FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Salib & Bitar [2025] FedCFamC1F 92
File number(s): PAC 4044 of 2024 Judgment of: ANDERSON J Date of judgment: 21 February 2025 Catchwords: FAMILY LAW – NULLITY – Where a decree of nullity is sought – Duress claim – No matters of principle Legislation: Family Law Act 1975 (Cth), s 4AB, s 51
Marriage Act 1961 (Cth), s 23B(1)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021, r 6.17, r 8.15(3)(e)
Cases cited: Azmi & Shinde [2014] FamCA 824.
Berrell & Berrell (No 2) [2013] FamCA 900.
Clifton v Kerry J Investments and Ors [2020] FCAFC 5.
Cooper (falsely called Crane) v Crane [1891] P 369.
In the Marriage of S (1980) FLC 90-820.
Patel & Noora [2019] FCWA 260
Teves and Campomayor (1995) FLC 92-578.
Division: Division 1 First Instance Number of paragraphs: 45 Date of hearing: 10 February 2025 Counsel for the Applicant: Ms Finch Solicitor for the Applicant: Infinity Law Group Solicitor for the Respondent: Mr Rish of Calculus Legals ORDERS
PAC 4044 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SALIB
Applicant
AND: MR BITAR
Respondent
Date of hearing: 10 February 2025 ORDER MADE BY:
ANDERSON J
DATE OF ORDER:
21 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The applicant’s Initiating Application filed 9 August 2024 be 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).
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Salib & Bitar has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE ANDERSON
INTRODUCTION
On 9 August 2024, the applicant wife (“the wife”) filed an Initiating Application seeking a declaration that the marriage entered into between her and the respondent husband (“the husband”) in mid-2021 is a nullity.
The wife seeks such a declaration on the grounds that her consent to the parties’ marriage was not a “real consent” within the meaning of the Marriage Act 1961 (Cth) (“the Marriage Act”) such consent having been vitiated by duress.
For the reasons discussed below, I dismiss the wife’s application.
EVIDENCE
In support of her application, the wife read the following documents:
(a)Affidavit of the wife filed 20 December 2024;
(b)Affidavit of the wife’s mother filed 20 December 2024; and
(c)Tendered documents.[1]
[1] Exhibit W1.
The husband…
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- Case
- [2025] FedCFamC1F 92
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CaseChat Overview and Summary
In the Federal Circuit and Family Court of Australia, the case of Salib v Bitar involved the applicant, Ms Salib, seeking a decree of nullity on the grounds of duress. The respondent, Mr Bitar, contested the application. The central issue for the court was whether Ms Salib's consent to the marriage was vitiated by duress as claimed by her. Ms Salib alleged that her consent was not genuine due to a history of family violence and threats made by Mr Bitar, particularly around the time of the marriage.
The court examined various allegations of family violence and threats made by Mr Bitar, including physical and verbal abuse, financial control, and threats to share intimate images. However, the court found that the evidence provided by Ms Salib was not strong enough to substantiate her claims of duress. Notably, the court highlighted that the SMS text messages exchanged between the parties before the marriage conveyed excitement and a genuine desire to marry, contradicting the wife's duress claims. The court concluded that there was insufficient evidence to support the wife's assertion that her will was overborne by the husband, and thus, dismissed the application for a decree of nullity.
The court ordered that Ms Salib's initiating application filed on 9 August 2024 be dismissed. This decision was made on 21 February 2025 by Anderson J, and the form of the order is subject to entry in the Court’s records.
The court examined various allegations of family violence and threats made by Mr Bitar, including physical and verbal abuse, financial control, and threats to share intimate images. However, the court found that the evidence provided by Ms Salib was not strong enough to substantiate her claims of duress. Notably, the court highlighted that the SMS text messages exchanged between the parties before the marriage conveyed excitement and a genuine desire to marry, contradicting the wife's duress claims. The court concluded that there was insufficient evidence to support the wife's assertion that her will was overborne by the husband, and thus, dismissed the application for a decree of nullity.
The court ordered that Ms Salib's initiating application filed on 9 August 2024 be dismissed. This decision was made on 21 February 2025 by Anderson J, and the form of the order is subject to entry in the Court’s records.
Orders
Orders of the court
PAC 4044 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS SALIB
Applicant
AND:
MR BITAR
Respondent
Date of hearing:
10 February 2025
ORDER MADE BY:
ANDERSON J
DATE OF ORDER:
21 FEBRUARY 2025
THE COURT ORDERS THAT:
