MIZRAH & ELAHI

[2015] FamCA 1197

FAMILY COURT OF AUSTRALIA

MIZRAH & ELAHI [2015] FamCA 1197

FAMILY LAW – NULLITY – Where the matter was undefended – Where the wife seeks a declaration of nullity and invalidity in relation to the husband’s singles status certificate and possible marriage – Where the husband has been married four times – Where the wife asserts the husband is illegally married to his fourth wife by obtaining a single status certificate despite still being legally married to the wife – Where the husband is residing in Country F – Where no argument was developed which would provide a basis to make the declaration sought – Where the court has declined to make the declaration as sought by the wife.

FAMILY LAW – PROPERTY – Where it is probable the former matrimonial home was sold and the husband and his former wife shared the proceeds of sale – Where there is no evidence of there being assets held by the husband in Australia – Where the wife made little contribution to the acquisition, improvement and maintenance of that property – Where the wife is the exclusive carer of the young child of the marriage and receives no child support or maintenance from the husband – Where the wife is entitled to an award of 30 percent of the gross sale price of the former matrimonial home.

FAMILY LAW – SPOUSE MAINTENANCE – Where the wife has demonstrated a need for spouse maintenance – Where the wife has no income – Order made in the wife’s favour.

FAMILY LAW – COSTS – Order made for costs in the wife’s favour on a party/party basis.

Family Law Act 1975 (Cth)

Australian Passports Act 2005 (Cth)
Births, Deaths & Marriages Registration Act 1995 (NSW)
Family Law Act 1975 (Cth)
Marriage Act 1961 (Cth)

APPLICANT: Ms Mizrah

RESPONDENT: Mr Elahi

FILE NUMBER: SYC 4276 of 2014

DATE DELIVERED: 23 December 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 1 May 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Australian Legal

SOLICITOR FOR THE RESPONDENT: Ark Law

Orders

1. Ms Mizrah have parental responsibility for the child of the marriage B born … 2011 (“the child”) and the child live with the mother.

2. Pursuant to s 79 Family Law Act 1975 (Cth) within 28 days the husband pay to the wife the sum of $160,000.

3. The husband pay to the wife by way of spousal maintenance the sum of $757 per week, the first payment to be within 7 days.

4. The wife’s application for a child maintenance order is dismissed.

5. The wife be permitted to apply for a passport for the child B born … 2011 without the consent of the husband.

6. Pursuant to s 65Y(2) of the Family Law Act 1975 (Cth), the wife shall be entitled to travel overseas with the child without the consent of the husband.

7. The applications by the wife for declarations for nullity and invalidity in relation to the respondent single status certificate issued on 6 March 2014 and the husband’s possible marriage to Ms C is dismissed.

8. The husband pay the wife’s costs of these proceedings on a party/party basis as agreed or assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mizrah & Elahi 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 SYDNEY

FILE NUMBER: SYC 4276 of 2014

Ms Mizrah

Applicant

And

Mr Elahi

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This matter proceeded on an undefended basis. The wife seeks orders with respect to parenting, property and maintenance. The applicant wife also seeks a declaration of nullity and invalidity in relation to the respondent’s single status certificate issued on 6 March 2014 and the husband’s possible marriage to Ms C.

2. The respondent husband has not participated in these proceedings. He has been married four times. The wife is his third wife.

3. The wife asserts that he is illegally married to his fourth wife by obtaining a Single Status Certificate in Australia despite still being legally married to the wife.

4. It is understood that the husband is currently residing in Country F.

5. On 6 November 2014 orders were made by the registrar for substituted service on the husband. On 10 December 2014 the registrar noted that the documents had been served in accordance with substituted service and transferred the wife’s application to the duty list on 16 March 2015. On that day the matter was set down for a final hearing.

APPLICATIONS

1. The full text of the applications which the wife are contained in Schedule 1.

SHORT HISTORY

1. The parties were married in Country D in 2010. After the marriage the parties lived with the wife’s parents.

2. The husband sponsored the wife to come to Australia as his spouse and she arrived on 17 February 2011. The wife asserts that initially whilst overseas the husband treated her “nicely”, but on arrival to Australia he was abusive towards her.

3. After arriving in Australia, the wife lived with the husband in his house at Perth. The parties then relocated twice; once to Darwin for the husband’s employment and then Sydney (first at the husband’s parents’ home and then in rented accommodation).

4. In 2011 the wife says that the husband’s ex-wife, Ms E, demanded that he separate with the wife and transfer to Ms E the husband’s house in Perth. The wife contends that from that point in time the husband “started living a double live with both his ex-wife” and the wife.

