Nadu and Vedru

[2008] FamCA 435

FAMILY COURT OF AUSTRALIA

NADU & VEDRU [2008] FamCA 435

FAMILY LAW – MARRIAGE – Nullity – Duress

APPLICANT: Ms Nadu

RESPONDENT: Mr Vedru

FILE NUMBER: PAC 3467 of 2007

DATE DELIVERED: 31 March 2008

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: STEVENSON J

HEARING DATE:

3 August 2007

21 August 2007

9 November 2007
18 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Alexander

SOLICITOR FOR THE APPLICANT: Mr Gnanakaran, Gnanakaran Solicitors

FOR THE RESPONDENT: In person

Orders

1. That the application of the husband filed on 20 June 2007 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3467 of 2007

MS NADU

Applicant

And

MR VEDRU

Respondent

REASONS FOR JUDGMENT

THE PROCEEDINGS

1. By an application filed on 20 June 2007 Ms Nadu (“the wife”) sought a Decree of Nullity of a marriage celebrated in June 2006 with Mr Vedru (“the husband”). He did not oppose the relief sought but disputed several factual assertions made by the applicant to support her claim. The wife contended that the marriage was void, as her consent was obtained by duress within the meaning of section 23B(1)(d)(i) of the Marriage Act (1961). If she can establish that her consent to the marriage was not a real consent, because it was obtained by duress, she is entitled to a Decree of Nullity pursuant to section 51 of the Family Law Act.

BACKGROUND

1. The wife was born in April 1987 in Sri Lanka and is now 21 years old.  The husband was born in June 1987, also in Sri Lanka, and is now 20 years old.

2. The parties met in about November 2005 and began a relationship as boyfriend and girlfriend.  It was common ground that the relationship did not meet with the approval of either of their families. 

3. According to the wife, the husband first raised the prospect of marriage with her in May 2006.  She said that, during a conversation about her providing him with financial support, he said:  “Instead of my having to ask you for money like this, why don’t you give me your bankcard.  After all we are close to each other and I want to register you as my wife.”  She replied:  “I do not want that.  I am not ready for it.  I will finish my studies and get a good job and then we might think about marriage.” 

4. According to the wife, she and the husband again discussed the subject of marriage in May 2006 and the following conversation occurred:  He said: “your father will never let us be together.  Why don’t we register a marriage and we can be together?  I went and got a form.’”  She saw that he had already filled out a Notice of Intention to Marry.  She said:  “Why did you?”  and he said:  “We talked about this.  Why won’t you get married?”  She said:  “I never agreed”.   He said “You are in love with me.  I am not going to change.  Why not marry me now?”  She said:  “My dad thinks we are too young and we should concentrate on our studies and getting a good job. I am sure if we show him we are capable of fulfilling our goals, he will agree in the future”.  He said:  “Your dad has too much influence on you.  If it was not for him, you would do what I want.  He is causing me problems.  If you do not sign, I will kill him.”  The wife said that she did not think that the husband would harm her father but she believed that he would inform her parents of their relationship. 

5. The wife signed the Notice of Intention to Marry on 19 May 2006.  She said that the husband then raised the prospect of her opening a new bank account, into which she would deposit her Youth Allowance.  Previously, this benefit was paid into a Commonwealth Bank account for which her father held a card.  When she said that she was unwilling to open a new account, the husband said:  “You should open a separate account and the Youth Allowance payment should be directed to that account”.  She said:  “I am not willing to open a new account”.  He said:  “I will tell everyone that you have signed the Notice of Intention to Marry and show them the photographs we have taken together”. 

6. The wife said that she was afraid that her parents would come to know about the relationship.  This prospect was of great concern to her, as it is uncommon in their community for a boy and girl to go out together as a couple before marriage.  There were photographs of the parties together, kissing each other.  The wife said that these photographs “had the potential to damage [her] reputation in the community”.

7. A St George Bank account in the name of the wife was opened on 24 May 2006.  The address shown was that of the husband.  The parties gave conflicting evidence about the operation of this account, which I will consider below.

