Narumi & Lara

[2009] FamCA 199

FAMILY COURT OF AUSTRALIA

NARUMI & LARA [2009] FamCA 199

FAMILY LAW – MARRIAGE – NULLITY

Family Law Act 1975 (Cth)

APPLICANT: Ms Narumi

RESPONDENT: Mr Lara

FILE NUMBER:  MLC 8004 / 2008

DATE DELIVERED: 23 February 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 23 February 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms S. Dosanjh

SOLICITOR FOR THE APPLICANT: Hartleys Lawyers

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

Orders

1. The marriage solemnised at K Mosque in the State of South Australia on … February 2008 between the parties is declared to be absolutely null and void on the ground of duress.

2. All applications are dismissed and the proceedings are removed from the Active Pending Cases List.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:   MLC 8004 of 2008

MS NARUMI

Applicant

And

MR LARA

Respondent

REASONS FOR JUDGMENT

1. This is an application for a decree of nullity of the marriage celebrated between the parties in South Australia on … February 2008.  

2. The husband, who is the respondent to this application, has not appeared today.  He was in the environs of the Court when this matter first came before me on 2 February 2009, but left Court before the matter could be called on for hearing in the Judicial Duty List.  On that day, I adjourned all applications to me today and required the husband to attend Court, either with or without legal representation.  The order also provided that in the event that the husband did not attend on the adjourned date, the wife’s application proceed on an undefended basis.

3. The husband has not appeared today but has sworn an affidavit on 19 January 2009 which was filed on 20 January 2009 and which I have considered as part of the wife’s application. Counsel for the wife seeks to proceed on an undefended basis.  In all the circumstances, it is appropriate that I do so.

4. One of the difficulties in considering an application such as this on an undefended basis is that the facts on which the wife relies have not been challenged.  However, the husband has notice, not only of these proceedings but also of those facts, and has elected not to challenge them.   There is no apparent reason for my rejecting the wife’s evidence and in the circumstances, it is appropriate that I accept it.  In doing so, I emphasise that nothing in these reasons for judgment is to be taken as finding that the facts relied on apply generally to any group, culture or religion.   They are findings only with regard to the particular matter before me.

5. The wife is aged 24 years and the husband is slightly older.  The parties met in about 2007 and commenced cohabitation in approximately February 2008.  About one week after the commencement of their cohabitation, that is … February 2008, they married.  They separated on 8 June 2008 and have remained separate and apart since that time.  There is no child of their relationship and I accept the evidence of both of them that their marriage has broken down irretrievably.

6. The ground which is relied upon in support of this application is that the applicant wife entered into the marriage under duress.  Her affidavit of evidence‑in‑chief sworn on 1 September 2008 and filed on the following day details the evidence in support of the alleged duress. 

7. The wife is of Afghan culture and is an adherent of Islam.  On the evidence before me, that culture does not permit a woman who is separated but not either divorced or granted a decree of nullity marriage to leave the home without a chaperone for whatever purpose it may be.  She lives with her parents, her brother, sister and brother-in-law. 

8. I accept the wife’s evidence that her brother-in-law, father and brother have all physically assaulted her in the past and have been verbally abusive.  I accept that she is scared that they will hit her again and that someone will come and kill her.  I accept that her father has informed her that he is arranging for her cousin, who she was forced to marry, to come to Australia and kill her.  She is not allowed to work until she is either divorced or has obtained an annulment.  She was kept in her room for approximately one month and her parents are trying to control whatever she has, including any resources.  She is not allowed to study and is required to complete all the housework during the day and feels that she is a servant of the family.  All of that will continue while she is neither divorced nor the subject of an annulled marriage.

9. I accept her evidence that the lifestyle she is leading is causing her great stress.  She is unable to sleep at night and she feels trapped.  She has attempted suicide on three or four occasions over the last few years because of family pressure.

10. The evidence with respect to the duress consists initially of her father wanting her to marry her cousin who lives in Afghanistan.  That was in September 2006.  Her father organised a marriage certificate to be made in Afghanistan, which is said by her to be a fake marriage certificate after they became engaged.  I note that the certificate of the subject marriage includes the statement in the question of whether they are married as "NVM" which stands for "Not Validly Married".

11. When they arrived back in Australia, the applicant informed her father continuously that she did not want to marry the cousin.  However, during that time he hit her regularly, punched her, kicked her, slapped her, and sometimes would even hit her with wires.  This was because he wanted her to marry her cousin.  She suffered similar behaviour from her brother and brother-in-law.  She ultimately obtained intervention orders against her father, brother, and brother-in-law, but continued to refuse to marry her cousin.  When she continued that refusal, her father kicked her out of the house and she had nowhere to stay.  She lived on the street for one night.

12. At that time, her friend who is her current husband, telephoned her and said that she could live at his home with his mother and sister.  He is of Iranian descent.  As she had nowhere to stay, she moved in with the person who later became her husband.  After one week of being there, his family said that everyone was talking about them behind their back, that he is with a girl and there is no relationship between them, that she would have to leave or get married.  It was not acceptable to live like that in the culture.

13. Ultimately, they attended a mosque in Adelaide to get married.    This consent, she asserts, was not a real consent and it was given because,

    I had no choice.  I would otherwise have nowhere to live and would have been living on the streets.

14. None of the family members attended and after that marriage she was allowed to stay living with the husband and his family.  Her father also informed the husband's family that he will find them and kill them.

15. As I have said, the parties separated in June 2008.  The separation occurred because the applicant's younger brother passed away and her father would not allow her to come to the funeral.  To this day, she does not know where her younger brother is buried. 

16. There is considerable evidence to support the proposition that during their relationship, the applicant suffered intolerable violence to a very high degree perpetrated by the respondent, her husband.  He would call her a whore, he would break glasses and dishes, punch the door and yell, and would constantly say,

    Fuck this life.  It's all because of you that I had to leave Melbourne.

17. The question of whether the applicant entered into the marriage by duress is a question of fact.  In my view, the evidence in support of that proposition, that is, that it was entered into by duress, is overwhelmingly supportive of the application and accordingly a decree of nullity of marriage will issue on the ground of duress.

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

Associate: 

Date:  18 March 2009