1. The applicant’s Initiating Application filed 9 August 2024 be 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).
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
In Hamwi & Omar [2012] FamCAFC 174, the Full Court referred more accurately to whether the wife’s will had been “overborne”.[7] Similarly, in Sarvari & Atapati [2017] FamCA 928 at [15], the Court considered whether the will of a spouse had been overborne.[7] Hamwi & Omar [2012] FamCAFC 174 at [28].RELEVANT FACTS AND DETERMINATION The parties met on social media in 2020[8] and married in mid-2021. They lived with each other for a number of weeks prior to separating on 26 July 2021.[9] [8] Wife’s Affidavit filed 20 December 2024, paragraph 4.[9] Wife’s Affidavit filed 20 December 2024, paragraph 3. The wife asserts that she did not provide her “real consent” to the marriage. There are two limbs to the argument advanced by the wife:(a)Firstly, that her relationship with the husband was characterised by family violence and that such violence placed her under duress such that she was incapable of consenting to the parties’ marriage in mid-2021;(b)Secondly, that on the day of the marriage ceremony, the husband placed her under duress such that she was incapable of consenting to the parties’ marriage.Was the wife’s consent to the parties’ marriage vitiated by family violence perpetrated by the husband? The wife asserts that the husband would “physically and verbally abuse [her] daily”.[10] The wife relies on her allegations of family violence to ground her application to the effect that she did not provide “real consent” to the marriage. The particulars of the wife’s allegations as to family violence are as follows:[10] Wife’s Affidavit filed 20 December 2024, paragraph 7.(a)The wife says that when the parties met in 2020, she was working on a part-time basis in retail in circumstances where she was uncertain as to her career and study plans.[11] She says that the husband forced her to leave that employment and make an application to work in a corporate role as this would be beneficial to her from a financial perspective. The wife did so and says that she commenced employment in a corporate role in 2021.[12] The husband was not cross-examined with respect to this allegation. It is his written evidence that he encouraged the wife to “get a better job for [a] better future”.[13] This evidence did not persuade me to make any finding that the husband sought to control the wife by forcing her to work at any institution where she did not wish to work. Further, I note that at the time of trial, the wife described herself as a professional and this being so, I infer that at least in the period subsequent to separation, the wife has been satisfied to remain in a corporate role;[11] Wife’s Affidavit filed 20 December 2024, paragraph 18.[12] Wife’s Affidavit filed 20 December 2024, paragraph 19.[13] Husband’s Affidavit filed 7 January 2025, paragraph 8.(b)Between early and mid-2021, the husband forced her to transfer a sum of approximately $2,000.00 to his bank account.[14] The husband was not cross-examined about this allegation nor was he cross-examined on any other form of financial control. Accordingly, I was unable to make a finding that the husband denied the wife financial autonomy or otherwise forced her to transfer monies to him;[14] Wife’s Affidavit filed 20 December 2024, paragraph 21.(c)In late 2020, the husband messaged the wife’s parents after finding the number of the wife’s mother on her telephone. The wife says that:(i)she took umbrage at the husband poaching her mother’s mobile telephone number from her telephone and thereafter, messaging her mother without her consent[15]; and[15] Wife’s Affidavit filed 20 December 2024, paragraph 15.(ii)on confronting the husband about his conduct, the husband slapped the wife and their argument escalated.[16][16] Wife’s Affidavit filed 20 December 2024, paragraph 17.The husband was not cross-examined by the wife’s counsel with respect to this allegation and the husband does not refer to it in his Affidavit filed 7 January 2025. Absent any cross-examination with respect to this event, the evidence is not strong enough for me to make any factual finding with respect to the alleged assault of the wife in late 2020. Further, the alleged event occurred some months prior to the marriage ceremony in mid-2021. This being so, I do not consider that an examination of the events, which occurred in late 2020 are relevant to my determination about whether the wife’s consent to the marriage was vitiated by duress in mid-2021. Certainly, this evidence does not permit me to find that the wife was oppressed at the time of her marriage to the husband;(d)In early 2021, the wife says that she and the husband had an argument about her choice of clothing and that this led to the husband grabbing her and slapping her.[17] The husband was not cross-examined by the wife’s counsel with respect to this allegation. Again, the evidence is not strong enough for me to make any factual finding that the alleged assault of the wife in early 2021 in fact occurred;[17] Wife’s Affidavit filed 20 December 2024, paragraph 10.(e)On several occasions in 2021, the husband would denigrate the wife by calling her a “fat pig”.[18] The husband conceded during his oral evidence that prior to the parties’ marriage he would denigrate the wife by making comments about her weight and physical appearance. Given the husband’s concession, I find that the husband perpetrated family violence by making derogatory taunts of the wife;[19] [18] Wife’s Affidavit filed 20 December 2024, paragraph 12.[19] Family Law Act 1975 (Cth), s4AB(2)(d).(f)In early 2021, and in response to his dissatisfaction with the manner in which the wife was driving, the wife says that the husband “hit [her] across the head [and] punched [her] in the arm”. The wife also says that the husband screamed at her and said:I don’t like the way you’re driving. You accelerated too hard. How many times do I have to explain the same thing to you…do you want me to send your family those photos and videos and you will be the reason why your old, aged mother would die?