5. When the wife was six months pregnant with the child of the marriage the husband’s extended family attempted to force her to return to Country D and verbally abused her. The wife was not able to sleep and was crying all the time. The wife says she begged the husband not to leave her. Prior to the birth of the parties’ child, the wife sought refuge at the Samaritan House of the Salvation Army because of threats against her by the husband, his ex-wife and his parents.

6. The wife returned to the husband. On 10 October 2011 the wife asked the husband to assist her to set up a bank account and obtain photo ID but the husband refused. At this time the husband pushed the wife to the door of his house and told her to leave before he called the police. The wife again sought refuge at the Salvation Army Samaritan House

7. The parties’ only child, B (“the child”) was born in 2011 and is currently 4 years old. After the birth the wife telephoned the husband and invited him to see the child but the husband did not answer and did not come to see his child.  The husband also refused to sign the child’s birth certificate.

8. The wife contends that shortly after the birth of the child the husband started questioning the legitimacy of the child, denied parenthood, and demanded parentage testing. In January 2013 DNA testing confirmed the husband was the father of the child. The wife asserts that despite these results, the husband has “neglected” both the child and the wife and refused to support them financially and emotionally.

9. From January 2013 the wife received nasty threatening and abuse messages from the husband’s ex-wife and children.

10. In July 2013 the husband threatened the wife and forced her to sign religious divorce documents. He took the wife to a cleric and the wife asserts the husband said to her “if you do not sign I will not let you travel to [Country D] to see your family’.

11. On 24 July 2013 a religious Divorce Certificate was issued. On this date the husband disappeared. The wife says she did not know his whereabouts.

12. On 2 December 2013 the wife became aware that the husband sold the former matrimonial home in Western Australia for $535,000. She says that the husband and his ex-wife, a Ms E collected the proceeds of sale without informing the wife as to the transaction.

13. In March 2014 the wife says she became aware that the husband had married in Country F without having divorced the wife in Australia.

14. In October/November 2014 the husband briefly returned to Australia. The wife attempted to serve upon the husband a demand for unpaid child support and family court documents. The husband evaded service and returned to Country F.

15. The wife also says that the husband has used the proceeds of sale of the former matrimonial home on “pleasures” and travel with his new wife.

16. The wife says the husband is a professional who has been employed by large companies in Australia. The wife estimates his income has been between $80,000 to $125,000.

THE APPROACH IN CHILDREN’S CASES

1. The objects of Part VII Family Law Act 1975 (Cth) (“the Act”) are to ensure that the best interests of children are met by:

   (a)  ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and      

   (b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)  ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)  ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children

2. The principles underlying those objects (unless contrary to a child’s best interests) are:

   (a)  children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)  parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)  parents should agree about the future parenting of their children; and

   (e)  children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. Section 60CA of the Act provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

4. Section 60CC of the Act sets out those matters which a court must consider in determining what is in the child’s best interests.

STATUTORY CONSIDERATIONS

1. Many of the statutory considerations in s 60Cc(2) and (3) of the Act have no meaningful relevance in this case.

2. The child has only ever had a relationship with her mother.

3. The husband is currently residing overseas and has made no attempt to communicate with or spend time with the child nor has he taken any steps to participate in making any decisions in relation to the child and has not participated in these proceedings.

4. As set out above, the wife was subject to much verbal abuse from the husband. This included forcing the wife into signing Sharia divorce documents, removing the wife from his home and threatening to prevent her from returning to Country D to visit her family. The wife was also subject to verbal threats and taunts from the paternal family.

1. The husband has failed to pay child support payable by him to the wife. The wife has received a total of $9 in child support payments.

1. I conclude that it is in the best interests of the child to make an order for parental responsibility in favour of the wife and an order that the child live with the wife.

1. The mother has sought to be permitted to apply for passports for the child without the consent of the father and although it may not be necessary given that an order has been made granting the mother parental responsibility (see s11(1)(a) Australian Passports Act 2005 (Cth)), for more abundant caution, I am prepared to make an order that may assist the mother in obtaining a passport for the child.

2. Subsection 65Y(1) of the Act is in the following terms:

   If a parenting order to which this subdivision applies is in force, a person who was a party to the proceedings in which the order was made.....must not take or send the child concerned from Australia to a place outside Australia except as permitted by subsection (2).

3. The wife has applied for an order under s 65Y(2) of the Act to entitle her to travel overseas with the child without the consent of the father.

4. In this case I will be making an order in favour of the wife who is a party to the proceedings. Even though the parenting orders that are made are totally in her favour, subsection 65Y(1) is technically enlivened and the wife would be prevented from travelling overseas with the child. The wife has family in Country D. It is not in the child’s best interest to restrict the mother’s involvement with the child. I will make the order as sought by the wife to enable her to have that freedom of movement with the child.

