Ryba & Achthoven

Case [2024] FedCFamC1F 674

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Ryba & Achthoven [2024] FedCFamC1F 674

File number MLC 5946 of 2024
Judgment of WILSON J
Date of judgment 17 October 2024
Catchwords  FAMILY LAW – NULLITY – application for decree of nullity sought by the applicant – marriage contrary to s 23B of the Marriage Act – the wife asserts she was mistaken as to the nature of the ceremony – the respondent asserts it was a valid marriage – decree of nullity ordered.
Legislation

Family Law Act 1975 s 51

Marriage Act 1961 ss 23, 23B, 45

Cases cited AK v NC (2003) 32 Fam LR 16
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Alford & Lyden [2021] FamCA 38
Azmi & Shinde [2014] FamCA 824
Bown & Jalloh [2014] FamCA 785
Breust & Devine [2016] FamCA 892
Carroll & Sinclair [2011] FamCA 651
Catesby & Dhillon [2021] FedCFamC1F 124
Chirag & Karelka [2018] FamCA 476
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1951) 147 CLR 297
Damus & Anders [2024] FedCFamC1F 419
Fatisi & Hasila [2020] FamCA 209
Fern & Fern (No 2) [2021] FamCA 643
Gaffney & Sorenson [2023] FedCFamC1F 327
Galea v Galea (1990) 19 NSWLR 263
Garner & Lee [2011] FamCA 1000
GLJ v The Trustees of the Roman Catholic Church of the Diocese of Lismore (2023) 97 ALJR 857
Hill & Spiteri [2016] FamCA 1136
In the Marriage of Hosking (1994) 18 Fam LR 581
In the Marriage of Najjarin & Houlayce (1991) 14 Fam LR 889
In the Marriage of Osman & Mourrali (1989) 13 Fam LR 444
K & S Lake Freighters Pty Ltd v Gordon & Gotch Pty Ltd (1985) 157 CLR 309
Kelly v Kelly [1932] 49 TLR 99
Kevric & Nilsson [2024] FedCFamC1F 484
Kemal & Kemal [2017] FamCA 915
Khwaja v Sinha (2011) 46 Fam LR 309
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Ngo & Ngo [2010] FamCA 1053
Northern Territory v Collins (2008) 235 CLR 619
Oliver & Oliver [2014] FamCA 57
Pannos & Fotinos [2020] FamCA 102
Parsa & Hamidi [2023] FedCFamC1F 8
Pen & Vun [2021] FamCA 294
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Rabab & Rashad [2009] FamCA 69
Radtke & Pagano [2016] FamCA 784
Sarvari & Atapati [2017] FamCA 928
Sikander & Vashti [2018] FamCFC111
Sita & Bedi [2015] FamCA 1105
Taylor v Public Service Board (1976) 137 CLR 208
Valier v Valier (1925) 133 LT 830
Wagstaff v Wagstaff (2022) 65 Fam LR 461
Division Division 1 First Instance
Number of paragraphs 113
Date of last submission 10 October 2024
Date of hearing 4 October 2024
Place Melbourne
Counsel for the applicant Mr D. Goddard
Solicitor for the applicant GOZ Chambers Lawyers
Counsel for the respondent Mr R. Gray
Solicitor for the respondent BZN Lawyers

ORDERS

MLC 5946 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN

MS…

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Details
AGLC
Ryba & Achthoven [2024] FedCFamC1F 674
Case
[2024] FedCFamC1F 674
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the applicant, Ms Ryba, sought a decree of nullity of her marriage to Mr Achthoven. The crux of the dispute was whether the marriage was valid or if it should be declared null on the basis that Ms Ryba believed she was participating in an enactment of a marriage ceremony for social media purposes rather than a legally binding ceremony. The court found that Ms Ryba's belief about the nature of the ceremony was genuine and that she had not provided real consent to the marriage. The respondent argued that the marriage was valid and that Ms Ryba's application was an abuse of process. The court had to determine whether the marriage was void under s 23B(1)(d) of the Marriage Act because Ms Ryba's consent was not real due to her mistaken belief about the ceremony's nature.

