Pen & Vun
[2021] FamCA 294
•13 May 2021
FAMILY COURT OF AUSTRALIA
Pen & Vun [2021] FamCA 294
File number(s): PAC 3665 of 2018 Judgment of: FOSTER J Date of judgment: 13 May 2021 Catchwords: FAMILY LAW – NULLITY – Application for declaration – Where the husband alleges that his consent was not proper because of duress – Where discussion of general principles – Where application dismissed Legislation: Family Law Act 1975 (Cth) s 51
Marriage Act 1961 (Cth) s 23B
Cases cited: Hallas and Kefalos [2012] FamCA 860
Kokl & Kokl (1981) FLC 91-078, (1981) 7 Fam LR 591, [1981] FamCA 60
Re S (1980) FLC 90-820, (1980) 5 Fam LR 831, [1980] FamCA 27
Teves III and Campomayor (1995) FLC 92-5785, [1994] FamCA 57
Number of paragraphs: 45 Date of last submission/s: 26 April 2021 Date of hearing: 8-9 April 2021 Place: Parramatta Counsel for the Applicant: Mr Givney Solicitor for the Applicant: Longton Legal Counsel for the Respondent: Mr Blank Solicitor for the Respondent: SS Lawyers Pty Ltd ORDERS
PAC3665 of 2018 BETWEEN: MR VUN
Applicant
AND: MS PEN
Respondent
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
13 MAY 2021
THE COURT ORDERS THAT:
1.The husband’s application for Declaration of Nullity filed on 24 October 2018 is dismissed.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pen & Vun has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:
The applicant husband seeks a declaration that the marriage between he and the respondent wife conducted on … September 2014 be declared void and a nullity.
This order was sought by the husband in the context of parenting proceedings which were initiated by the wife in the Federal Circuit Court of Australia in August 2018. On 25 October 2018 proceedings in relation to the application for a decree of nullity were transferred to this Court.
BACKGROUND
The husband aged 55 was born in China and came to Australia in 1997, before becoming an Australian citizen in 2004.
The wife aged 42 was also born in China and came to Australia in June 2013 on a tourist visa.
The parties were introduced to each other through a mutual friend in June 2013 when the wife stayed in the husband’s home for two weeks with the mutual friend and two other friends.
In July 2013 the parties travelled to China together to visit the husband’s mother who had been hospitalised. It is the wife’s contention that she met the husband’s family and visited his mother in hospital at this time, however, it is purported by the husband that he and the wife merely travelled to China together and upon their arrival the wife travelled to her hometown and did not spend time with the husband.
It is asserted by the husband that while the parties were in China in 2013 the husband transferred a considerable sum of money to the wife for her to invest in China. The wife contends that she loaned this money to a third party who eventually lost the money. This sum of money later became the basis for court proceedings initiated by the husband against the wife in China.
It is accepted by both parties that a sexual relationship had developed between the parties from at least December 2013.
It is clear that throughout the relationship both parties spent significant time and funds visiting casinos, although each party deposes to the other being the gambler in the relationship. The parties frequently enjoyed trips around Australia which were organized and funded by the casinos by reason of the amounts wagered.
Yet the evidence of the parties diverges considerably.
The husband deposes that in April 2014 the wife stayed in his home in Sydney (in the spare room) and during that time she informed him that her visa was about to expire and enquired whether he would marry her in order for her to obtain permanent residency, which he declined.
It is the wife’s assertion that she was granted a three year business visa in March 2014 which allowed her to travel to Australia for up to three months at a time and as a result she did not require a spousal visa to remain in Australia.
The parties travelled to China in June 2014 and while on this trip it is asserted by the husband that the wife again requested that the husband marry her so her daughter could attend school in Australia. It is the husband’s contention that this conversation took place while the parties were travelling in a motor vehicle across a bridge and upon the husband’s denial of the wife’s request the wife began to drive in an erratic manner and attempted to crash into the bridge’s railing.
The husband deposes that in July 2014 the wife attended his home in Sydney unannounced and demanded that he marry her, informing him that she had taken naked photos of him which she would upload on the internet if he refused to marry her. The husband asserts he believed the wife had left his property, however, she telephoned him to inform him she was still outside his door where he found her holding a knife above her wrist and threatening to kill herself if he did not agree to marry her. Curiously, the husband did not contact police about either of these incidents despite deposing that he knew disseminating the images would be illegal.
