Radtke and Pagano
[2016] FamCA 784
•16 September 2016
FAMILY COURT OF AUSTRALIA
| RADTKE & PAGANO | [2016] FamCA 784 |
| ||||
| APPLICANT: | Ms Radtke |
| RESPONDENT: | Mr Pagano |
| FILE NUMBER: | PAC | 2339 | of | 2016 |
| DATE DELIVERED: | 16 September 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 13 September 2016 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | In Person |
Amended pursuant to rule 17.02 of the Family Law Rules 2004
Orders
The marriage between the applicant Ms Radtke and the respondent Mr Pagano conducted at Suburb D, New South Wales on 23 August 2013 be declared void and a nullity.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Radtke & Pagano has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 2339 of 2016
| Ms Radtke |
Applicant
And
| Mr Pagano |
Respondent
REASONS FOR JUDGMENT
The application of the wife before the Court for a declaration of nullity of marriage is made pursuant to section 51 of the Family Law Act 1975 (Cth), and that provision provides that:
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 section 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 wife is section 23B (1)(d)(i), that is, that the marriage was obtained by duress or fraud.
In Re S (1980) FLC 90-820 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 (1981) FLC 91-078 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 & 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.
The Wife’s Application
The applicant wife filed an application seeking a declaration of nullity on the 24 May 2016 in respect to the ceremony of marriage conducted on 23 August 2013 at Suburb D, New South Wales by a civil celebrant Ms B (Exh A).
On the 27 July 2016 that an order for substituted service of the application was made facilitating the applicant effecting service by forwarding a sealed copy of the application by express international post to the respondent’s last known address in European Country X. In her affidavit filed on 18 August 2016 the applicant deposes as to her compliance with that order for substituted service.
In the circumstances the court is satisfied that it is appropriate for the application to proceed in the absence of the respondent, he having filed no documents in response to the application.
The applicant relies upon her affidavit in support of the application for declaration of nullity filed on the 24th of May 2016.
The relationship between the respondent and the applicant commenced in early January 2013 when the applicant was not yet 18 years of age.
The respondent was in Australia on a working holiday Visa that the applicant believes expired in November 2013.
The respondent it appears imposed himself on the applicant moving in to her share rented apartment uninvited shortly thereafter.
Shortly after the respondent moved in with the applicant she observed that he was a regular smoker of marijuana. She insisted that he stopped smoking marijuana or move out of her flat. The respondent then for the first time exhibited anger in the presence of the applicant, frightening her and striking the bedside table near her head.
By April 2013 the respondent spoke to the applicant about his need to return to Country X when his visa expired and what could be done for him to remain in Australia. The applicant says they spoke about the respondent’s option of obtaining a student visa or doing a period of rural work that would extend his visa and his stay in Australia.
The respondent raised with the applicant the prospect that marriage between them might facilitate his stay in Australia. The respondent became more controlling of the applicant who by this time was working full time and supporting them both. The respondent expected the applicant straight home from work, would check her phone and not let her speak to friends unless he was present.
The relationship deteriorated and on 22 June 2013 there was an argument between the applicant and respondent, with the respondent abusing the applicant in obscene terms and pressing up against the bathroom door. The respondent pushed the applicant’s head against the door with sufficient force to damage the door itself. Thereafter the relationship between the applicant and respondent became significantly conflictual.
On occasions the applicant found it necessary to lock herself in the bathroom of their studio apartment only to find that the respondent managed to open the lock with a knife, enter the bathroom and confront her with a knife.
Notwithstanding the state of their relationship the applicant and respondent left for Country X on 7 July 2013 with the trip substantially funded by the applicant.
Arguments again ensued in Country X and the applicant informed the respondent that perhaps it was best that he remained in Country X and she returned to Australia. The respondent became aggressive and angry, slapping the applicant in the face. The applicant felt alone and helpless in a strange country. Notwithstanding the respondent thereafter returned to Australia in early August 2013 with the applicant and they resumed their cohabitation.
