LIN & NICOLL
[2016] FamCA 401
•26 May 2016
FAMILY COURT OF AUSTRALIA
| LIN & NICOLL | [2016] FamCA 401 |
| FAMILY LAW – PRACTICE AND PROCEDURE – validity of marriage – where the parties are of South East Asian descent – where the wife brings the application but it is opposed by the husband – where the marriage is valid and a divorce is granted. |
| Family Law Act 1975 (Cth) s 113 Marriage Act 1961 (Cth) s 88C, 88E |
| Bahn & Bahn (1981) FLC 91-010 Hooshmand & Ghasmezadegan (2000) FLC 93-044 Jacombe v Jacombe (1961) 105 CLR 355 Lester & Lester (2007) FLC 93-308 Milder v Milder [1959] VR 95 Nygh & Kasey [2010] FamCA 145 Savenis v Savenis [1950] SASR 309 Vordermaier & Vordermaier [2007] FamCA 1700 X & X (1983) FLC 91-306 |
| APPLICANT: | Ms Lin |
| RESPONDENT: | Mr Nicoll |
| FILE NUMBER: | ADC | 3832 | of | 2015 |
| DATE DELIVERED: | 26 May 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Justice Dawe |
| HEARING DATE: | 8 April 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Koziol |
| SOLICITOR FOR THE APPLICANT: | BK Legal |
| COUNSEL FOR THE RESPONDENT: | n/a |
| SOLICITOR FOR THE RESPONDENT: | In Person |
Orders
I declare that the marriage of Ms Lin and Mr Nicoll in 1978 in South East Asia was valid.
I find that the parties are domiciled in Australia and are citizens of Australia.
I find the ground of irretrievable breakdown established.
I pronounce a divorce order of dissolution of marriage to become effective in one month’s time.
I declare that there are no children of the marriage who have not already attained the age of 18 years.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lin & Nicoll 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 ADELAIDE |
FILE NUMBER: ADC 3832 of 2015
| Ms Lin |
Applicant
And
| Mr Nicoll |
Respondent
REASONS FOR JUDGMENT
Introduction
By way of Application for Divorce filed 8 October 2015 Ms Lin (“the wife”) seeks a grant of divorce finalising the marriage between herself and Mr Nicoll (“the husband”). I will refer to the parties as “husband” and “wife” however there is no significance attached to my use of this terminology and I do so purely for convenience.
By way of Response to Divorce filed 3 November 2015 the husband seeks that the wife’s application be dismissed. It is his position that a marriage was not solemnised.
In order to grant the divorce the Court must be satisfied that the parties are validly married.
The application was heard before me on 8 April 2016. On that occasion the wife was represented by Mr Koziol of counsel and the husband appeared in person.
The wife sought to rely upon her Application for Divorce filed 8 October 2015, the affidavit of the wife filed 8 October 2015 and 24 March 2016 and the affidavit of Ms B filed 1 February 2016.
I was also assisted by the wife’s Case Outline document.
The husband sought to rely upon his Response to Divorce filed 3 November 2015, his affidavit filed 14 December 2015 and the affidavit of Mr C Nicoll filed 2 March 2016.
Background
The wife was born in 1956 and was 60 at the time of trial. The husband was born in 1952 and was 63 at the time of trial. The parties were both born in South East Asia. They met in mid-1978 and commenced cohabitation not long after. There are two adult children of the relationship.
Relevantly, the wife suggests that some years before the parties met she attempted to flee a country in South East Asia, which at the time was under the political regime of the Communist Party. The wife deposes however that she was apprehended and served a prison sentence. As a result, she was deprived of her citizenship and prohibited from acquiring identification documents or a passport. She says the husband was also detained and spent time at a re-education camp as a result of him having served as an officer of the National Military Academy of the country.
The wife became pregnant not long after the parties commenced their relationship. It is the wife’s position that they underwent a traditional marriage ceremony in South East Asia in late 1978 in the presence of their respective families. The wife says the ceremony was small so as to avoid the adverse attention of the authorities. It is uncontested that there is no record of the alleged marriage ceremony.
The parties escaped South East Asia in 1984 by boat in December of that year without identification documents or passports. They initially resided at a Refugee Camp. This is where their second child was born.
The husband proceeded to make an application for refugee status on his behalf and on behalf of the wife and their two infant children. It is conceded by the husband that in the course of the application he disclosed that he was married to the wife. It is his position that the purpose of the disclosure was to benefit the refugee application.