[20][20] Wife’s Affidavit filed 20 December 2024, paragraph 28.The husband was not cross-examined with respect to this precise event although he was cross-examined about his threat to send lewd photographs and video recordings of the parties performing sexual acts to the wife’s family members if she refused to marry him. I refer to this topic below. The evidence is not strong enough for me to make any factual finding that the alleged assault of the wife in early 2021 occurred;(g)In mid-2021, the husband brought up the topic of marriage. The wife says that she considered herself too young to get married and advised the husband accordingly. As a consequence of this discussion, the wife says that:(i)the husband slapped her across the face multiple times.[21] Although the husband was not asked about this precise event, he did concede under cross-examination that prior to the parties’ marriage in mid-2021, he did slap the wife on one occasion;[21] Wife’s Affidavit filed 20 December 2024, paragraph 24.(ii)the husband threatened to send to the wife’s “whole family” and her mother photographs of the wife depicted in a naked state and a video of the parties having sex. The wife says that the photographs and video were taken without her consent.[22] [22] Wife’s Affidavit filed 20 December 2024, paragraph 24.The husband said during his oral evidence that any lewd images and videos were only recorded subsequent to the parties’ marriage. He also said that the images were taken by the parties consensually during sexual activity. I discuss this topic in further detail below;(h)As a consequence of the threats made in mid-2021, the wife says that:(i)In June 2021, she attempted self-harm “but the knife was blunt and did not harm me”.[23] The husband in his oral evidence said that he had no knowledge of the attempted self-harm;[23] Wife’s Affidavit filed 20 December 2024, paragraph 25.(ii)In mid-June 2021, she “tried to jump out of my balcony” but could not bring herself to do it. The husband denied that this occurred. He said that that the parties were at work on that date in June 2021 and accordingly, the wife could not have attempted to end her life in the manner so described;(iii)In about late June 2021, she “tried to ingest rat poison” but could not put it in her drink as she “was scared”.[24] In his oral evidence, the husband denied that rat poison was ever kept at the former matrimonial home.The wife’s evidence was not strong enough to permit a factual finding that she attempted self-harm on three occasions in June 2021. Further, and for the reasons discussed below, I have formed a view that the wife was excited by the prospect of her marriage to the husband. This is despite the fact that for reasons known only to the wife, she kept the prospect of her marriage to the husband a secret from her mother;(i)On several occasions prior to the parties’ marriage in mid-2021, the wife tried to end the parties’ relationship. The wife says that on a date and time unspecified, she had a conversation with the husband in the following terms:Wife: This is not working. I don’t want to be with you anymore.Husband:You know I have nude photographs and videos of you. I will show them to your family and friends and put them online. Your reputation will be ruined in the community and your mum will have a heart attack or stroke.The husband denied this allegation by dint of his assertion that any photographs and/or video recordings of the parties performing sexual acts were only take subsequent to the parties’ marriage and taken on a consensual basis.[24] Wife’s Affidavit filed 20 December 2024, paragraph 25.
Evidence
Evidence Before The Court
For the reasons discussed below, I dismiss the wife’s application.EVIDENCE In support of her application, the wife read the following documents:(a)Affidavit of the wife filed 20 December 2024;(b)Affidavit of the wife’s mother filed 20 December 2024; and(c)Tendered documents.[1][1] Exhibit W1. The husband relied on:(a)Affidavit of the husband sworn 12 September 2024 but filed 7 January 2025; and(b)Tendered documents.[2][2] Exhibits H1 to H6. The wife’s counsel objected to the admission into evidence of the husband’s Affidavit filed 7 January 2025 on the basis that the document was not filed in accordance with an Order made by a Judicial Registrar on 17 October 2024 regulating the parties’ preparation for Trial. I overruled the objection in circumstances where the wife’s legal representatives had been seized of the document for about five weeks and were unable to identify any prejudice to the conduct of the wife’s application. Further, and on 6 February 2025, being three days prior to the commencement of the Trial, the husband’s solicitor produced fourteen pages of SMS text messages, which were ostensibly exchanged between the parties. The wife’s counsel opposed leave being granted to the husband to rely upon those messages. The objection of the wife’s counsel was made on the basis that:(a)Given the late disclosure of the SMS text messages, it had been an impossible task for him to obtain instructions from the wife prior to the commencement of the trial;(b)The wife did not send the text messages referred to by the husband and accordingly, the wife had lost the opportunity to forensically examine the husband’s mobile telephone. Whilst I was aware of the terms of r 6.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) and jurisprudence relating to the operation of that rule,[3] I overruled the objection of the wife’s counsel. I did so in circumstances where:(a)By her Affidavit filed 20 December 2024, the wife asserted that various SMS text messages referred to in the husband’s earlier Affidavit material whilst ostensibly sent by her were in fact sent by the husband, unbeknown to the wife.[4] Particularly, the wife asserted that the husband would access her mobile telephone and send messages to his own phone in an attempt to create an impression that the wife consented to the marriage. It follows that as early as mid-December 2024, the wife by her own Affidavit material had challenged the authenticity of SMS text messages disclosed by the husband but had otherwise failed to undertake any forensic analysis to prove the same. Further, the wife’s counsel was unable to explain how an examination of the husband’s mobile telephone might assist the wife’s case in circumstances where it was the wife’s assertion that the husband had in fact accessed her mobile telephone to send SMS text messages to himself and thereafter delete the messages;(b)I provided the wife with an opportunity to consider the fourteen pages of SMS text messages and to thereafter, provide her counsel with instructions.[3] For example, