremony in [Country C]. The ceremony took place in [Country C] on [...] 2006. This was merely a blessing and not a legal marriage.
My lawyer has made enquiries with the [D Church] in Australia…
My lawyer was informed by Father [Q] that he could make enquiries as to whether or not the marriage took place on [...] 2006 between [the applicant] and [the respondent]. Father [Q] noted there was no priest appointed to the [Country C] church currently due to the Covid 19 restrictions however he could make enquiries through the [Country J] Church who also holds the records.
On Saturday, 1 August 2020 my lawyer received an email from Father [Q] confirming:
Dear [...]
Good Morning
Unfortunately we didn't find any of this name [the applicant] and [the respondent] in any register of our Church in [Country C].
Regards
FR [Father Q] …
The applicant had promised to marry me in Australia in a proper wedding but he never did.
Three marriage certificates or copies thereof have since been produced by the applicant. They contain both consistencies and inconsistencies as to content. The respondent says the documents are fabrications as no marriage ceremony took place.
The respondent says that the parties were never married. Although her evidence is somewhat contradictory, she says that the parties received a “blessing” from a priest in City E but that this did not achieve the status of a valid marriage. She then says that her relationship with the applicant was a commercial one in the sense of paying US$30,000 to obtain a Work Visa to Australia and if unsuccessful then to claim “engagement” to the applicant in order to obtain a Spouse Visa. She alleges that the applicant is part of a people–smuggling organisation and later claims that the “blessing” was provided by a priest who came to the respondent's sixth floor apartment in City E together with the applicant with the implication that the priest is also involved in the people smuggling enterprise.
The respondent says that each of their six children were conceived by rape inflicted on her by the applicant under threat of the exposure of fraudulent Visa application and potential return to City C or Country G.
The respondent says that prima facie evidence of a marriage such as the children's baptism certificates noting the parents to have been lawfully married were completed on false information unilaterally provided by the applicant.
Further, the respondent explains relevant inconsistencies in her evidence to this Court and in collateral material where, for example, she references the applicant as her “husband” as resulting from translation difficulties where she says she speaks little or no English and hence places blame on her previous solicitor and/or police officers assisting with Intervention Order applications as mistranslating her instructions.
The respondent offers no understandable motive for the applicant to dishonestly claim to have been married to her and I could take no inference from her evidence as to any such motive in the applicant. The implication from the applicant's evidence is that the respondent is motivated in what he says is a false assertion of there being no marriage by reason of her anger at the separation and/or are his failure to meet obligations for financial support of the six children.
BACKGROUND
The applicant at all relevant times is domiciled in Australia. He is 44 years of age being born in 1977. The applicant is unemployed and lives in Suburb K.
The respondent is 39 years old being born in 1983. She was born in Country G. In 2005 the applicant, her mother, and her brother relocated to City E, Country C. The respondent receives Centrelink in support of herself and the children. She receives no assessed child-support over and above any statutory minimum from the applicant who is unemployed. She too lives in Suburb K. The respondent says that she has various qualifications including tertiary level qualifications in science, social science and allied health.
The parties agree that they spoke online on several occasions. They further agree that the applicant arrived in City E in early 2006.
The applicant says that the parties determined to marry and he travelled to City E for this purpose. The respondent says that the applicant agreed to assist her in obtaining a “Working Visa” to enter Australia and that he would travel from Australia to City E for this purpose, but with a “fee” of US $30,000 to be paid.
It seems agreed that the respondent did travel to Australia in early 2006 on the basis of the granting of a “Spouse Visa”.
The applicant says that the parties lived together and separated “on a final basis” on 19 June 2018.
The respondent deposes in her affidavit sworn 17 February 2022 at [25] – [35] as follows:
[25]The Applicant stayed in [City E, Country C] for less than two months before returning back to Australia.
[26]When the Applicant returned back to Australia, he advised me that he was not able to obtain the Working Visa, on my behalf, but instead he would apply for an “Engagement Visa”.
[27] The Applicant told me that he would later marry me in Australia.
[28]I did not see any visa application or supporting documentation. I did not sign any paperwork.