The husband deposes to a similar event occurring in August 2014 where the wife again attended the husband’s home and began to self-harm with scissors and a fruit knife until the husband agreed to help her. The husband contends that following this incident the wife lived in the spare room of his home.
It is the wife’s assertion that the events deposed to above have been fabricated by the husband and in reality the parties shared an intimate and loving relationship, including in the months of July and August 2014, leading up to the wedding when the parties enjoyed trips together, travelling to Melbourne, the Gold Coast, Cairns, Vanuatu and Darwin.
The wedding ceremony
It is the wife’s contention that in early August 2014 the parties attended a marriage celebrant at the encouragement of the husband where they completed a Notice of Intended Marriage form and booked a wedding date of … September 2014. The wife asserts that the husband then suggested she contact two of her friends to request they be witnesses at the wedding, to which her friends agreed.
The husband gives a vastly different account of events leading up to the wedding on … September 2014. It is the husband’s contention that he did not attend the marriage celebrant prior to the wedding. Instead, he asserts, he was informed by the wife that she had arranged a marriage celebrant the night prior to the wedding while the wife was holding a large chef’s knife. The husband contends that he told the wife that he would marry her and asked her to put the knife down, however, she held the knife to his throat and discussed signing a prenuptial agreement with him, advising him that he would not be required to remain married to her and could seek a divorce at her expense. Curiously the pre-nuptial agreement inter alia provides that the husband would not be liable to maintain the child of the wife from her previous relationship.
It is the husband’s contention that on the day of the wedding, the wife informed him that she had made an appointment with the marriage celebrant Mr C, and had arranged for married friends to be witnesses at the ceremony. Those witnesses who both gave oral evidence were picked up in a car by the parties and driven to the ceremony venue.
The husband deposes to telling one of the witnesses that he did not want to marry the respondent because “she is crazy” and that he had “no way out”, to which the wife’s friend advised that if he did not want to get married he and his wife could leave the ceremony. This was put to the witnesses at hearing who denied that this conversation took place.
At the wedding celebrant’s office, where all were in the same room, the husband deposes that he had a private conversation with the wife where he again begged her to not go through with the marriage to which she responded that she would jump off the building if he did not marry her on that day. He alleges that she then took out a pen and held the tip towards his throat while threatening to kill him and asserting that she would not leave the celebrant’s office until they were married. Notwithstanding this assertion, prior to the commencement of the marriage ceremony the parties signed a pre-nuptial agreement in front of the marriage celebrant.
During the ceremony the marriage certificate was signed by both of the parties and the two witnesses. Photos depict same. It is the husband’s submission that the Notice of Intended Marriage form was also completed at this time.
It is uncontested that both parties signed the purported prenuptial agreement before the commencement of the marriage ceremony. Although the agreement is of no legal effect, there can be no doubt that both parties knew that they were about to enter into a marriage and understood the nature and legal effect of that marriage when they signed the prenuptial agreement.
Further, oral evidence was given at the hearing by the two witnesses who were present at the marriage ceremony, having been driven there by the parties together, and ascribed their names to the Marriage Certificate. Both witnesses gave evidence supportive of the wife’s account of the wedding day and neither saw the wife in a state of distress on the wedding day as purported by the husband or any indication of reluctance on behalf of the husband or any threat to him. Their evidence was clear and certain as to their respective recollections of the day of the ceremony. There is nothing to suggest that the husband was overborne or in some form of distress at the time. Indeed, photographs of the ceremony indicate otherwise.
Later
In 2016 the wife contacted the Registry of Births, Deaths and Marriages NSW (“the Registry”) to obtain a copy of the parties’ marriage certificate at which time she learnt that the marriage had not been registered by the celebrant. There was an enquiry conducted by the Registry resulting in the wife being required to complete the missing Section 42 Notice of Intention to marry with the marriage then being registered.
There are varying assertions made by each party as to the nature of the parties’ relationship following the wedding ceremony, however, this information provides no assistance in determining the issue in these proceedings which is duress at the time of marriage. Notwithstanding it is sufficient to say the parties’ relationship continued in some form including trips together and intimacy resulting in the birth of the parties’ child in early 2018.
THE LAW
The application of the husband for a declaration of nullity of marriage is made pursuant to s 51 of the Family Law Act 1975 (Cth) (“the Act”) that provides:
An application under this Act for a degree of nullity of marriage shall be based on the ground that the marriage is void.
