Payne & Mossman
[2007] FamCA 866
•23 August 2007
FAMILY COURT OF AUSTRALIA
| PAYNE & MOSSMAN | [2007] FamCA 866 |
| FAMILY LAW – NULLITY - Whether consent invalid because it was obtained by duress - Application dismissed |
| Marriage Act 1961 (Cth) s 23B(1)(d)(i) |
| Cooper v Crane [1891] P 369 In the Marriage of S (1980) FLC 90-820 Kecskemethy v Magyar (1961) 2 FLR 437 Parojcic (orse. Ivetic) v Parojcic [1958] 1 WLR 1280 Scott v Sebright (1886) 12 PD 21 Teves v Campomayor (1995) FLC 92-578 |
| APPLICANT: | Ms Payne |
| RESPONDENT: | Mr Mossman |
| FILE NUMBER: | MLC | 186 | of | 2007 |
| DATE DELIVERED: | 23 August 2007 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Mushin J |
| HEARING DATE: | 2 April 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Griffin |
| SOLICITOR FOR THE APPLICANT: | Anthony Peterson & Co |
Orders
The application of Ms Payne for a decree of nullity of marriage filed 5 January 2007 is dismissed.
All outstanding applications are dismissed.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Mushin delivered this day will for all publication and reporting purposes be referred to as Payne & Mossman.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC186/2007
| Ms Payne |
Applicant
And
| Mr Mossman |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This is an undefended application by the wife for nullity of her marriage with the husband celebrated in Melbourne in December 1998. The application has been undefended because the husband's whereabouts are unknown.
The essence of the wife's application is that she entered into the marriage under duress.
CONDUCT OF THIS APPLICATION
As this application has been conducted on an undefended basis, the wife's affidavit evidence has not been challenged. As a general statement, I accept it in accordance with normal practice. However, to the extent that it contains statements of law and opinion, I am unable to consider it.
BACKGROUND FACTS
The wife is an Australian national. The husband is American but has resided in Asia for the majority of his life.
The parties met in or about August 1998 in Asia. They came to Australia in October 1998, having co-habited in Asia for the preceding two weeks. The husband convinced the wife that she should assist him in migrating to Australia which she agreed to do. The wife deposed that following their arrival in Australia, the husband commenced putting pressure on her for them to get married. In her initial affidavit the wife deposed:
I did not want to get married but felt I was obligated as he was extremely dominant and forceful and made me feel I would be doing the wrong thing if I did not marry him which would have caused him to be deported.
The constant pressure and duress to marry never ceased and I eventually I [sic] felt I had no other choice but to get married and do as [the husband] wanted.
In her later affidavit the wife deposed:
I was not of a healthy mind and state when I married [the husband] and that [sic] I did so only under duress and my inability to deal with this obsessive, dominating and possessive character. I did not know how to extract myself from the situation and feared both violence and his obsessive behaviour and was worn down by sleep deprivation. I feared that if I did not marry him he would never leave as he would never have any money and that I would be stuck in the apartment with him with no escape from his demands and dependency and erratic and violent behaviour.
Also in her later affidavit the wife deposed:
I state that at the time of the marriage ceremony on […] December 1998 I truly did not give my consent as I was overwhelmed, tired, and unable to make a clear or cohesive [sic] decision as to my interest, and I only did it so I could change the circumstances so that either [the husband] would get some work and I could see an end to my working all the time and having his dependency on me. I was not in a healthy mental state nor sufficiently able or competent to extract myself from the situation.
DISCUSSION
The wife submits that the husband's conduct and her state of mind entitle her to a Decree of Nullity of Marriage. She submits that she consented to the marriage only as a result of the duress imposed on her by the husband and as a result, her consent was not a proper consent.
I am empowered to grant a Decree of Nullity of Marriage by virtue of the provisions of s 23B of the Marriage Act 1961 (Cth). That section provides that:
(1) A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:
…
(d) the consent of either of the parties is not a real consent because:
(i) it was obtained by duress or fraud;
Duress at the time of the marriage ceremony
10.A statement by Collins J has long been regarded as basic authority for the circumstances in which a court might declare a marriage to be a nullity by virtue of duress. His Honour held in Cooper v Crane [1891] P 369 at 375 – 377:
On the one hand, it is clear law that if she did not in fact consent to the marriage the court will declare it null. On the other hand, when a person of full age and of sound mind has gone through the ceremony of marriage publicly in the presence of witnesses who discovered nothing in her demeanor to suggest constraint, and has herself complied with the formality of signing her name and answering questions without apparent difficulty or confusion, very clear and cogent evidence must be given before the presumption of consent can be rebutted and the marriage annulled.