APPROACH IN PROPERTY CASES

1. In this matter my task is to:

   37.1.Identify according to ordinary common law and equitable principles and then value the property, assets, financial resources and liabilities of the parties;

   37.2.Determine whether it is just and equitable to make an order altering those interests and if so;

   37.2.1.Identify relevant contributions and assess them;

   37.2.2.Consider relevant matters referred to in Section 79(4)(d) – (g) of the Act;

   37.3.Determine what order adjusting the property, assets and liabilities of the parties is just and equitable.

2. As can be seen from Schedule 1, the wife makes an application pursuant to s 79 of the Act for 75 percent of the sum of $535,000 and seemingly a further sum of $215,000. She seeks a superannuation splitting order against unknown and unnamed trustees of any superannuation fund of which the husband might possibly be a member. She also asks the court to make some spousal maintenance order and she seeks a child maintenance order of an unspecified sum.

3. The parties commenced to live together on 13 January 2010 and seemed to have lived together until about July 2013, a period of three and a half years.

4. There was one child of the marriage born in 2011.

5. The only asset that is identified by the applicant is the former home in Western Australia which the parties lived for a time in 2011. The wife attaches to her affidavit a document entitled “I Property Sales report” which indicates that the property at G Street, Suburb H, Western Australia, was sold on 2 December 2013 for $535,000. The affidavit does not however say that that property was the former home of the husband although I infer that it was and that property was owned by the husband prior to the marriage. The only information I have about that property is that in December 2013 (that is about six months after the separation) the wife became aware that the husband had sold the former matrimonial home for $535,000. The wife was aware in 2011 that the husband’s former wife contended that she was entitled to the equity in that property and the wife thinks Ms E shared in the proceeds of the sale.

6. There is no evidence that I have that there is currently any assets held by the husband in Australia. The evidence of the wife, so far as it exists, is as to a sale price of the Suburb H property. No title search was done to establish whether or not the property was encumbered at the time of sale. I do not know whether the husband’s former wife was a registered proprietor of that property.

7. On the information provided, the wife made little contribution to the acquisition, conservation and maintenance of the Perth property. There is some evidence that that property was acquired during the husband’s second marriage and that there are claims made by the wife of that marriage against this property.

8. Any entitlement the wife had under s 79 would flow primarily from s 79(4)(d) – (g) considerations and those considerations would be of some weight.

9. In relation to other evidence in respect of her financial circumstances, the wife says that since early December 2013 she has received no child support or maintenance from the husband.

10. The wife has filed a financial statement. That evidence details the wife’s parlous financial state. Her sole source of income is Government benefits. She clearly lives within those benefits but in a very frugal and impoverish way. Her reasonable needs significantly exceed her Government benefits. She has some furniture and a motor vehicle of little value.

11. The husband has not participated in the proceedings and therefore the court has no information from him whatsoever as to what are his financial circumstances.

12. There is no basis upon which any order could be made for splitting superannuation as procedural fairness is unable to be afforded to unnamed and unknown trustees.

13. It is likely that the wife will never be able to enforce any order the court makes but that is not a reason for not making an order on the evidence that is available. I find the wife is entitled to an award of 30 percent of the gross sale price of the matrimonial home in the sum of $535,000, which sum is an amount of $160,000.

SPOUSAL MAINTENANCE

1. Based on the information in the wife’s financial statement, she has demonstrated a need for spousal maintenance. The statement by the wife at item 32 that the total of “all other” expenditure is $150 per week is inconsistent with what she says at Part N where she sets out that her total of all other expenditure is in fact $360 per week and itemises that expenditure. None of that itemisation could be considered to be inflated. The wife’s overall reasonable weekly expenses are $757 per week but she obviously is living very frugally given she does not have the income to meet those reasonable needs. The wife has no income that can be taken into account in the context of a spousal maintenance application given that all her income is as a result of Government benefits.

2. Accordingly it is appropriate that an order be made in the wife’s favour for spousal maintenance in the sum of $757 per week.

CHILD MAINTENANCE APPLICATION UNDER THE FAMILY LAW ACT

1. No submissions were made which would indicate whether or not an order under the Act for child maintenance was appropriate in the circumstances of this case. In any event, the wife’s financial statement provides no indication as to what the wife’s weekly costs for the child are and in those circumstances I am unable to consider further any application for an order for child maintenance.

NULLITY

1. The wife seeks an order that the respondent’s single status certificate issued on 6 March 2014 be declared null and void.

