Parsa & Hamidi

Case [2023] FedCFamC1F 8

Federal Circuit and Family Court of Australia

(DIVISION 1)

Parsa & Hamidi [2023] FedCFamC1F 8

File number(s): PAC 948 of 2022
Judgment of: RIETHMULLER J
Date of judgment: 17 January 2023
Catchwords: FAMILY LAW – DIVORCE – Nullity – Where decree of nullity is sought – Where the applicant argues she was mistaken as to the nature of the ceremony performed, believing the religious ceremony performed was an Islamic betrothal (engagement) – Marriage Certificate issued and Notice of Intention to Marry completed on same day – Marriage not registered in accordance with State law – Parties never cohabitated or otherwise acted as husband and wife – Declaration of nullity made – Reasons to be forwarded to the Attorney-General’s Department  
Legislation:

Evidence Act 1995 (Cth) ss 183, 185

Family Law Act 1975 (Cth) ss 50, 113

Marriage Act 1961 (Cth) ss 6, 23B, 42, 45, 48, 50, 64, 67

Births, Deaths and Marriages Registration Act 1995 (NSW) ss 4, 33, 49

Cases cited:

AK v NC (2004) FLC 93-178; [2003] FamCA 1006

AS & AS [1999] FamCA 1131

Ford  v Stier [1895] UKLawRpPro 36; [1896] P 1

Garner & Lee [2011] FamCA 1000

Gregg v R [2020] NSWCCA 245

Kelly (orse Hyams) v Kelly (1932) 49 TLR 99

Mehta (orse Kohn) v Mehta [1945] 2 All ER 690

Najjarin v Houlayce (1991) FLC 92-246; [1991] FamCA 57

Ngo & Ngo [2010] FamCA 1053

Oliver (Deceased) & Oliver [2014] FamCA 57

Rabab & Rashad [2009] FamCA 69

Valier v Valier (orse Davis) (1925) 133 LT 830

Division: Division 1 First Instance
Number of paragraphs: 42
Date of hearing: 15 November 2022
Place: Parramatta
Solicitor for the Applicant: Oncu Lawyers Pty Ltd
The Respondent: Litigant in person (did not participate)

ORDERS

PAC 948 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS PARSA

Applicant
AND:

MR HAMIDI

Respondent

order made by:

RIETHMULLER J

DATE OF ORDER:

17 JANUARY 2023

THE COURT DECREES THAT:

1.The purported marriage between the parties entered into on 26 October 2019 is a nullity.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Parsa & Hamidi has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

RIETHMULLER J:

Introduction

  1. This is an application for a declaration that the marriage between the applicant and respondent which took…

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AGLC
Parsa & Hamidi [2023] FedCFamC1F 8
Case
[2023] FedCFamC1F 8
Decision Date

CaseChat Overview and Summary

In the matter of Parsa & Hamidi, the applicant, Ms Parsa, sought a declaration that her marriage to the respondent, Mr Hamidi, which took place in 2019, was invalid and therefore a nullity under Australian law. The couple had participated in a religious ceremony at Ms Parsa’s residence, officiated by an Imam of the Islamic faith, which Ms Parsa believed was not recognised as a legal marriage in Australia. The parties separated in January 2020, and the applicant filed her Application for Final Orders on 25 February 2022, which was subsequently transferred to Division 1 of the Court without hearing from the applicant or respondent. Despite attempts to locate the respondent, including an application for substituted service, the respondent remained uncontactable.

The primary legal issues before the Court were whether the marriage ceremony conducted by the Imam was legally binding in Australia and whether the substituted service orders complied with the requirements of the law. The Court had to determine whether the religious ceremony constituted a legal marriage under Australian law and whether the substituted service orders were validly obtained, considering the absence of direct contact with the respondent.

In addressing the validity of the marriage, the Court considered the applicant's affidavit and the certificate from the NSW Registry of Births, Deaths and Marriages, which confirmed that no marriage registration was found concerning Ms Parsa. The Court also examined the nature of the ceremony, which the applicant described as akin to an engagement. The Court concluded that the religious ceremony did not satisfy the requirements of a legal marriage under Australian law. Regarding the substituted service, the Court noted the steps taken by the applicant to locate the respondent and the orders made for substituted service, including the use of email, WhatsApp, and text message. The Court found that the substituted service complied with the relevant legal provisions, as the applicant had made reasonable efforts to contact the respondent.