8. The wife maintained that the husband again said that he would kill her father in early June 2006.  She claimed that he continued to “threaten me with the photographs”.  At this stage, she had formed the view that he “might be at least physically aggressive towards my father”.

9. The wife said that the husband told her that she “must attend the Registration of Marriages on the […] of June”.  She claimed that he said to her:  “If you do not do so, you will regret the consequences”.  She said to him:  “I am not happy about going through the marriage.  I do not want to get married and I am scared about my parents knowing about it”. 

10. She said that the husband then became very angry and took her to the home of a friend at ….  They had the following conversation:

    He said: “I really love you.  I want to get married.  I bought you a dress.

    She said:  “I know you want to get married.  I am not ready for this.  I want to wait a bit longer.”

    He then locked the door and stood over her, saying “you sit right there.  You are not going anywhere until you agree to marry me”.  She stood up but he pushed her back on to a sofa two or three times.  He then slapped her on the left cheek.  She said:  “It is getting late.  I want to go home.  My parents will be worried.”  He said:  “you are not going home until you agree to turn up on Monday at […] Station at 9 o’clock”. 

11. During the following weekend he rang her mobile telephone on several occasions.  He said to her:  “Don’t dare think about not coming on Monday.  I will come and get you.  If you don’t come I will show photographs to your parents.”

12. The marriage took place in June 2006.  According to the wife, there was only one person present who was known to her.  She gave this account of the ceremony:

    “[The husband] told his friends at the wedding to take photographs.  Photos were taken of us signing the register.  [The husband] pulled me to him and kissed me.  I put my arms around him.  The photos made me think that he wanted evidence for immigration purposes.”

    After the marriage she returned to her parents’ home and did not tell them what had occurred.  There was no evidence in the case for the wife that the husband had any need to enter into the marriage for some purpose related to migration.

13. The parties did not live together following the ceremony.  The husband said that he saw the wife only twice after the ceremony of marriage.  He said that, on 21 June 2006, she told him that she wanted to stay with him and that she was going to India.  He then booked a hotel room and she stayed with him on one occasion before she left for India on 7 July 2006.  The wife denied that she ever stayed overnight with the husband. 

14. It was common ground that the marriage was never consummated.  It was also agreed that there has been practically no communication between the parties since the wife left for India on 7 July 2006. 

15. There was considerable focus in the evidence on the operation of the St George Bank account in the name of the wife.  She claimed that the husband regularly made withdrawals from the account, whereas he maintained that he earned sufficient money from two jobs to support himself.  He said that he withdrew money from the St George account only to contribute to the cost of a mobile telephone used by the wife. 

16. The husband conceded that he had a card for the wife’s St George account.  He said that she told him to take the card because her parents would cause trouble for her if they found it in her possession.

17. The hsuband said that the parties went together to a Centrelink office before the wife left for India on 7 July 2006.  They were informed that her Youth Allowance would stop if she failed to return to Australia no later than 3 months of her departure.

18. The statements for the St George Bank account were in evidence as exhibit 1.  Fortnightly deposits of $334.70 labelled “CTR Link YTHALL” appear between 25 May 2006 and 25 August 2006 and there was a similarly titled deposit of $262.98 on 14 September 2006.

19. The wife was out of Australia between 7 July 2006 and 1 March 2007.  The St George Bank account seems to have been inoperative after 23 November 2006.  There were various debits to the account after the wife left Australia in July 2006, which could only have been made by the husband.  For example, there was an ATM withdrawal of $340 at Seven Hills on 20 July 2007.

20. Curiously there was a debit titled “ATM withdrawal” of $20 on 7 July 2006 at Sydney International Airport.  This day was the date of the wife’s departure for India.  She gave no explanation for this withdrawal.  Interestingly, there was also a debit to the account on 22 June 2006 entitled “[…] Motel, East Sydney”.  This debit would tend to suggest that the husband’s evidence about the parties’ spending one night together in a hotel is likely to be correct.

