Rahimi & Moradi
[2023] FedCFamC1F 151
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rahimi & Moradi [2023] FedCFamC1F 151
File number(s): SYC 8679 of 2021 Judgment of: BERMAN J Date of judgment: 2 March 2023 Catchwords: FAMILY LAW – NULLITY – Where the applicant seeks a decree of nullity – Where the applicant asserts that the marriage was a symbolic ceremony and not registered in Australia – Where the applicant was still married to the respondent at the time of the subject marriage – Where the respondent seeks an order for Divorce – Where the Court finds that the parties were lawfully married and the grounds of the declaration of nullity do not exist – Application dismissed. Legislation: Family Law Act 1975 (Cth) ss51, 102
Marriage Act 1961 (Cth) ss 23, 23B, 23(B)(1), 88B(1), 88C(1)(a), 88D(1), 88G(1), 88G(3)
Division: Division 1 First Instance Number of paragraphs: 43 Date of hearing: 2 March 2023 Place: Sydney Counsel for the Applicant: Ms Golovina Solicitor for the Applicant: RMG Law & Associates Counsel for the Respondent: Mr Iuliano Solicitor for the Respondent: Swifte Law ORDERS
SYC 8679 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS RAHIMI
Applicant
AND: MR MORADI
Respondent
order made by:
BERMAN J
DATE OF ORDER:
2 MARCH 2023
THE COURT ORDERS THAT:
1.The Initiating Application filed 19 November 2021 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 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EXTEMPORE REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
By Initiating Application filed 19 November 2021, Ms Rahimi (“the applicant”) seeks a decree as to nullity of the marriage between her and Mr Moradi (“the respondent”) solemnised in 2010 (SYC8679/2021). The respondent opposes the making of the declaration and in addition, has filed an application for Divorce sealed on 31 May 2021, seeking a Divorce Order be made in respect of his marriage to the applicant (SYC4013/2021).
BACKGROUND
The applicant was born in 1978. The respondent was born in 1978. Both parties were born in Australia and are Australian Citizens.
The applicant seeks that the marriage be declared void having regard to s 23B of the Marriage Act 1961 (Cth) (“the Marriage Act”) which 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) …
(ii)that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
…
The parties commenced a relationship in or about early 2009. The parties decided to marry however, as a result of a conflict between the respondent and the applicant’s father, a decision was made that the parties would marry in Fiji.
The applicant contended at the time of the filing of her Initiating Application that her understanding of the wedding ceremony was that it would be a symbolic ceremony to celebrate the parties commitment to each other.
It is assumed that the applicant’s contention that the parties underwent a symbolic ceremony was to underpin the assertion that the applicant was mistaken as to the nature of the ceremony performed.
The applicant concedes that the parties underwent a wedding ceremony however, upon return to Australia there was some disagreement between the parties as to whether the respondent had attended Births, Deaths and Marriages in Sydney, Australia to register their marriage.
Thereafter, the applicant considers that as between the parties, there remained uncertainty as to the status of their marriage.
The parties separated in early 2018. The applicant married Mr C (“the applicant’s current partner”) and then checked whether the marriage to the respondent had ever been registered in Australia or in Fiji.
The uncertainty in the applicant’s mind as to the status of her marriage to the respondent was brought into sharp focus when her solicitor was served with an application for divorce on 25 May 2021.
The applicant states that she was suspicious that the respondent may have falsified documents without her knowledge and consent such that either what she considered to be a symbolic ceremony was in fact a marriage ceremony or that the respondent had in some way interfered with various documents such that the respondent could now rely upon them in order to have the applicant’s nullity application dismissed.
Simply put, the applicant’s position is that she was not aware that the purported marriage to the respondent was ever registered and until documents were forwarded to her in 2021, she had not sighted the marriage certificate.