The Court granted the applicant’s application for a declaration of nullity, finding that the marriage ceremony was not legally binding in Australia. Additionally, the Court upheld the substituted service orders as valid, given the efforts made to contact the respondent. The final orders included a declaration that the marriage was invalid and a dissolution of the marriage on the grounds of nullity.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for a declaration that the marriage between the applicant and respondent which took place in 2019 is invalid and therefore a nullity under Australian law. Background The parties met in late 2019, and a few weeks later they participated in a religious ceremony at the applicant’s residence where an Imam of the Islamic faith married the parties. The applicant believed the religious ceremony performed was an Islamic marriage ceremony akin to an engagement and would not be considered a legal marriage in Australia. The parties separated on 31 January 2020 and have not had contact since that time. The applicant has since re-partnered. The applicant filed her Application for Final Orders on 25 February 2022. On that same day, the application was administratively transferred by a registrar to Division 1 of this Court without hearing from the applicant or respondent, but personal service was unable to be effected upon the respondent. The application was listed before a registrar on 8 April 2022 where orders were made adjourning the matter as the applicant sought leave to issue subpoenas in an attempt to locate the respondent for the purpose of effecting service. Despite this order, no subpoena was issued by the applicant’s solicitors. On 1 September 2022 (the day before the next court event), the applicant filed an Application in a Proceeding seeking orders for substituted service. On 2 September 2022, a registrar directed that the applicant serve the Application for Final Orders and supporting affidavit filed 25 February 2022 on the respondent by forwarding them together with the Court orders made 8 April 2022 and 2 September 2022 to the respondent by email, and that a copy of the Court’s orders be forwarded to the respondent on WhatsApp and by text message. The substituted service orders made 2 September 2022 do not include any email or telephone numbers, however only one email address and one telephone number are referred to in the affidavit of the applicant’s solicitor filed 1 September 2022. These contact details were obtained by the solicitor of the applicant by telephoning a person said to be the respondent’s sister. There is no evidence as to how the solicitor came to know of the sister’s telephone number or her identity. The solicitor attested to having attended at the last known address of the respondent on a number of occasions and having left the documents at the home. Presumably some oral evidence was given before the registrar to satisfy the registrar of the identity of the person who provided the information, and that it accorded with contact details the applicant must have had from her relationship with the respondent in order to satisfy the registrar. On 15 November 2022, the applicant filed an affidavit of service annexing a copy of an email sent to the respondent by the applicant’s lawyers on 30 September 2022 at the email address set out in the affidavit filed 1 September 2022. The email attached a copy of the Application for Final Orders, the supporting affidavit filed 25 February 2022, and previous Court orders. Further annexed to the affidavit of service filed 15 November 2022 was a screenshot of a message sent to the respondent via WhatsApp, attaching a letter from the applicant’s lawyers. The screenshot indicated that this message had been “seen” by the respondent.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In this case the applicant’s occupation (that of a public servant), together with her age (29 years at the time of the ceremony) and relationship experience (she has previously married and divorced), tell against a conclusion that she approached the situation naïvely. Registration of marriage In the applicant’s affidavit filed 25 February 2022, the applicant annexes a certificate issued by the NSW Registry of Births, Deaths and Marriages on 21 December 2021 confirming that no marriage registration was found concerning the applicant in their records on this date. Section 49(1) of the Births, Deaths and Marriages Registration Act 1995 (NSW) (“BDMRA”) provides for the registrar to issue certificates, as follows:49 Issue of certificate(1) On completing a search of the Register, the Registrar may issue a certificate--(a) certifying particulars contained in an entry, or(b)certifying that no entry was located in the Register about the relevant registrable event.(2) A certificate under subsection (1)(a) is admissible in legal proceedings as evidence of--(a) the entry to which the certificate relates, and (b) the facts recorded in the entry. A relevant registrable event includes a marriage: see s 4 of the BDMRA. As set out above, s 49(2) of the BDMRA provides that a certificate issued under s 49(1)(a) is admissible in legal proceedings as evidence of the entry to which the certificate relates, and the facts recorded in the entry. The certificate issued by the NSW Registry of Births, Deaths and Marriages provided by the applicant states:I hereby certify that a search has been made in the Records of Marriage held by me from 30 July 2014 to 20 December 2021 inclusive for [Ms Parsa] who was born [in] 1990 and no marriage registration occurring in New South Wales has been found.(Applicant’s affidavit filed 25 February 2022, annexure “B”) As there is no entry to which the certificate relates (it merely certifies that no entry has been found), it does not appear to be admissible pursuant to s 49(2) of the BDMRA as this sub-section is limited to certificates pursuant to s 49(1)(a), although this is curious given that s 49(1)(b) of the BDMRA provides for such a certificate to be issued. In this respect the section can be contrasted with s 64 of the Marriage Act which provides for the admissibility of certificates confirming that there are no entries in a register. Section 185 of the Evidence Act 1995 (Cth) (“the Evidence Act”) requires that full faith and credit be given to records of State authorities. Evidence of the absence of a record in the State office would ordinarily require an officer to be a witness (as the certificate is, in this respect, documentary hearsay and no notice has been provided to the respondent pursuant to s 67 of the Evidence Act). However, resort may be had to s 183 of the Evidence Act which provides that:183 Inferences If a question arises about the application of a provision of this Act in relation to a document or thing, the court may:(a)examine the document or thing; and(b)draw any reasonable inferences from it as well as from other matters from which inferences may properly be drawn.