ROBERT & GOLDEN

[2011] FamCA 443

FAMILY COURT OF AUSTRALIA

ROBERT & GOLDEN [2011] FamCA 443

FAMILY LAW - NULLITY – consideration of duress as the basis of the ground that the marriage is void – relevant principles – application of the principles to the findings of fact.

Family Law Act 1975 (Cth) – s 51
Marriage Act 1961 (Cth) – s 23B(1)(d)(i)

Teves v Campomayor (1994) 205 FamCA 26 
Ward & Carper [2010] FamCA 516

APPLICANT: Mr Robert

RESPONDENT: Ms Golden

FILE NUMBER: SYC 604 of 2011

DATE DELIVERED: 10 June 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rose J

HEARING DATE: 4 May 2011

WRITTEN SUBMISSIONS: 11 May 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Humphreys & Feather, Solicitors

RESPONDENT: No appearance by or on behalf of the respondent

Orders

1. That the application of MR ROBERT for nullity of marriage on the ground that the marriage was not valid at the time the marriage was solemnised was heard today.

2. That the Court is satisfied that the husband was ordinarily resident in Australia.

3. That the Court is satisfied that the ground is proved.

4. That the Court therefore decreed that the marriage in fact solemnised on … November 2010 at the Registry of Births Deaths and Marriages at Parramatta in the State of New South Wales, Australia between MR ROBERT and MS GOLDEN be declared to have been absolutely null and void.

IT IS NOTED that publication of this judgment under the pseudonym Robert & Golden is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC604 of 2011

Mr Robert

Applicant

And

Ms Golden

Respondent

REASONS FOR JUDGMENT

Introduction

1. By his Initiating Application (Family Law) filed 3 February 2011, Mr Robert (who for convenience I shall refer to as “the husband”) seeks a decree of nullity of his marriage to Ms Golden (who for convenience I shall refer to as “the wife”).

2. The application was listed before me on 4 May 2011.

3. There was no appearance by or on behalf of the wife, notwithstanding that the matter was called on two separate occasions during the morning.

4. I was satisfied that service had been effected.[1]

   [1] Affidavit of Mr O filed 31 March 2011.

5. After hearing brief submissions by the solicitor for the husband, I made the following orders and notations:

   1.That the solicitor for the husband lodge written submissions by email to the Associate to Justice Rose on or before 5.00pm, 11 May 2011.

   2.That the solicitor for the husband cause a copy of the written submissions to be personally served upon the wife as soon as possible.

   Notations:

   A.The service of the Application for a Decree of Nullity has been established.

   B.The solicitor for the husband informed the Court that on her information the wife was present in the Court building and had indicated that she declined to appear.  Following that statement the matter was called again and there was no appearance by or on behalf of the wife.

6. My Associate subsequently received written submissions by the solicitor for the husband on his behalf.  I am satisfied that there has been compliance with Order 2 made on 4 May 2011.[2]

   [2] Affidavit of LP filed 25 May 2011.

7. The sole ground for an application for a decree of nullity of marriage is that the marriage is void.[3]

   [3] Section 51 Family Law Act 1975 (Cth)

8. The husband relies upon s 23B(1)(d)(i) of the Marriage Act 1961 (Cth) which provides that a marriage is void in circumstances where the consent of either of the parties to the marriage is not a consent freely given as it was obtained by duress.

The findings of fact

1. The husband relies upon his Affidavit sworn 28 January 2011 and filed 3 February 2011.  The evidence in that affidavit is not contested.  It is referred to in subsequent paragraphs.

2. The parties married in November 2010.  I am satisfied that the parties entered into a lawful marriage in accordance with the copy marriage certificate being annexure “A” to the husband’s affidavit.  I am further satisfied that the husband has been ordinarily resident in Australia and is an Australian citizen.

3. There are no children of the marriage.

4. The parties met in 2004.  During the ensuing period up to the date of the marriage the parties lived together for a period of about six months in 2008.  Prior and subsequent to that period the parties “were girlfriend and boyfriend at times” and at other times “they did not have a relationship”.