The respondent pursued the question of marriage with the applicant with the responded informing the applicant that he had arranged to meet with a proposed celebrant Ms B with the marriage planned for the 23 August 2013
The applicant and respondent subsequently met with the celebrant and duly completed a notice of intention of marriage, although the applicant asserts that she did not really understand the nature of the document.
Subsequently the applicant informed the respondent that she was not ready to get married. The respondent replied “if you don’t go along with getting married you will be sorry” and did so with a look that intimidated the applicant.
About the 18 August 2013 there was an argument between the applicant and respondent about the proposed marriage. The applicant informed the respondent that she was not going to marry him. The applicant observed the respondent open the kitchen cutlery drawer and she quickly retreated to the bathroom and locked the door. The applicant could hear the respondent endeavouring to open the lock from the outside, she presumed with a knife. The applicant was screaming and two neighbours entered their flat yelling at the respondent “put the knife down”.
The respondent after this incident became apologetic and it appeared to the applicant that he knew that he had gone too far and seemed to be sorry.
On the morning of 23 August 2013 the applicant says she struggled to even get out of bed. The respondent was telling her to get up and get ready. The applicant felt physically sick and retreated to the closed to bathroom crying.
The applicant then said to the respondent “I don’t feel right doing this without my family here. When I imagine getting married I imagine it would be a happy occasion where my whole family would celebrate and I know I don’t feel the way I assured on my wedding day”. The respondent replied “if you don’t do this today I will make sure you regret it for the rest of your life, don’t think I’ll forget how you embarrassed me.” The respondent repeated to the applicant words “shut up and get over it”. The applicant and respondent argued with the applicant begging the respondent to “let her out of it”. With that the respondent walked over towards the bed, pushed the applicant back onto the bed with his hands around her throat saying “shut the fuck up and get ready”. The applicant says that she was terrified and felt trapped with no choice but to marry him.
The ceremony of marriage took place shortly thereafter that day. On the evening of the marriage the applicant asked a friend of hers to stay overnight to protect her from the respondent.
The applicant and respondent remained living together until 27 October 2013. The applicant, after confiding with her employer, had the strength to end the relationship. She informed the respondent that night fearing that as she did she would end up in hospital. Thereafter the applicant stayed with friends until the respondent left for Country X on 1 November 2013.
The applicant’s case is supported by evidence from the marriage celebrant Ms B. She says that after the ceremony and on 26 October 2013 she was contacted by the respondent who informed her that the applicant wanted to end their relationship. The marriage celebrant subsequently spoke separately to the applicant who informed the marriage celebrant of the background of the relationship. The marriage celebrant concluded from what she had been informed by the applicant that the applicant was “trapped and was in fear of her life”.
Ms B then spoke to the respondent, confronting him with the allegations of the applicant. The respondent conceded that they were true and that he wanted to return to Country X. The next Thursday, Ms B says, he was gone.
Discussion
At the time of the ceremony of marriage the applicant was just 18 years of age. The respondent was 26 years of age.
The evidence of the applicant leads to the inescapable conclusion that the respondent imposed upon the applicant and took advantage of her youth and lack of maturity.
The relationship between the applicant and the respondent at relevant times prior to the marriage ceremony and at the time of the ceremony was characterised by conduct of the respondent that was coercive, controlling, threatening and abusive all for his own purposes presumably to assist any application for him to remain in Australia.
In the context of a nullity application it is an unusual circumstance to find evidence supporting the application by the marriage celebrant. That is the case here and such evidence is strongly corroborative of the evidence of the applicant.
As was said in Re S (1980) FLC 90-820:
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.
In England, Ormrod LJ in the Court of Appeal in Hirani v Hirani (1983) 4 FLR (Eng) 232 at 234 said that:
The crucial question in these cases, particularly where a marriage is involved, is whether threats, pressure, or whatever it is, is such as to destroy the reality of consent and overbears the will of the individual.
In the circumstances of the present application the court is readily satisfied that the consent of the applicant to marry was not a real consent but was a consent obtained by duress by reason of the conduct of the respondent outlined above.
There will be a declaration that the subject marriage is a nullity.
I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 16 September 2016.
Associate:
Date: 16 September 2016