[29]I was contacted by the [Country C] Embassy on [early] 2006 and was requested to attend their office and submit my passport. I attended and they stamped my Passport.
[30]I was not interviewed or questioned by any government officials regarding the Visa Application.
[31]The Visa was granted and I arrived in Australia on [early] 2006. I regard Australia as my home.
[32]I commenced living with the Applicant and his family as I did not have alternative accommodation. I had my own separate room and paid rent to the Applicant's family from my personal savings.
[33]The Applicant began treating me differently. I was locked inside my room and not allowed to leave my room. The Applicant would leave food for me at the doorstep. The Applicant would always threaten me if I did not do as he said such as sleep with him.
[34]I was no longer able to continue residing in the same house with the Applicant and his family.
[35]On or about [late] 2006, I moved out of the Applicant's home and obtained my own rental accommodation.
The parties agree that they are the biological parents of six (6) children being:
(a)U - born 2008;
(b)X - born 2010;
(c)Y - born 2011;
(d)V - born 2014;
(e)Z - born 2016; and
(f)W - born 2018.
The respondent says that each of the six children were conceived by an episode of rape committed under threat of disclosure of her illegal status in Australia and consequent return to City E or Country G.
The respondent achieved citizenship status in Australia in 2011.
The parties have or have had, concurrent with this application, proceedings in these Courts in respect of property and parenting matters.
The defended divorce application came before Judge Harland in the Federal Circuit Court for hearing in March 2021. Judge Harland took evidence and heard submissions from each of the parties in respect of the disputed fact as to whether or not there was a marriage, but then considered that she was being asked to determine the validity of a marriage being a question outside of the jurisdiction of that Court. Judge Harland delivered Reasons on 28 April 2021which disclose at [42]:
Given the state of the evidence I am unable to grant a divorce as I cannot be satisfied that a valid marriage took place. I have indicated above gaps in the evidence and contradicting documents that are not in proper form. As I do not have jurisdiction with respect to the validity or invalidity of the marriage I am satisfied that the proper course is to transfer this matter to the Family Court for determination of the validity of the marriage, as simply dismissing the application creates much uncertainty for the parties and the children. It would also leave them in the unsatisfactory position of having some documents such as the children’s birth certificates, indicating that the parties were married and others not. The allegations of fraud are serious. The parties will need to address these issues and file further evidence in due course in the Family Court of Australia
On that day Judge Harland made the following order:
1.Pursuant to section 39 of the Federal Circuit Court of Australia Act 1999, these divorce proceedings MLC272/2020 are transferred to the Melbourne Registry of the Family Court of Australia to be listed with such priority as that Court is able to provide.
Each of the parties have variously been represented or self-represented on the application but now both appeared before me represented by counsel appointed pursuant to s 102NA of the Family Law Act 1975 (Cth) where there have been intervention orders obtained by the respondent against the applicant (and numerous members of his family).
Each of the parties has only basic command of the English language and each was assisted by an interpreter.
THE ISSUES
The issue before me is primarily one of credit and disputed fact between the two parties one of whom claims to have been married by undergoing a wedding ceremony whereas the other denies that the parties were ever married. To be relieved of the status of marriage by divorce there must first have been a valid marriage. Without a marriage there can be no divorce. As such, the primary issue is one of a determination of fact. In my view, therefore, the issue is not, as seen by Judge Harland, one of the validity of a marriage in circumstances where one party says that they were not, in fact, married. Nevertheless, if I am to find that there was a marriage then it must have been a valid marriage according to the provisions of the Family Law Act 1975 (Cth) (‘the Act’).
Interestingly, and worthy of some consideration, is whether there is a second issue for my determination? That is, although the respondent says as a matter of fact there was no marriage, her counsel in final submissions urges me to find, if I determine there to be a marriage, that the marriage was not valid. Although I am somewhat troubled logically that a party can argue in the alternative that there is no marriage and also that the marriage is not valid, on reflection I accept both questions to be relevant and for me to make findings accordingly where the respondent says (on one version) that the parties took part in a ceremony that involved no more than a blessing which did not attain the status of a marriage and where the Family Law Act 1975 (Cth) (‘the Act') itself speaks of “valid” marriage.