At the time the father’s sister was residing in Australia. She acted as a sponsor for the application and signed two statutory declarations dated 12 March 1985 and 4 April 1985. The statutory declarations are marked “HL1” and “HL2” and are annexed to the affidavit of the wife filed 24 March 2016. The statutory declarations assisted the parties’ visa applications and listed the wife as the husband’s “spouse”. In both documents she declared the parties marital status to be “now married”.
The parties were granted refugee status and arrived in Australia on 22 August 1985. They continued to cohabitate and live as a couple with their children until 19 April 2007 when the wife left the family home. It is uncontested that to an extent the parties’ families and friends acknowledged and deemed them to be married.
The parties have been separated for more than eight years.
The wife says that she did not apply for a divorce sooner as she had hoped the parties would reconcile.
The husband trenchantly denies that the parties were every married, traditionally, religiously or legally in South East Asia or in Australia.
Evidence
The wife
The wife gave brief evidence in chief to supplement her affidavit material. She elaborated on the circumstances surrounding the alleged marriage ceremony that took place in South East Asia.
The wife’s parents discovered she was pregnant. It is the wife’s evidence that she then raised their concerns with the husband and he arranged an informal meeting at his parents’ home to “clarify our relationship”. The wife reiterated that the “family catch up” involved a meal whereby both parents accepted the parties as husband and wife.
The wife says no formal ceremony took place on that occasion but it is her belief that the gesture of the husband’s family accepting a fruit platter from her parents and the sharing of a meal between the parties’ families constituted a traditional marriage ceremony.
The wife had attempted to flee South East Asia unsuccessfully on two separate occasions. The wife says she was a “fugitive in her own country”, she had been denied citizenship and that the parties engaging in any legal ceremony was not possible.
The husband asked only a few questions of the wife. The wife confirmed that the parties did not have an “official ceremony by law” but that they engaged in a traditional ceremony between the parties’ two families. The wife maintained that the acceptance and recognition of their relationship by their respective families constituted a traditional ceremony.
The husband further challenged the wife about perceptions among the communities of their relationship being a marriage. The wife confirmed that the parties were recognised within the community as husband and wife. She said that no one ever questioned their relationship. They arrived in Australia as refugees with two small children. The wife further relied upon their visa application in which the husband stated they were a married couple.
Witness - Ms B
Ms B gave brief evidence in chief to supplement her affidavit filed 1 February 2016. Following a discussion with the husband and counsel for the wife paragraphs 6 to 15 inclusive of that affidavit were struck out.
Ms B has known the parties and their children for more than 20 years. She gave evidence that she met the wife at a multicultural concert in Adelaide in approximately 1995. She says she has always considered the parties to be married and recalls the wife referring to the husband as “her husband” or “former husband”.
The husband did not cross examine Ms B.
The husband
The husband was offered an opportunity to provide further evidence which he declined. Counsel for the mother proceeded with cross examination.
The husband confirmed that the parties commenced cohabitation not long after their relationship began. He further confirmed that the wife became pregnant almost immediately. He said he wanted to “do the right thing” by the wife and their unborn child.
He described the relationship between the parties as predominately “boyfriend and girlfriend”. He said at the beginning of their relationship his focus was on escaping from South East Asia. He said he did not have time to think about their future. The husband agreed that the parties’ families came together for a meal but that on that occasion there was not an official or traditional ceremony. He accepted that the relationship was recognised by the parties’ parents as the “status quo”. He agreed that his parents’ brought a plate of fruit to the event as a gift.
After the meeting of the two families the husband says the parties did hold themselves out as a couple but not as husband and wife. He did not agree that his family or the community believed they were married.
He says when he met friends in Australia they formed their own perceptions. He explained that in in their culture it is impolite to ask about one’s relationship, so often assumptions are made and in their case it is likely people assumed they were husband and wife. The husband’s position was that the perceptions of others probably derived from the “[South East Asian] thinking” that when a man and a woman have a child together they are regarded as married.
The husband agreed that to an outsider their relationship would have appeared to be a marriage, either formally or traditionally recognised.
When questioned about the statutory declarations signed by his sister the husband explained that he never spoke to his sister before she filled out the application. The situation in the refugee camp did not permit them to do so. He maintained that he never explained the status of their relationship to his sister. He could not explain why she filled out the form in that way but suggested she probably considered promoting their relationship in that way to increase the possibility of the success of the visa applications.
The husband was challenged as to why he indicated on the visa application that the parties were married, as opposed to being in a de facto relationship. The husband said that at the time his understanding of the English language was basic and he probably ticked the box because he considered the parties to be a “family unit”.