The grounds on which a marriage is void is set out in s 23B of the Marriage Act 1961 (Cth), which provides, relevantly, as follows:
(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:
(a)either of the parties is, at the time of the marriage, lawfully married to some other person;
(b) the parties are within a prohibited relationship;
(c) by reason of section 48 the marriage is not a valid marriage;
(d) the consent of either of the parties is not a real consent because:
(i) it was obtained by duress or fraud;
(ii)that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
(iii)that party is mentally incapable of understanding the nature and effect of the marriage ceremony; or
(e) either of the parties is not of marriageable age, and not otherwise.
The ground relied upon by the husband is s 23B(1)(d)(i), that is, that the marriage was obtained by duress or fraud.
In Re S (1980) FLC 90-820, (1980) 5 Fam LR 831, [1980] FamCA 27 Watson SJ said as follows:
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.
He went on to say that:
If there are circumstances which taken together lead to the conclusion that because of the oppression a particular person has not exercised a voluntary consent to marriage that consent is vitiated by duress and is not real consent. This is so however the oppression arises and irrespective of the motivation or propriety of any person solely or partially responsible for the oppression.
Later, his Honour said:
... It is the effect of the oppression on his mind that should be the operative factor, not the form of such oppression.
Subsequently in Kokl & Kokl (1981) FLC 91-078, (1981) 7 Fam LR 591, [1981] FamCA 60 the Court said in relation to duress such as to render a marriage a nullity was duress that meant:
…the compulsion of a person by physical or mental harm.
In Teves III and Campomayor [1994] FamCA 57; (1995) FLC 92-578 Lindenmayer J 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 or after it, can be extremely important.
As was said by Ryan J in Hallas and Kefalos [2012] FamCA 860:
The standard of proof, having regard to the gravity of the application is determined having regard to section 140(2) of the Evidence Act 1995. Assertions, conclusions, indefinite testimony and indirect inferences are thus insufficient to ground a finding of fact.
Discussion
The evidence of both parties as to the circumstances in the period leading up to the ceremony is diametrically opposed to one another. Yet the focus should be on the day of the ceremony.
The husband’s assertions as to the respondent’s conduct on the day is startling. Yet notwithstanding he took the opportunity to sign a pre-nuptial agreement in the presence of the celebrant and participated in what he clearly knew was a marriage.
His evidence was not supported by the witnesses to the ceremony who both gave frank and clear testimony as to their recollections of the events of the day. Their evidence is accepted without reservation.
The husband asserted that after the ceremony there was in reality no relationship with the respondent. Yet it is accepted that the parties continued their relationship, engaging in gaming and extensive travel together. In mid-2017 the parties’ child was conceived.
In terms of the application of the facts as asserted by the husband, the husband asserts that he was forced into the marriage. As discussed above, the husband felt forced into this position due to the wife’s conduct where she threatened to harm both herself and the husband. A number of the incidents deposed to by the husband are purported to have taken place up to three months before the marriage ceremony and if the Court did accept that they took place they are simply too remote to speak to the issue of duress on the day of the marriage.
The only evidence provided by the husband to support his position of duress at the time of marriage is an email from the marriage celebrant which was sent to the Registry as part of their investigation conducted in 2016 as to the failure to register the marriage, in which the celebrant asserts that the husband had expressed to him that he did not want to get married. The email further asserts that the wife would not leave the marriage celebrant’s office until the husband agreed to marry her, something that the marriage celebrant described as an “annoyance”. Such does not lead to the conclusion that at the time of the marriage the husband participated in the ceremony because of some overbearing force.
Yet the wife’s evidence, given without objection, is that she spoke to the marriage celebrant as to the non-registration in 2016 and was informed by the celebrant that the husband had returned to his office some days later and asked him to destroy the marriage documents. Such a circumstance explains the absence of the requisite Section 42 Notice to facilitate registration.
Overall, the wife’s evidence and that of her witnesses is to be preferred over that of the husband.
The husband has the onus of proof as discussed above. In all of the circumstances, the husband has not satisfied the Court that the marriage ceremony itself was obtained by duress or fraud as contemplated by s 23B of the Marriage Act 1961 (Cth).
Accordingly, the application for declaration of nullity is dismissed.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster. Associate:
Dated: 13 May 2021
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