THE APPLICANT’S CASE
The applicant has provided a number of affidavits in support of his application. His evidence is relatively consistent being of an initial contact online followed by him travelling to City E in early 2006. He says that the parties were married in a religious ceremony conducted by Father L at in early 2006 in the F Church City E. This is a church of the Language M Catholic Church and the applicant concedes that in his affidavits he has been inconsistent and incorrect in nomenclature where he has, for example, referred to the Church as the “Country D Catholic Church”.
The applicant says that members of the respondent's family attended the ceremony but none of his family due to them residing in Australia. He says that the respondent's brother was a formal witness to the marriage together with a relative of the presiding priest.
The applicant says that subsequently an application was made through the Australian Embassy for a Spouse Visa for the respondent with the application successfully granted and the respondent travelling to Australia in early 2006.
The applicant says that three of the parties’ children U, X and Z were baptised and confirmed in B Church in Melbourne with the baptism certificates noting the marriage of the parents.
The applicant relies on prior representations by the respondent in affidavits filed in this Court and in the material lodged in support of various applications in state courts that he is her “husband”.
The applicant attaches photographs to his affidavit of himself, the respondent, and the children in happy circumstances contrary to the respondent's claims of family violence, fear, and threat perpetrated by the applicant on her.
The applicant offers a motive in the respondent for objecting and contesting the divorce application being of anger towards him either because he separated from her and/or his inability to support the children financially. At [26] of his affidavit of 27 September 2021 the applicant states:
I believe [the respondent] is fabricating a story that we are not married is amongst other things, for the purpose of causing me delay and obfuscation in the application for divorce. In doing so [the respondent] was prepared for her own selfish purposes to jeopardise the standing of the children in their cultural and religious community.
On the last day of these lengthy proceedings, with leave of the Court, the applicant adduced evidence by video/Microsoft Teams from Father L. His affidavit is sworn 28 February 2022.
Father L confirms that he was the parish priest of the F Church in City E, Country C, from 2002 until 2009 and having a recall of performing the marriage ceremony between the parties in his church.
Father L deposes that the marriage ceremony was conducted in accordance with local law.
Father L annexes a marriage certificate copy certified by him and written in English and also containing the original. He deposes the certificate to be in his own hand and signed by him in 2006. Father L confirms that his sister-in-law was enlisted as a witness to the marriage.
Father L was cross-examined at some length as to his recollection from 2006 and as to the contents of his affidavit with the suggestion that he may have visited the respondent's home but did not conduct a marriage ceremony. Father L withstood such cross-examination and was consistent in his evidence, albeit impressively claiming a distinct recollection of all of the marriages he has conducted since 2006.
I generally found the evidence of Father L to be honest and candid. His evidence is supportive of the applicant's evidence.
THE RESPONDENT’S CASE
The respondent says that the parties were never married. She claims that the certificate of marriage is a fabrication. She says that extracts or certified copies of the marriage certificate subsequently obtained by the applicant are fraudulent and is evidenced by inconsistencies in the contents of the three documents now provided to the Court.
At parts of her evidence the respondent claims, at its highest, that the parties had a “blessing” by a priest who attended at her family’s sixth floor apartment in the presence of her mother and brother. She asserts that this did not achieve the status of a valid marriage.
The respondent says that her relationship with the applicant was a commercial one to obtain a visa for her to enter Australia at a cost of US $30,000. She says that the marriage was proposed only as an alternative to an unsuccessful Work Visa and therefore apparently is a sham to effect an illegal entry into Australia.
The respondent says that each of the six children were conceived, between 2007 and 2018, by rape accompanied by threats from the applicant to expose her illegal status to Australia and potential return to Country C or Country G. She says that she was a victim of a “multitude” of rapes.
At its highest, the respondent says that she and the applicant cohabited for only six months immediately upon her arrival in Australia and that she left the applicant’s home in November 2006.
The respondent says that she has never used the applicant's surname but has consistently used the surname “Magnussen” on formal documents.
The respondent says that the baptism certificates were obtained unilaterally by the applicant.