…
In order to hold that the ceremony so performed was not binding, I think I should have to infer as a fact one of two things – either that she was 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 powers of volition were so paralyzed that, by her words and acts, she merely gave expression to the will of the respondent, and not her own.
11.One of the significant aspects of the quote in the last paragraph is the proximity of the alleged duress to the actual ceremony of marriage. That is not to say that the duress must take place immediately before or during the ceremony, but rather that the duress must have a direct bearing on the bringing about of the constraint to real consent. That point was made by Lindenmayer J in Teves and Campomayor (1995) FLC 92-578. The alleged duress consisted of physical violence by the husband to the applicant wife including alleged sexual assault of her. The husband and the wife did not cohabit at any time either before or after the marriage ceremony. His Honour quoted the above passage of Collins J and held at 81,739:
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 or after it, can be extremely important.
12.In Kecskemethy v Magyar (1961) 2 FLR 437 the applicant wife alleged that she was induced to go through a ceremony of marriage by the fear of what the husband might do to himself (he had threatened to commit suicide if she did not marry him). Nield J held that in light of the fact that there was no evidence as to whether the wife was acting under force or constraint at the time of the ceremony itself, the wife’s application for nullity could not succeed.
13.In the present case, the wife submits that she was induced to enter the marriage because of the husband’s influence and that this amounts to duress. The conduct of the husband that, in the wife’s evidence, constituted duress may be separated into the following categories:
(a)Physical abuse;
(b)Sleep-deprivation and depression; and
(c)Psychological abuse.
I will address each of these in turn, beginning with the least persuasive.
(a) Physical abuse
14.The wife states that after the parties had been in Australia for two months, the husband ‘began to get violent’. In her affidavit the wife states:
On one occasion when I said I would not get married to him he hit me (at first he would just shove me up against the wall) and said that I should do so because I was obligated to support him.
The wife further states that on one occasion when the husband was acting violently the police were called. However, no corroboratory evidence has been adduced. These are the only two references of violence in the evidence before me. No medical evidence or further detail is provided.
15.I am aware of the inherent difficulty in reporting and testifying to family violence and, as such, I am sympathetic to the wife. However, for the purposes of making out a case for nullity this brief description of conduct at an unspecified time and of an unspecified duration before the marriage ceremony is not sufficient to establish that at the time of the ceremony this conduct was playing upon the mind of the wife to the extent that she was so consumed by fear, or that her will was so subsumed by that of the husband, that she was incapable of consenting to the marriage.
(b) Sleep deprivation and depression
16.The wife submits that because the husband could not work she was forced to support him by working long hours. She did ‘temp work’ during the day and worked as a waitress at night. As a result of this, the wife submits that she became sleep deprived, depressed and lost weight rapidly until she weighed less than 40 kilograms. A medical report, which I will return to later, describes the wife as depressed and weighing 45 kilograms. However, this report was made some 16 months after the parties were married. There is no medical evidence, witness statement or record of employment which pertains to the relevant period which is the time prior to the marriage.
(c) Psychological abuse
17.The wife’s evidence is that the husband was controlling and obsessive and that this weakened her self-esteem and caused her to be isolated from friends and family.
18.The wife states that when in Asia, the husband ‘made sure he was with [her] day and night at every available opportunity’ and that once in Australia he ‘would make sure that [she] did not go out with [her] friends indicating that [she] was meant to be with him and to look after him’. For the first weeks after arriving in Australia, the parties lived in the wife’s former residence with two of the wife’s female friends. The wife asserts that the husband ‘refused to let male company into the house’ and behaved oddly, for example insisting that the shower be cleaned before he used it and refusing to sit on the bed with clothes on. The wife states that as a result of the husband’s behaviour her housemates moved out of the home. No date is provided in relation to these events and no evidence is provided from any former housemate.
19.The wife further states that the husband increasingly made derogatory comments about her, for example that she was ‘no good’, not attractive and that no one else would ever love her or want her. According to the wife, the husband also insisted that the only solution to the parties’ financial problems was for the wife to work as a stripper. On one occasion she alleges that he drove her to a strip club, ‘made’ her go inside and left. The wife states that she was ‘so ashamed and embarrassed [she] couldn’t stop crying’. The husband insisted later that the wife must either marry him or become a stripper.
