Lute and Ingram

[2009] FamCA 503

FAMILY COURT OF AUSTRALIA

LUTE & INGRAM [2009] FamCA 503

FAMILY LAW – NULLITY – fraud – grounds not made out

Family Law Act 1975 (Cth)

APPLICANT: Ms Lute

RESPONDENT: Mr Ingram

FILE NUMBER: DGC 4182 of 2008

DATE DELIVERED: 27 May 2009

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 27 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE APPLICANT: NA

COUNSEL FOR THE RESPONDENT: Mr D. Barry

SOLICITOR FOR THE RESPONDENT: De Silva Hebron

Orders

1. That the application for a Decree of Nullity filed on 15 April 2009 be dismissed.

2. That there be no order for costs.

IT IS CERTIFIED

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including solicitor appearing as counsel.

IT IS NOTED that publication of this judgment under the pseudonym Lute & Ingram is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 4182 of 2008

MS LUTE

Applicant

And

MR INGRAM

Respondent

REASONS FOR JUDGMENT

1. Before the court is an application for nullity brought by Ms Lute against Mr Ingram.  The history, recorded on the file, needs to be summarised. 

2. On 4 December 2008, in the Federal Magistrates' Court, the applicant filed an application in which she sought parenting orders in respect of the parties' two children, being a daughter, born in September 2004, and a son, born in March 2007.  She sought that passports be issued to allow the children to travel with her to Cambodia for a period and that service of the application and affidavits on the respondent be dispensed with.

3. In support of that application, she filed an affidavit affirmed on 4 December 2008.  In that, she deposed to having married the respondent on in October 2004 and to them separating in July 2006.  When she affirmed that application she was 28; the respondent was 33.  She alleged she had been subjected to violence and financial misconduct and made a number of allegations about the respondent's behaviour and alcohol abuse.  She deposed that his whereabouts were unknown to her. 

4. On 22 December 2008, on an ex-parte basis, Phipps FM made orders which allowed passports to issue for the two children and allowed them to travel to Cambodia.  He dispensed with service on the respondent and the matter was otherwise adjourned to 16 February 2009.  There may have been a typing error in the order because the matter appears to have next been listed before Turner FM on 16 March 2009.  On that occasion, the applicant did not appear and the balance of her application was dismissed. 

5. On 25 February 2009, in the Federal Magistrates' Court in Darwin, the respondent to this application filed an application for divorce.  In that application he refers to only one child of the marriage, being the daughter.  He dated the parties’ physical separation at 10 July 2006, but the end of the marriage at 5 July 2007.  Given that, on this account, the son was born four months prior to the end of the marriage, the omission of him as a child of the marriage in the divorce application is rather surprising.  The respondent deposed to last having had contact with his daughter in March 2008, by which time the parties’ son would have been one.

6. The divorce was personally served on the applicant in these proceedings on 18 March.  On 14 April 2009, the applicant in these proceedings filed a response to the divorce application in Darwin, in which she complained that the applicant for divorce did not mention the existence of their second child and that, contrary to his assertion in the application, he was not paying the assessed child support of $27 a month.  Nothing in that response took issue with the fact or date of the marriage. 

7. The following day, on 15 April 2009, a solicitor acting for the applicant filed this application for a decree of nullity in the Federal Magistrates' Court in Dandenong.  The applicant has told me this morning that she was granted legal aid to bring the application.

8. The ground on which the applicant relies is that her consent to the marriage was obtained by fraud or duress and was thus not a real consent.  She complains that she now knows or believes that the respondent was in a relationship with another woman when they married and even then had plans to marry the other woman at some point in the future; that she was used by him to obtain Australian citizenship; and that he turned out to be violent, disrespectful and financially irresponsible. She deposes that in her culture a woman who is divorced is disadvantaged; that to be divorced, as sought by the applicant in the divorce application in Darwin, would adversely affect her future and the future of her children.

