Pen & Vun - [2021] FamCA 294

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pen & Vun

Details

AGLC: Pen & Vun [2021] FamCA 294
Case: [2021] FamCA 294
Decision Date: 13 May 2021

CaseChat Overview and Summary

In the matter of *Pen & Vun*, Foster J of the Federal Circuit Court of Australia considered an application by the husband for a declaration of nullity of marriage. The dispute arose in the context of parenting proceedings initiated by the wife, with the husband alleging that his consent to the marriage was vitiated by duress.

The primary legal issue before the Court was whether the husband's consent to the marriage was rendered invalid due to duress exerted by the wife. This required the Court to examine the circumstances surrounding the parties' decision to marry, particularly the husband's claims of threats and coercion by the wife.

Foster J dismissed the husband's application, finding that the evidence did not establish duress sufficient to invalidate the marriage. The Court considered the general principles of duress in the context of marriage, weighing the conflicting accounts of the parties regarding their interactions and the events leading up to the marriage. Ultimately, the Court was not satisfied that the husband's will was overborne to the extent required to grant a declaration of nullity. The husband's application for a declaration of nullity was therefore dismissed.

Orders

Orders of the court

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).

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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

ORDER MADE BY:	FOSTER J
DATE OF ORDER:	13 MAY 2021