20.The wife states that she ‘lost any sense of being able to find a way out’ of her predicament and felt that her only option was suicide. Medical records from the Monash Medical Centre, annexed to the wife’s affidavit, show that the wife was admitted on 24 April 2000 because she had taken an overdose of Panadol. This event occurred more than a year after the marriage and is therefore not relevant to my current consideration.
The marriage ceremony
21.The only evidence in relation to the circumstances of the marriage ceremony itself is the wife’s affidavit, in which she states that she told no-one of the wedding and participated in the ceremony on her break from work. She also states that there were no guests save for the two witnesses, one of whom was a friend of the wife’s and the other she had never met before. Neither of these witnesses could be located to give evidence. The wife further claims that there was no celebration of any kind and that the wife returned to work immediately after the ceremony.
22.Clearly the wife was under a great deal of pressure throughout this relationship. Nevertheless without any external evidence as to the circumstances of the wedding ceremony nor the precise details of events immediately before the ceremony, I cannot be satisfied that at the time of the marriage ceremony this pressure was at such a level that it constituted duress. The evidence certainly indicates that the wife was regretful, humiliated and depressed after the fact but this cannot help her in an application for a nullity of marriage.
Lesser Forms of Pressure
23.In considering the level of pressure which would nullify a person’s consent to marriage, Anthony Dickey QC notes that the courts have consistently distinguished duress from lesser forms of pressure (Anthony Dickey QC, Family Law (5th ed.), Lawbook Co., 2007, at p 148). In Lenoards v Leonards (1961) 2 FLR 111 Barry J considered parental pressure as a ‘lesser form of pressure’, holding at 113:
That [sic] petitioner wanted to placate his father and mother, who desired the marriage, and that he was a tormented person whose heart was not in what he was doing, and that he was under a considerable emotional stress, may fairly be true, but I do not think that he would have been able to persuade this court that he was a person who was so affected by duress that he was virtually an automaton or a mere puppet with no will of his own at the time he went through the ceremony of marriage…I think the true view is that while he regretted the situation he was in, and was very sorry and upset, he consented to the marriage.
24.That case can be contrasted with the duress found in Parojcic (orse. Ivetic) v Parojcic [1958] 1 WLR 1280.A Yugoslav refugee ordered his daughter to marry a man chosen by him, who was another Yugoslav refugee, and threatened to send her back to Yugoslavia if she refused. The father had also hit his daughter in an argument over her refusal to marry the man. The Court found that the girl had been terrified into obedience to her father and that the ensuing marriage was accordingly void on account of duress.
25.The much earlier case of Scott v Sebright (1886) 12 PD 21 provides authority for fear as a form of pressure. Justice Butt held at 23 – 4:
It has sometimes been said that in order to avoid a contract entered into through fear, the fear must be such as would impel a person of ordinary courage and resolution to yield to it. I do not think that is an accurate statement of the law. 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. The difficulty consists not in any uncertainty of the law on the subject, but in its application to the facts of each individual case.
26.These liberal principles were further relaxed by Watson J in In the Marriage of S (1980) FLC 90-820 where Watson J said at 75,179:
The emphasis on terror or fear 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 vitiated 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.
27.Despite the relaxation of the principles by Watson J in the passage above I remain of the view that the applicant in the present case has not established duress to the requisite standard. The facts in In the Marriage of S (above) were unique to that case and provide a significant context to the statement made by Watson J. It is important to note that the wife in that case was below the age of majority. Justice Watson summarised the factual context at 75,178, holding:
[The wife] was a victim of family loyalty and concern, below the age of majority and on her evidence unable to initiate advice from outside her family. She went on with the wedding not because of terror but because of love, not because of physical threat to herself but because of concern for her younger sisters. She was caught in a psychological prison of family loyalty, parental concern, sibling responsibility, religious commitment and culture that demanded filial obedience.
28.I find that the facts in the present case are more consistent with those in Leonards (above) in that the applicant, while under what might have been considerable emotional stress and while her heart was not in it and while regretting the situation she was in and being very sorry and upset, is unable to establish that she did not consent to the marriage at the ceremony. I find that the applicant was under pressure but that this pressure was a lesser form of pressure to the duress required for lack of consent to be found.
29.Accordingly, the application is dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin
Associate:
Date: 23 August 2007
0
1