9. On 20 May 2009 the respondent filed a response to the application for a decree of nullity in which he sought that it be dismissed and he be awarded costs.  He denied the various allegations made by the applicant in her affidavit, denied having ever been married to anyone other than the applicant and deposed to having entered the marriage in good faith.  He deposed to a number of marital problems which, he deposed, were attributable to pressure from the applicant's parents and said that he never used duress or fraud to pressure the applicant to marry him.

10. As I have explained to the applicant through the interpreter, under Australian law, fraud, in this context, has a limited scope.  It is confined to fraud about the identity of the other party or the nature of the ceremony; it does not relate to the motive of the other party in entering into the marriage or particular qualities that, it transpired, the other party exhibited.  It is not submitted that the applicant was forced to marry against her will, that she did not know the ceremony she went through in October 2004 was a ceremony of marriage, or that Mr Ingram is anyone other than the person he says he is.  Her real complaint is that he turned out to be, in her terms, a most unsatisfactory husband.  Under Australian law, that is not grounds to annul the marriage.

11. I should add that on 20 April 2009, in Darwin, the federal magistrate adjourned the respondent’s divorce application to 29 June 2009.  While not spelt out in any judgment on the file, it is clear that was done to allow this application to be heard. 

12. I find that the court has no option but to dismiss the application for a decree of nullity.  That means the divorce application can proceed in Darwin on 29 June 2009.  The applicant in this case has filed a response to that application which will be considered by the federal magistrate. On its face, nothing in her response goes to the grounds on which the applicant relies for a divorce.  There may be a question as to whether appropriate arrangements in all the circumstances have been made for the parties' children.  That will be a matter to be considered by the federal magistrate.

13. The response filed by the respondent sought that the applicant pay his costs.  I am informed that the costs of advice, preparation of the documents which have been filed and the appearance today would be about $1400.  Having regard to the need to use an interpreter for the respondent, as has been necessary for the applicant, that is not surprising.  The solicitor for the respondent has expressed some sympathy with the applicant's position and initially would seek that the costs be paid by the solicitor who filed the application on her behalf. 

14. That solicitor went off the record on 6 May.  It is clear that the applicant, as she concedes, had failed to contact or respond to material that was sent to her by that solicitor.  She attributed that to a misunderstanding, or a mix-up, by the lay people who were assisting her, but it is highly probable that the firm, Robert Halliday and Associates, went off the record because they could not obtain instructions.  Indeed, if they advised Legal Aid that the applicant had failed to respond to their correspondence, they may have been required by Legal Aid to cease to act.  As I said when summarising the history of the matter, on another occasion the applicant failed to press an application. From her perspective she may have had good reason to do so and she is in a vulnerable position, as her English is not yet good, her financial position is poor and she is bringing up two children on her own.

15. While it would be possible for the court to adjourn the costs application and serve Robert Halliday and Associates with notice of it, I am not satisfied, in the circumstances of this case, that that is likely to be a productive way to proceed.  The applicant's account of the circumstances in which she comes to be here today, unrepresented, makes it probable the court would not reach the threshold in relation to any order for costs against a legal practitioner. 

16. That means the costs application is made against the applicant.  She is not in paid employment, but is studying English.  She hopes to obtain work in the aged care field.  She has told me the respondent does not recognise the second child as his, a reality borne out by his divorce application.  She has deposed that she has not received any child support from him, despite a minimum assessment of $27 per month.  For his part, he is employed as a truck driver and in receipt of very modest earnings.  The applicant's stance has resulted in him incurring legal expenses and he says he is entitled to be paid them.  He is not legally aided.

17. I take into account the factors set out in s 117(2A), which the court must take into account in considering an application for costs.  They include the financial circumstances of the parties, the conduct of the proceedings, whether a party is legally aided and whether one party has been entirely unsuccessful.  Despite the fact the applicant has been entirely unsuccessful, I am not satisfied that this is a matter in which the general rule that each party should pay their own costs should be varied and I will make no orders for costs.  The court's rulings will be transcribed and made available to the parties. I will certify for the appearance of a solicitor as counsel - that is Mr Barry - and the court will take out the orders.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Brown

Associate: 

Date:  15 June 2009