21. It thus seems to me that neither party gave entirely accurate evidence as to the operation of the St George account in the name of the wife.  If this material was intended by the wife to persuade me that the husband was not a witness of truth, I am not so satisfied.

The Meaning of “Duress”

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

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

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

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

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

4. Watson J said also:

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

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

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

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

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

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

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

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

The Evidence of the wife

1. The case for the wife, taken at its highest, is set out in her affidavit sworn on 2 November 2007.  The alleged duress exerted upon her can be summarised as follows:

   ·threats to reveal the relationship to her parents

   ·threats to kill her father

   ·displays of anger at her reluctance to enter into the marriage

   ·a threat that she would “regret the consequences” if she did not attend the Registry Office in June 2006

The Evidence of the husband

1. The husband essentially suggested that the parties had a relationship which they both wanted but which met with disapproval from each of their families.  It did not seem that the wife seriously disputed the mutuality of the relationship prior to March 2006.

2. The husband maintained that the wife told him to decide between her and his parents, which resulted in his leaving their home in April 2006 or thereabouts.  He strongly denied making threats to kill her father.  He maintained that she asked him to marry her and told him, inter alia:

   “I’ve got to go along with my mother to India because she is not feeling well.  Don’t worry about anything before I go to India we’ll marry together so we’ll be safe.  And I’ve got your sim with me so that I can make a call whenever I need and I’ve changed the Youth Allowance account in St George Bank and keep my card with you that will be helpful to pay the mobile bill.”

   He said that she returned from India and commenced these proceedings, for reasons which he did not understand.

Consideration and Conclusion

1. It seems to me to be useful to consider whether the evidence of the wife, taken at its highest, would be sufficient to ground the relief which she seeks.  If I conclude that her evidence does not satisfy the test set out above, it is unnecessary for me to attempt to resolve the factual disputes between the parties.

2. I am of the view that the whole of the evidence of the wife, assuming that it is entirely accurate, is incapable of satisfying the relevant test.  I am not satisfied that her consent to the marriage arose from coercion or duress.

3. It seems most odd, as a matter of logic, that the wife would choose to deal with the husband’s alleged threats to reveal their relationship by entering into a marriage with him.  The relationship thereby acquired an official and legal status, as opposed to a liaison which could be ended at any time.

4. On the wife’s own evidence, she did not treat seriously the husband’s alleged threats to kill her father.  At its highest, she feared that he “may at least be physically aggressive” toward her father.  I am far from persuaded that this belief would have impacted on her capacity to give a real consent to the marriage.

5. The alleged anger of the husband, at her supposed unwillingness to enter into the marriage, was demonstrated physically in the form of three or four pushes, to which the wife retaliated.  She was also subjected to verbal abuse, or threats, on her version of events. The physical altercation occurred at least some days prior to the marriage ceremony.  The threat that she would “regret the consequences”, if she did not attend the Registry Office in June 2006, was in the vaguest possible terms.

6. Taking all of these allegations at their highest and collectively, I am of the view that the wife’s evidence does not satisfy the relevant test.  In my view she and the husband had a relationship into which they entered freely, despite their appreciation of the disapproval of their families.  I consider that the wife could have avoided entering into the marriage had she chose to do so.  It was simply a matter of failing to attend the Registry Office in June 2006.

7. When I have regard to the evidence of the husband, I am persuaded that his account of the parties’ relationship is more credible.  I note that he was cross-examined by experienced counsel, whereas the evidence of the wife was untested.  In my assessment, he presented a convincing picture of a young couple who wanted to be together, despite familial and cultural pressures.

8. For all of these reasons, I am far from convinced that the wife’s consent to the marriage was obtained by duress.  It may well have been that she regretted entering into the marriage because of the likely or actual reaction of her parents and community but that is not the test.  I thus dismiss her application for a Decree of Nullity.

I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:     

Date:              31 March 2008