When confronted with evidence contrary to her case such as her use of the term “husband” in other collateral documents, she repeatedly and consistently claimed that others, including her previous solicitor and/or police officers assisting with intervention order applications, were the authors of those documents given her poor command of English and that they fell into error by reason of inaccurate translation or unilateral assumption/presumption by them. She says the photographic evidence merely represents a point in time and, in any event, was obtained within the climate of consistent violence and threat.
The respondent did not challenge the applicant as to motive for him apparently bringing an application for divorce where according to her there had been no marriage.
The respondent's brother, Mr N gave evidence on affidavit sworn 17 February 2022. He gave evidence over Microsoft Teams from City O and was cross examined. He denied being witness to any marriage or having a knowledge of any marriage between the applicant and the respondent. He supported the respondent's version of the applicant being involved in people smuggling and elaborated on the respondent's own evidence to a degree in the confirming a visit to the apartment by a priest but interestingly did not give evidence of any “blessing ceremony” but rather implicated the priest in people smuggling. He says that there was a visit to the sixth floor apartment by a man “in plain clothes”, accompanying the applicant and who he learned only later to have been a priest.
Mr N conceded that he held anger towards the applicant for not being committed to the financial support of the six children of the parties.
THE RELEVANT LAW
The first question for the Court is one of fact or credit being were the parties married as claimed by the applicant? I make this determination by weighing and balancing the evidence of the parties and their witnesses with the standard of proof on the assertion made by the applicant being one of on the balance of probabilities pursuant to s 140 of the Evidence Act 1995 (Cth) which provides:
Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject-matter of the proceeding; and
(c)the gravity of the matters alleged.
The provision generally reflects the common law position now most often cited from Briginshaw & Briginshaw[1] where Dixon J stated at 361–362:
…when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality. … it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
[1] (1938) 60 CLR 336
Section 4 of the Act defines divorce as:
divorce means the termination of a marriage otherwise than by the death of a party to the marriage.
divorce or validity of marriage proceedings means:
(a)proceedings between the parties to a marriage, or by the parties to a marriage, for:
(i)a divorce order in relation to the marriage; or
(ii)a decree of nullity of marriage; or
(b) proceedings for a declaration as to the validity of:
(i) a marriage; or
(ii) a divorce; or
(iii) the annulment of a marriage;
by decree or otherwise.
The Marriage Act 1961 (Cth) at s 88C provides:
1.This Part applies to and in relation to every marriage solemnised, whether before or after the commencement of this Part, a foreign country where:
(a)under the local law, the marriage was, at the time when it was solemnised, recognised as valid; or
(b)if the marriage was solemnised by or in the presence of a diplomatic or consular officer of another foreign country:
(i)under the law of that foreign country, the marriage was not, at the time when it was solemnised, recognised as valid; and
(ii)at the time when it was solemnised, the solemnisation of the marriage was not prohibited by the local law.
2.Where a marriage (not being a marriage referred to in subsection (1) that was solemnised, whether before or after the commencement of this Part, in a foreign country:
(a)is, at any time in relation to which the validity of the marriage falls to be determined, recognised as valid under the local law; or
(b)if the marriage was solemnised by or in the presence of a diplomatic or consular officer of another foreign country and, at the time when it was solemnised, the solemnisation of the marriage was not prohibited by the local law… is, at any time in relation to the validity of the marriage falls to be determined, recognised as valid under the law of that other foreign country;
this Part applies to and in relation to the marriage from and including that time.
Section 88D provides in respect of validity of marriages:
(1)Subject to this section, a marriage to which this Part applies shall be recognised in Australia as valid.
(2)A marriage to which this Part applies shall not be recognised as valid in accordance with subsection (1) if: …(certain exceptions apply which do not apply in the factual platform now before me).
Section 88E of the Marriage Act 1961 (Cth) provides:
Validity of certain marriages not affected by this Part
(1)Subject to subsection (2), a marriage solemnised in a foreign country that would be recognised as valid under the common law rules of private international law but is not required by the provisions of this Part apart from this subsection to be recognised as valid shall be recognised in Australia as valid, and the operation of this subsection shall not be limited by any implication arising from any other provision of this Part.
…
The exceptions to recognition in this section are not applicable here.