5. In about early September 2010 the husband informed the wife that he did not want a serious relationship and that “we should stop seeing each other”.  The wife replied that she was pregnant and the husband then responded by asking her to terminate the pregnancy as “we don’t want a child”.  The husband’s further evidence in relation to that matter is that the respondent had previously terminated pregnancies after she had “fallen pregnant to me in the past” and that such terminations took place “as neither of us wanted to have a child”.  Crucially, the respondent then said to the husband “I’m possibly not going to terminate the pregnancy unless you marry me”.  During the course of that same discussion and upon the husband asking her “why”, she replied “because we were meant for each other and I want to make sure that you don’t leave me again”.  The husband said to her “I don’t want to get married” and she replied “well, I’m not terminating the pregnancy unless we get married”.

6. The husband’s further evidence is that during ensuing weeks he unsuccessfully tried to convince the wife that she should terminate the pregnancy without the need for them to be married, however “she was adamant that she would not terminate the pregnancy unless we were married”.

7. The husband’s further evidence is:

   I only consented to that marriage because I felt I had no other choice in that the respondent would not terminate the pregnancy unless we were married.  The termination for the pregnancy was scheduled for … November 2010 and as indicated the marriage was on … November 2010.

8. The husband’s further evidence is that neither he nor the wife informed their parents of the marriage and two friends were the only persons present at the marriage ceremony.

9. The husband states that subsequent to date scheduled for the termination the wife said to him “I’ve had the termination now because we are married”.

10. The parties’ relationship continued until Christmas Day 2010.  The parties have lived separate and apart since that time.

11. The husband’s further evidence is that during the course of a telephone conversation between him and the wife, he said to her “You know I didn’t want to get married but you pressured me”.  The wife then said “I’m sorry, I never really intended it to be that way”.

12. The husband concludes his affidavit evidence by stating:

    “I say that but for the fact that the respondent would not terminate her pregnancy unless I married her I would never have married her.  I felt therefore there was nothing I could do but to marry her to ensure she undertook the termination.”  (Emphasis added)

13. I make findings in accordance with the husband’s affidavit evidence and in particular the critical elements of it, to which I have referred.  The husband’s evidence is detailed and plausible and it was not the subject of challenge or any contrary evidence.

Conclusion

1. I have considered the helpful written submissions made on behalf of the applicant which are persuasive.  I have determined to grant the decree of nullity as sought, albeit that this is a borderline case.  The result may well have been different had the application been defended.

2. I have followed the reasons for judgment of Lindenmayer J in Teves v Campomayor[4] which provides a review of the leading authorities and distils the relevant principles including the shifts in interpretation of “duress” which have occurred over many decades since the oft-quoted judgment of Collins J in Cooper v Crane[5].  It is well established that:

   “...it is duress at the time of the marriage ceremony that is crucial.  This can be induced by events before a marriage.  However, it is for the applicant to show, at the time he or she gave consent, that some overbearing force was operating.”[6]

   [4] (1995) FLC 92-578

   [5] (1891) P369 at 375-377

   [6] Teves v Campomayor, ibid at 81,731.

3. Lindenmayer J proceeded to hold that:

   “...it can be said that duress does not necessarily need to involve a direct threat of physical violence so long as there is sufficient oppression from whatever source, acting upon a party to vitiate the reality of their consent.”[7]

   [7] Ibid at 81,737

4. Subsequent first instance decisions have applied the principles as stated in Teves v Campomayer in circumstances which led the trial Judge to dismiss an undefended application.[8]  However, such judgments did not involve a departure from or a different interpretation of the principles to which I have referred, but rather ultimately it was a matter of the application of those principles to the particular facts in each case.

   [8] Ward & Carper [2010] FamCA 516.

5. The standard of proof is that which applies in all civil proceedings, namely reasonable satisfaction on the balance of probabilities.[9]

   [9] Teves v Campomayer, ibid at 81,731.

6. With some hesitation, I have concluded that duress has been established by the husband due to the unchallenged facts which lead to him entering into the marriage which of their nature in this particular case amounted to “sufficient oppression from whatever source” which acted upon him “to vitiate the reality” of his consent at the time of the marriage.[10]

   [10] Teves v Campomayer, ibid.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered on 10 June 2011.

Associate: 

Date:  10 June 2011