The husband was taken to paragraph 5 of his affidavit where he says:
While staying in the camp, I applied for refugee status for the whole group, the applicant, my two children and I. At the time, I did claim the applicant was my wife and the mother of our two children with the sincere hope that we would build up our future together in a third country, even though we had never legally married before
The husband gave evidence that by “sincere hope” he did not mean that they would get married but that they would build their future together in Australia. He gave no consideration to formalising the marriage once in Australia and saw no need to partake in a legal or traditional ceremony.
The husband was challenged by counsel for the wife about his motivation for denying the wife a divorce. Counsel proposed that the husband remains concerned that the wife will initiate property settlement proceedings. The husband explained that he had sought advice from the Legal Services Commission who advised him that the relationship was de facto and terminated itself after 12 months of separation. He referred to the parties having no assets or dependent children.
The wife’s application sets out what her alleged motivation for the application is at paragraph 21:
I wish to be able to freely move on with my life and know that I am not going to be alleged to be committing an offence such as bigamy…
The husband did not accept the wife’s position referring to the warning he received from the Legal Services Commission that the wife may initiate property settlement proceedings at a later stage.
Witness - Mr C Nicoll
Mr C Nicoll is the husband’s younger brother. He lives in Sydney and is employed in health care. He has known the wife since early 1979. Mr C Nicoll accompanied the parties to Indonesia and subsequently Australia when they fled South East Asia.
His evidence was that whilst in South East Asia and Australia he was not invited to or aware of “any official, legal, traditional or religious matrimonial ceremony” between the husband and the wife.
Mr C Nicoll was cross examined by counsel for the wife.
Under cross examination Mr C Nicoll confirmed that he had always considered the parties to be in a de facto relationship. He explained that he was 15 years old in 1978 and lived with his parents. He maintained that he had no knowledge of a traditional, cultural or legal ceremony taking place between the parties at any time during which they were living in South East Asia.
Mr C Nicoll was challenged as to his evidence that in their culture there is no difference between a married couple and an unmarried couple who have children. He confirmed that culturally one would think they were married if they had children.
The law
The Family Law Act 1975 (Cth) (“the Act”) provides a mechanism by which an application can be made for a declaration as to the validity of a marriage. Section 113 provides as follows:
In proceedings of the kind referred to in paragraph (b) of the definition of matrimonial cause in subsection 4(1), the court may make such declaration as is justified.
Part VA of the Marriage Act 1961 (Cth) (“the Marriage Act”) is relevant to the recognition of foreign marriages. Section 88C of the Marriage Act states:
(1)This Part applies to and in relation to every marriage solemnised, whether before or after the commencement of this Part, in a foreign country where:
(a)under the local law, the marriage was, at the time when it was solemnised, recognised as valid…
Section 88C(2) provides that if, in effect, subsequent laws passed in the country in which the ceremony was celebrated recognise that the ceremony was valid this would have the effect of it being considered to be valid in Australia.
It is common ground here that the marriage would not, at the relevant time, have been recognised as valid in South East Asia because of the inability of the parties to register the marriage with the authorities given their denial of citizenship or identification documents including a passport.
The wife therefore relies upon s 88E of the Marriage Act which states:
(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.
Subsections which provide exceptions to this recognition are not relevant for the purpose of these proceedings.
The question then for the purposes of s 88E(1) is whether the relationship between the parties can be recognised as a valid marriage under the common law rules of private international law.
The common law principles were set out in Hooshmand & Ghasmezadegan (2000) FLC 93-044 a decision of Penny J in the Family Court of Western Australia. This case was considered more recently in Nygh & Kasey [2010] FamCA 145 where Faulks DJC had to determine whether a marriage solemnised in the refugee camp.
The approach taken by his Honour was that outlined in Milder v Milder [1959] VR 95, where the Full Court said:
… compliance with the law of the place of celebration is to be regarded as impossible, whether because there is no law enforce there or because facilities are denied or because compliance would be against conscience…
It is the wife’s position that it was impossible for the parties to register their marriage. The evidence of the wife is that both parties were denied citizenship and adverse consequences may have followed if the authorities were alerted to their marriage ceremony.
Consideration of what constitutes “impossibility” was considered in Savenis v Savenis [1950] SASR 309. In that case the parties celebrated a marriage in 1945 in Germany. The ceremony was conducted in accordance with requirements of the Roman Catholic Church. German law required a civil ceremony but the parties did not engage in such as no registry office was available to them given it was the close of the war. Mayo J held that compliance with German law was impossible and that the marriage was valid according to common law requirements.
By contrast in X & X (1983) FLC 91-306 the parties were domiciled and resident in South East Asia. Watson J declared the marriage to be null and void on the basis that “the necessary civil authority and facilities were operative” and “[t]he fact that the parties did not avail themselves of registration because of their actual or intended refugee status does not alter the fundamental necessities for validity”. His Honour held that the law applicable to decide whether a marriage is void is generally the law where the marriage took place, the lex loci celebrationis. It was further held that there is an exception to this general principle in cases where civil authority has broken down because of war-caused chaos.