A more egregious contention is that the applicant maintains her position that she did not consent to the registration of the marriage in Fiji and in any event, the signatures depicted in the certificate, was not hers. The respondent’s position is that at all material times the parties understood that they were to participate in a marriage ceremony in Fiji and that there was no circumstance where the applicant could have been mistaken as to the nature of the ceremony that the parties entered into. Moreover, the respondent says that all that was required to be done to ensure that the parties’ marriage was valid under the local law of Fiji was completed, thereby enabling a certificate of marriage to be issued by the Registrar General of Births, Deaths and Marriages in City D, Fiji.
MARRIAGE CERTIFICATE
Exhibit “1” in the proceedings is the original of the Certificate of Marriage confirming that the marriage between the parties was solemnised in 2010 at the E Venue in Fiji.
The information on the certificate appears to be uncontroversial. The document properly records the personal details of the parties, their conjugal status at the time, their usual place of residence and information as to the names of the parents of each of the parties.
The Certificate of Marriage also contains the identity of the witnesses to the marriage, namely Ms F and Mr G, and it records that the marriage was solemnised by Ms H.
Finally, the Certificate of Marriage bears the original signature of the Registrar in Fiji and the seal or stamp confirming the authenticity of the document. Whilst the applicant does not concede the veracity of the Certificate of Marriage, in the absence of any evidence to the contrary, I am easily able to find on the balance of probabilities that the Certificate of Marriage is an authentic document.
EVIDENCE OF INTENTION TO MARRY
The respondent relies upon communication between the applicant and a travel agent putting in place arrangements for the parties’ wedding in Fiji. The agent proposed two customised packages involving the J Venue in K Region or the alternative being E Venue.
The applicant did not concede that her email communication with the travel agent was authentic. It was her contention that the respondent had access to her computer and that it was possible for either him or someone else to have used her email address to undertake a communication as to proposed wedding plans.
The applicant’s evidence was unconvincing.
The Certificate of Marriage and the wedding certificate appears to have been signed by the parties and of perhaps greater importance, discloses the identity of the witnesses.
The wedding certificate also records that the wedding was solemnised by Ms H.
The applicant was asked whether she remembered that the wedding ceremony and the parties signing the wedding certificate occurred in the presence of Ms F and Mr G. The applicant was not able to remember that the ceremony was witnessed.
The respondent also provides a copy of an email sent by the applicant to Mr G and Ms F as follows:
[…] 2010 at 4.31pm
Hi there,
Hope you both had a good holiday at [E Venue] and hope you are both well.
Thank you very much for taking photos and being out witnesses at our wedding.
It was nice to meet you both.
How is everything back in Sydney?
We are missing the lovely warm weather in Fiji and we cant wait to go back there hopefully next year for our one year anniversary.
Are you guys going to do any travel again or going back to Fiji?
Look forward to hearing back from you.
Regards,
[Ms Rahimi]
The applicant does not deny that the email address as appears in the communication is hers.
The applicant’s email was the subject of a response from Mr G in 2010 in the following terms:
To: [Ms Rahimi]
Subject: Re: Back in Sydney
Hi, [Ms Rahimi].
It’s great to hear from you. Sorry but I’ve been flat out since I got back. We were delighted to be at your wedding and we hope you managed to salvage the photos from the memory card. No travel plans yet although we hope to do a lot more in the future.
Things are good, just a bit too busy but looking forward to the long weekend. The house was still there when we got back there were no complaints from the neighbours so […] seems to have done a good job.
Best wishes to you both and let’s stay in touch.
Regards,
[Mr G]
The applicant purports to have no recollection or knowledge of the email exchange with Mr G. I do not consider that her denial is credible and I find that the applicant entered into email communication with him.
There are other documents provided by the respondent which are of assistance. In particular, the respondent provides a greeting card signed by a number of people directed to the applicant congratulating her on the wedding and marriage to the respondent.
Finally, the applicant entered into communication with an officer of the Attorney General’s Department in relation to the applicant’s enquiry as to whether NSW Birth, Deaths and Marriages received information and confirmation of the parties’ marriage in Fiji in 2010.