The court found that Ms Ryba had discharged the onus of proving that her consent was not real due to her mistaken belief that she was acting in a social media video rather than participating in a legally binding marriage ceremony. The court considered various factors, including Ms Ryba's unfamiliarity with the celebrant, her attire, the absence of her family, and the short time between the proposal and the ceremony. These factors led the court to conclude that Ms Ryba's belief was reasonable and that she had not provided real consent. The court rejected the respondent's argument that Ms Ryba bore the onus of proving her mistake and that her application was an abuse of process. The court granted Ms Ryba's application for a decree of nullity, declaring the marriage void.

In summary, the court granted Ms Ryba's application for a decree of nullity of her marriage to Mr Achthoven, finding that her consent was not real due to her mistaken belief about the nature of the ceremony. The court rejected the respondent's arguments and ordered the parties to file affidavits and submissions regarding the costs of the proceeding. The final costs order will be determined based on the submissions provided.

Orders

Orders of the court

MLC 5946 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN

MS RYBA

Applicant

AND

MR ACHTHOVEN

Respondent

ORDER MADE BY

WILSON J

DATE OF ORDER

17 OCTOBER 2024

THE COURT ORDERS THAT –

1. The applicant’s application for a decree of nullity dated 21 May 2024 in respect of her December 2023 marriage is granted.

2. The applicant must file and serve any affidavit and submissions in support of her costs application by 4.00pm on 14 November 2024.

3. The respondent must file and serve any affidavit and submissions in opposition to the applicant’s application for costs by 4.00pm on 28 November 2024.

4. The question of costs will be determined thereafter on the papers.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons that follow, in my judgment the applicant made out the elements of s 23B(1)(d) of the Marriage Act and is therefore entitled to the order she seeks declaring her marriage to the respondent a nullity. SOME BACKGROUND ACCORDING TO THE APPLICANT At the date of the trial of this proceeding, the applicant was 24 years of age. She made two affidavits in support of her application for a declaration of nullity in this proceeding, namely, her affidavit made 12 September 2024 and her affidavit made 26 September 2024. According to the information in her affidavit made 12 September 2024, she first communicated with the respondent (it seems electronically – not face-to-face) on a dating platform in September 2023. They met in person at an address in Suburb B, Victoria the next day. The applicant and respondent attended a church in Melbourne in September 2023 after which they dined together at lunch (although she did not say whether alone or in company) thereafter departing for their respective homes. She deposed to regularly communicating with the respondent thereafter. The few events just described did not incorporate any discussion of marriage. For that matter, the few events just described revealed the briefest of exchanges between a man and a woman with very little beyond their Country D heritage in common. She did not depose to her citizenship – whether Country D, Australian or dually Country D and Australian. However she did depose to not knowing by September 2023 that the respondent had applied for a refugee visa and that, so she asserted, the respondent was looking for an Australian resident or permanent resident who could sponsor him to obtain permanent residency in Australia. The applicant deposed to travelling to Queensland in September 2024 to attend an event where she said she and the respondent had agreed to meet. She deposed to meeting the respondent in Queensland, although she gave no other details beyond the respondent accompanying her, the duration of that meeting and in particular, the context of their discussions. She did not depose to whether the relationship at that point was platonic or romantic. The applicant deposed to spending time with the respondent after the trip to Queensland. She said he told her he wanted to take her to visit Sydney. She said she gladly accepted. She said they travelled to Sydney in December 2023. The applicant alleged she and the respondent travelled to Sydney in order to attend a party she called a “white party”. She gave evidence that the respondent told her she needed to bring with her to Sydney a white dress in order to attend the white party. She said the respondent refused to give details to her of the white party he said they were to attend. She did not depose to how they travelled to Sydney (I assume by air although that was not stated) nor the accommodation arrangements while in Sydney. She needed to change clothes because she deposed to dressing up for the white party. She said that she was shocked (her word) to find out when arriving at “the venue” (wherever that was) because she found out for the first time that the respondent had “organised a wedding for us” (her words).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Some endeavour was made to suggest that the respondent was marrying the applicant with a view to improving his migration status. He denied any such suggestion. In any event while the applicant faintly adduced evidence on point the issue was not seriously pursued. I am unwilling to make any findings on point. It is sufficient to rest my decision on the wording of s 23B(1)(d)(ii) of the Marriage Act, which I do.CONCLUSION For those reasons I make a declaration that the marriage between the applicant and the respondent in late December 2023 at a venue in the state of New South Wales is void. I grant a decree of nullity in relation to that marriage. In respect of the costs order sought in paragraph two of the applicant’s initiating application dated 8 May 2024 I order – (a)the applicant must file and serve any affidavit and submissions in support of her costs application by 4.00pm on 14 November 2024;(b)the respondent must file and serve any affidavit and submissions in opposition to the applicant’s application for costs by 4.00pm on 28 November 2024; and(c)the question of costs will be determined thereafter on the papers.