In the matter now before me the respondent seeks a declaration to the effect that the parties were never married. A similar situation confronted the Full Court to in Lester & Lester[2] where a husband denied that the parties were ever married. The Full Court opined:
[50]…where parties have lived together for a significantly long period of time and there is evidence of reputation from others in favour of the parties having been married the presumption arises and may be rebutted only with clear evidence showing that the parties had not married. …
[57]In the absence of a finding that a marriage ceremony took place, even one of questionable validity, the evidence in relation to cohabitation and repute would need to be substantial to allow such a presumption to operate. …
[58]…the application of the presumption must be consonant with the evidence in the case, not (sic), as it does here, in an evidentiary vacuum. …
[2][2007] FamCA 186.
The factual platform here can be distinguished. Although the applicant claims some duration of cohabitation of approximately 12 years, his case fairly and squarely sits on an assertion of a marriage ceremony resulting in a certificate which he did not have possession of at the time of filing the divorce. He does not adduce corroborative evidence in respect of the long cohabitation and indeed, the respondent says the cohabitation was of a period of only approximately six months, albeit where the applicant himself says that the parties did not separate until June 2018. In an evidentiary sense, neither party adduces any evidence to corroborate his or her asserted date of separation.
An alternative argument put by counsel for the respondent is that should the Court find a marriage ceremony took place as asserted by the applicant then there is no or no sufficient evidence as to the validity of that marriage in respect of its lex loci celebrations. The Full Court confronted this issue in Banh & Banh[3] where it stated at page 76,127:
While conceding that the trial judge was entitled on the evidence before him to find that some ceremony between the parties had in fact taken place, the appellants counsel submitted that there must be expert evidence proving the validity of the marriage. That submission is clearly wrong: see Sheludko & Sheludko (1972) VR 82. The appellant’s counsel's alternative submission was that proof of the validity of the marriage must be established by acceptable evidence, based on knowledge. The trial judge had the evidence of the wife, which he accepted, and which was based on knowledge. He had further the evidence of Lehora Richardson. In our view, his Honour was entitled to find that the evidence established that the ceremony which did take place was in conformity with local law and tradition.
[3] (1981) FLC 91-010.
FINDINGS AND CONSIDERATIONS
Where my determination is squarely based on a single disputed fundamental fact and therefore an issue a credit, I prefer the evidence of the applicant. His evidence has been consistent including under cross-examination in Court. His evidence withstood vigorous cross-examination. He gave plausible explanations for difficulties with his case such as his inability to provide a marriage certificate with the application for a divorce and translation inconsistencies with the copies subsequently provided.
Father L offered persuasive corroborative and consistent evidence of the applicant's case.
Significantly in my view the respondent can point to no motivation in the applicant, on her case, almost bizarrely making an application for divorce and proceeding in its prosecution over almost two years if, as she asserts, there was no marriage. Indeed, the issue of motivation was not to put to the applicant except by myself whereupon he offered the explanation that he would be unable to remarry unless he was divorced. It follows, of course, that the process of applying for a divorce if one is not married would be an exercise in futility.
Conversely, the respondent was not so impressive a witness as was the applicant. Her material filed with the Court is replete with inconsistencies and where explanations given in Court, even taking into account language difficulties, were unconvincing with a tendency to deflect blame to others such as solicitors inaccurately drawing her documents. She did not, however, bring those alleged authors to court to corroborate her claims and where no explanation is given for the failure to adduce such evidence then it is open for me to consider, and I do, the ramifications of Jones v Dunkel (1959) 101 CLR 298 where it is open for me to find that such evidence if adduced and given honestly would not have been of assistance to the respondent's case.
The respondent herself in various documents refers to the applicant as her “husband”. Notably, the respondent references the applicant as “husband” in a number of applications to State Courts.
It is clear that the respondent entered Australia on a Spouse Visa.
The respondent gives inconsistent evidence in respect of her own dealings and relationship with the applicant. Initially she asserts that the parties undertook a “blessing” by a priest but without then referencing any allegations of people smuggling or sham Visa applications. She brings this evidence only in later material.
