Rahimi & Moradi

Case [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

  1. 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

  2. The applicant was born in 1978.  The respondent was born in 1978.  Both parties were born in Australia and are Australian Citizens.

  3. 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…

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AGLC
Rahimi & Moradi [2023] FedCFamC1F 151
Case
[2023] FedCFamC1F 151
Decision Date

CaseChat Overview and Summary

The matter before the court involves an application by Ms Rahimi to have her marriage to Mr Moradi declared void, and a counter-application by Mr Moradi for a divorce order. The applicant contends that her consent to the marriage was not a real consent due to a mistake about the nature of the ceremony, while the respondent seeks a divorce on the basis that the marriage is valid. The applicant argues that the marriage was a symbolic ceremony to celebrate their commitment, while the respondent maintains that the marriage was validly solemnised in Fiji. The court must determine whether the marriage was a real consent and whether it was properly solemnised.

The court considered the evidence and found that the certificate of marriage was authentic and signed by the Registrar in Fiji. The court also found that the applicant had entered into email communication with witnesses to the wedding, which undermined her claim that she did not know the nature of the ceremony. The court found that the applicant's evidence was unconvincing and that the applicant and the respondent had the intention to marry. The court held that the marriage was validly solemnised and that the applicant's consent was a real consent. The court dismissed the applicant's application for a declaration of nullity and ordered that the respondent's application for a divorce order be served on the applicant.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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 4.31pmHi 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 SydneyHi, [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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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