The response from Ms L, Client Service Officer at the NSW Registry of Births, Deaths and Marriages is relevant:
Sent: Thursday, […] 2010 9:17 AM
To: [Ms Rahimi]
Subject: Re: Marriage overseas
Dear [Ms Rahimi],
Thank you for your enquiry.
Under Australian law, you are legally entitled to one marriage ceremony, whether that be in Australia or overseas.
I can advise you that you are not required, nor is there a facility, to register an overseas marriage in New South Wales or any other Australian state. The Registry only records events that occur in NSW.
Your marriage is legally recognised in Australia, but the responsibility for registering the marriage is undertaken by the country in which it takes place.
To obtain evidence of your overseas marriage, it is best if you obtain a marriage certificate or any other supporting documentation before you leave the country.
If you wish to find out more about the implications of your overseas marriage in Australia, please visit the Department for Foreign Affairs and Trade website…
…
The applicant’s assertion that the communication purportedly undertaken with Births, Deaths and Marriages NSW did not occur, was unconvincing.
LEGAL PRINCIPLES
The validity of overseas marriages
An overseas marriage will be recognised in Australia as valid if it was valid under the local law at the time it was solemnised (see ss 88C(1)(a) and 88D(1) of the Marriage Act). Local law is defined in s 88B(1) of the Marriage Act to mean “…the law in force in a foreign country or in that part of the foreign country in which the marriage was solemnised”.
Proof of validity of an overseas marriage is facilitated by s 88G(1) of the Marriage Act. This provides that a Marriage Certificate issued by a competent authority in a foreign country is prima facie evidence of the occurrence of the marriage and the validity of the marriage.
The term “competent authority” is defined in s 88G(3) of the Marriage Act as being either an authority prescribed by the regulations in relation to a foreign country or part of a foreign country, or any other authority competent under the law of that foreign country to issue the original certificate or a certified copy thereof.
Even where a document does not qualify as a Marriage Certificate within the meaning of s 88G of the Marriage Act, it may still be admissible as a record of marriage within the meaning of s 102 of the Family Law Act 1975 (Cth) (“the Act”). This is because a document within the meaning of s 102 of the Act is a historical recitation of an event and does not have to be an official document.
Section 102 of the Act provides that the Court may receive as evidence, a document purporting to be either the original or a certified copy of a Certificate of Marriage alleged to have taken place in Australia or elsewhere. The section therefore enables a party to prove that the parties went through a ceremony of marriage simply by tendering a document which, on the face of it, states that it is an original or certified copy of the Marriage Certificate without having to prove the seal or signature appearing on the certificate is true or is the official seal of the Court which issued it.
For the avoidance of any doubt, I accept as evidence, the Certificate of Marriage that forms Exhibit “1” as evidence of the occurrence of the marriage between the parties in 2010.
NULLITY OF MARRIAGE
Under s 51 of the Act, an application for a decree of nullity of marriage must be based on the ground that the marriage is void.
A void marriage is of no effect in law. It is not a “marriage” at all irrespective of whether or not a decree declaring it void has been pronounced. The decree is simply a declaration which confirms the fact that there was never a valid marriage.
The grounds for decree of nullity of marriage as set out in s 23 and 23B of the Marriage Act. The grounds under which a marriage is void under s 23B(1) are as follows:
(a)either of the parties is, at the time of a marriage, lawfully married to some other person;
(b) the parties are within a prohibited relationship [as defined in the Marriage Act];
(c)by reason of section 48 of the Marriage Act is not a valid marriage [the marriage is not a valid marriage under the law of the place where the marriage ceremony took place because of the failure to comply with the law of that place about the form of the marriage ceremony];
(d)the consent to the marriage 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 did not understand the nature and effect of the marriage ceremony; or
(e) either of the parties is not of marriageable age;
I find that the applicant and respondent participated in a marriage ceremony in 2010, that the parties were therefore lawfully married and as such, the grounds for a declaration of nullity do not exist.
The application for a declaration of nullity should be dismissed.
I make orders as appear at the commencement of these reasons.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 14 March 2023
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