The respondent's claim of conceiving six children all by effective rape between 2007 and 2017 and under fear of threat from the applicant of exposure of her illegal immigrant status is inconsistent with the respondent herself obtaining Australian citizenship as long ago as 2011 and generally incompatible with her claim to have lived independently of the applicant since November 2006.
Documents such as the children’s birth certificates and baptism certificates prima facie show the parents as married. The respondent herself in affidavits filed in the parenting/property proceedings references the parties having been married and notably in her affidavit of 17 March 2020 where she refers to the applicant as her “husband”. She deposes that the parties met online and that the applicant travelled to Country C to marry her. She deposes the parties having lived together between February 2006 and the end of 2016 and notifying Centrelink that she was separated on 16 June 2017. In an affidavit of 29 September 2020 in those proceedings the respondent then deposes that the parties were not legally married and that she had never adopted the applicant's surname. She does, however, depose that she and the applicant lived together as husband and wife and had children together with the inference being of a form of committed common law marriage. She again deposes to a small religious ceremony or blessing but asserts that the marriage did not comply with the local civil law. She does not adduce any corroborative evidence in respect of those requirements. She variously deposes to separation in November 2006 or 2016.
The respondent does not adduce evidence from the priest who baptised the children to corroborate her claims of the certificates being prepared on material or facts supplied unilaterally by the applicant.
The respondent claims research of the D Church showing no records of marriage. The evidence, as I understand it, however, is that the parties were married in the F Church in City E. The respondent relies and tenders a copy of her Country G citizenship certificate which references her as being single. That certificate is, however, dated 2020 which does not assist given that there is no dispute between the parties that this was her status as of that date.
I have before me various applications by the respondent for intervention orders against the applicant and members of the applicant's family. The respondent consistently references the applicant as her “husband”. She again deflect blame to police officers as authors of those documents and incorrectly translating her instructions as she does in respect of her solicitor making the same translation errors in affidavits filed in these proceedings. Her explanations without corroboration are frankly not credible where the asserted mistakes are made by various different professionals and where those persons have not provided affidavits.
The respondent’s explanations for the photographs annexed to the applicant's affidavits are unsatisfactory and less than convincing. The photographs generally show the parties in happy family moments together with other family members and on an occasion the parties themselves in an apparent and obvious happy embrace whilst on holiday in City P. This does not sit comfortably with the respondent's evidence that she was the victim of violence, threat and rape at the hands of the applicant over a period of many years.
The evidence generally supports the respondent's contention that she never took the surname of the applicant. I do not find this evidence, however, to be determinative but simply to be weighed against the other evidence both for and against the cases of each of the parties.
The respondent does adduce evidence from her brother who similarly says that he did not attend a marriage ceremony in a church between the parties but where he is noted as a witness and confirmed as such by Father L. Her brother’s evidence is, however, contradictory in many respects and detail to that of the respondent herself. He too asserts a people smuggling scam with a fee of US $30,000. He does not give evidence of any “blessing” but suggests a visit by a man in “plain clothes” who he only later learned to have been a priest but where this man by implication was also involved in people smuggling. In detail his version differs markedly from that of the respondent.
Importantly, and contrary to my observations of the applicant, the respondent's brother offers a motive for her contest of the divorce application being his own asserted anger at the applicant for not providing adequate financial support for the parties’ children.
Taking all of these matters into account I easily prefer the evidence of the applicant over that of the respondent whose material is often contradictory, unexplained, and/or implausible. Consequently, I am prepared to find that the parties were married by Father L in F Church in City E, Country C in 2006.
Given specific evidence of the Father L and consistent with the above-mentioned decision of the Full Court in Banh & Banh (supra) I am satisfied as to the validity of the marriage.
During their final submissions, counsel for each of the parties agreed that it would be proper, should I make a finding of a valid marriage consistent with the applicant's case that I proceed to make a divorce order. I am therefore satisfied as to the marriage of the parties; the applicant's domicile; and of an irretrievable breakdown in the relationship evidenced by the parties separation on the applicant's evidence from 19 June 2018. I note however that there are concurrent parenting proceedings in respect of the six children of the relationship and I am consequently satisfied as to provision for those children. I will make an order for divorce such to become final after the expiration of one month from the date of these orders.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 26 May 2022
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