2. The wife annexes a copy of that certificate to her affidavit filed 11 July 2014. The certificate is partly obscured by the manner in which it has been photocopied but it appears to be a certificate by the Registrar under the Births, Deaths & Marriages Registration Act 1995 (NSW) certifying that a search had been made of the records of marriage held by the Registrar from 24 July 2013 to 6 March 2014 in the husband’s name and that no marriage registration occurring in New South Wales had been found. The wife asserts that the husband committed an act of fraud in order to obtain this certificate without “officially divorcing me under Australian law”. The wife did sign papers in July 2013 she says because threats were made to her in order to coerce her into signing those papers for a “[Religious] Law divorce”.

3. The certificate on its face contains no misstatement of fact apart from its title which implies that the husband was single during the period of time the certificate spans.

4. The wife did not develop an argument as to the basis upon which I could make the declaration sought or what purpose making that declaration might achieve. I accordingly decline to make the declaration sought.

5. The wife also sought the court declare as a nullity any marriage ceremony that the husband may have gone through on or about the end of March 2014 in Country F with Ms C. The wife’s application is said to be based upon s 23 of the Marriage Act 1961 (Cth) which deals with the grounds on which marriages are void. The correct section of the Marriage Act in the circumstances of this case is s 23B. It provides that a marriage is void where either of the parties is, at the time of the marriage, lawfully married to some other person.

1. The wife did not explain the basis upon which the court could make the declaration that was sought in circumstances where:

   58.1.Ms C had not been joined as a party to the proceedings;

   58.2.Whatever ceremony took place, happened in an overseas country and that the participants in that ceremony continue to reside in an overseas country;

   58.3.Any subsequent ceremony could not affect the status of the wife’s marriage to the husband in Australia.

2. I decline to make any order as sought by the wife seeking a declaration of nullity of the husband’s fourth marriage.

COSTS

1. The wife seeks an order for costs against the husband. Given that the husband failed to participate in the proceedings, I am prepared to make an order for costs in the wife’s favour on a party/party basis as agreed or assessed.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 23 December 2015.

Associate: 

Date:  23.12.2015

SCHEDULE 1

Parental orders

1. That Ms Mizrah, the mother, to have full parental responsibility and custody of the child B born … 2011 (herein after “the child”).

2. That the status quo be reserved and the child continues to live with the mother.

3. That pursuant to Section 11 of the Passports Act 2005 (Cth), the mother be permitted to apply for passports for the child without the consent of the father.

4. That pursuant to Section 65Y(2) of the Family Law Act 1975 (Cth), the mother shall be entitled to travel overseas with the child without the consent of the father.

Financial and Property Orders

1. That pursuant to Section 79 of the Family Law Act 1975 (Cth), all assets of the parties to the marriage “the parties” whether real, personal, chattel or cash in the bank “the parties’ assets” be divided between the parties in shares of 75 per cent to the wife and 25 per cent to the husband. That includes but not limited top to the proceeds of the sale of the family home known as G Street, Suburb H WA …, Folio Identifier … on Plan … “the matrimonial home” that was sold by the respondent on 2^nd December 2012 for the sum of $535,000.00.

2. That pursuant to Section 79 of the Family Law Act 1975 (Cth) the respondent pays the applicant the sum of $215,000.00 within 28 days of the making of these orders as fair and equitable share of the mother and the child from the proceeds of the sale of the matrimonial home by the respondent husband.

Superannuation Splitting Orders pursuant to Part VIIIB of the Family Law Legislation Amendment (Superannuation) Act 2001

1. That pursuant to Part VIIIB of the Family Law Legislation Amendment (Superannuation) Act 2001 the applicant wife be entitled to the full amount of superannuation funds held in the name of the respondent husband Mr Elahi (herein after “superannuation funds”).

2. That the Trustees of superannuation funds held in the name of the respondent husband Mr Elahi be ordered and direct to do everything necessary to transfer the superannuation funds into the name of the applicant wife Ms Mizrah.

Null & Void

1. That the respondent’s single status certificate issued on 06 March 2014 be declare null and void.

2. That pursuant to Section 23 of the Marriage Act 1961 the respondent’s illegal marriage to Ms C be declare null and void.

Child & Spouse Maintenance

1. That pursuant to Section 66G of the Family Law Act 1975 (Cth) the respondent pays child support/maintenance as assessed by the Department of Human Services/Child Support.

2. That pursuant to Sections 72 and 74 of the Family Law Act 1975 (Cth) the respondent pays spouse maintenance to the applicant wife as assessed.

Legal costs

1. Costs pursuant to Part 19.4 of the Family Law Rules 2004.

2. That the respondent husband pays the applicant’s legal costs within 28 days from the making of these orders.

3. Other orders the court sees just and equitable.