Ratio Decidendi

Legal Principle Established

Mr Goddard submitted that a presumption existed that the recording of the marriage (on the certificate of marriage) is correct and so the applicant bore the onus of proof as to her mistake. He submitted[43] that the relevant issue was whether the parties engaged in the marriage ceremony intending to marry and intending to marry “that person”, as defined. Mr Goddard submitted that the evidence about mistake by an applicant was entirely subjective. Mr Goddard submitted that the applicant should be accepted in her evidence that she and the respondent did not live together upon their return from Sydney after the alleged ceremony in late December 2023. He also submitted that the application to commence this proceeding was filed in July 2024, that is to say seven months after the alleged wedding. In answer to my question about whether any formal defects existed in documentation,[44] Mr Goddard said the evidence revealed that the applicant did not sign the notice of intended marriage.[43] T 9 L 36.[44] T 16.CONSIDERATION In my judgment the applicant discharged the onus of proof in this case in respect of her plea that her alleged marriage to the respondent in late December 2023 was a nullity by reason of her consent not being real consent on the basis that she was mistaken as to the nature of the ceremony performed. In essence, the applicant’s evidence was that she believed she was participating as an actor in a video presentation of a marriage ceremony the respondent intended to use as part of his social media activities. I accept Mr Goddard’s characterisation of the applicant’s behaviour during the impugned marriage ceremony namely that the applicant was acting the part of the bride in an endeavour to make credible the respondent’s social media work. Whether or not the applicant’s belief about the nature of the wedding ceremony was founded on reasonable grounds is irrelevant. The subjective state of mind of the applicant is key. Here, I am persuaded on the balance of probabilities that the applicant was mistaken about the nature of the ceremony performed. She believed she was acting. She called the event “a prank”. It made perfect sense for her to adopt the persona of a bride in all things at the impugned ceremony so as to enhance the credibility of the video depicting a legally valid marriage. She had not met the celebrant prior to the date of the alleged ceremony, she had not signed the notice of intended marriage, she did not wear a bridal gown and instead she wore a plain white dress. No member of her family was present. And the alleged ceremony took place in less than two days after the applicant accepted the respondent’s proposal of marriage. That is not to say that people sometimes marry in accelerated circumstances. But no evidence was led to the effect that the applicant was driven to marrying in accelerated circumstances. The essence of the applicant’s case is that she believed she was participating in some form of enactment of a ceremony of marriage in which she played the bride, akin to an actress playing a role in front of a camera. To my mind, there is no fault in reasoning or in the logic of her contentions in that regard. She believed that the respondent was a social media influencer who had asked for her help to promote his social media work. She was told to bring a white dress while travelling in Sydney, which she did. She was not told to obtain a bridal gown. She did not have her family members present to witness the event on the date of the alleged ceremony. All those factors demonstrated to me that the applicant did not provide real consent to her participation in the impugned ceremony of marriage in late December 2023.