In the earlier case of Milder (supra), the parties underwent a Jewish marriage ceremony but one which did not comply with German law at the time. The evidence of the parties was that in accordance with Jewish law a civil ceremony was not required, and they considered the Jewish ceremony to be sufficient. Smith J held that on the evidence there was nothing that hindered the parties from complying with local law and that the marriage was invalid.
Given the civil unrest in South East Asia at the time and the inability of the parties to acquire necessary identification documentation a civil marriage ceremony was not available to them in South East Asia. It was impossible for the parties to undertake a valid marriage ceremony in South East Asia. Consequently the parties fall within the exception at common law and it is open to this Court to declare the marriage valid.
The issue then is the husband’s denial that a marriage ceremony ever took place either in South East Asia or Australia. The husband does not deny that there was a small gathering of members of the parties’ families, but refutes that it should be acknowledged as a marriage ceremony.
Counsel for the wife submits that if there is any doubt that the marriage ceremony took place in South East Asia then based on the evidence of long standing cohabitation together with the parties having held themselves out as married the Court has the power to rely upon the common law presumption of marriage.
In Lester & Lester (2007) FLC 93-308 there was significant doubt as to whether a marriage ceremony had occurred. The husband denied that the parties were ever married and sought a declaration to that effect. The Full Court held at [50]:
…where the 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.
The Full Court further found at [57]-[58]:
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 … the application of the presumption must be consonant with the evidence in the case, not sit, as it does here, in an evidentiary vacuum.
The husband and wife in the present proceedings have lived together for 29 years. There is evidence from both the husband and the wife of reputation in favour of the parties having been married. In such circumstances the presumption arises and may be rebutted only with clear evidence showing that the parties had not married.
In Jacombe v Jacombe (1961) 105 CLR 355 at page 360 the High Court confirmed:
(P)roof that the parties lived together and were accepted as man and wife raised a presumption that they were validly married … which is rebuttable only by clear and cogent evidence, and … it is another element to be taken into account in considering whether or not the circumstances as a whole [suffice to prove the marriage].
The Full Court of this Court in Banh & Banh (1981) FLC 91-010 further confirmed the approach 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 appellant’s counsel submitted that there must be expert evidence proving the validity of the marriage. That submission is clearly wrong: see Sheludko v Sheludko (1972) V.R. 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 Leona 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.
The presumption was further discussed in Nygh & Kasey (supra) where Faulks DCJ considered that in conformity with Axon v Axon (1937) 59 CLR 395 there must be a ceremony of marriage. His Honour said:
[W]here there is no doubt that there had been a ceremony of marriage and in this case one which is validly recognised by the Catholic Church, the primary basis for the application of the presumption would apply.
Ultimately, Faulks DCJ did not rely upon the presumption however it operated in aid of his determination and not against it.
In Vordermaier & Vordermaier [2007] FamCA 1700 the parties participated in a marriage ceremony whilst resident at a refugee camp. There was no documentary evidence of the ceremony. Relevant to this case is the parties reliance on a document for travel to Australia which described the parties as “now married”. Burr J was satisfied that given the parties had lived together as husband and wife for nine years and presented themselves throughout cohabitation to the outside world as husband and wife a valid marriage existed between the parties. His Honour referred also to the authorities that clearly indicated that where the presumption arises, the onus of proof then falls on the person asserting the non-existence of the marriage to lead evidence supporting that fact. In Vordermaier (supra) no such evidence was led. The husband did not engage in the proceedings.
Conclusion
I accept the evidence of the wife that the parties shared a meal with their respective families at the father’s parents’ home in South East Asia at the beginning of their relationship. At that time the parties’ respective families accepted the parties as husband and wife. There was no official ceremony as such, but the event was meaningful and thereafter the parties were regarded by their families and their community as husband and wife. The evidence suggests that the parties were regarded as husband and wife on their journey to Australia and upon arrival.
I find that they lived that way for 29 years. They have presented themselves to the community as husband and wife who were married.
I find that the marriage is valid in accordance with the common law rules of private international law. In accordance with s 88E(1) of the Marriage Act the marriage should be recognised as a valid marriage in Australia.
I now turn to the Application for Divorce. I am satisfied that the parties were married. I am further satisfied that the parties separated in 2007. There has been an irretrievable breakdown of marriage. I therefore grant the Application for Divorce.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 26 May 2016.
Associate:
Date: 26 May 2016
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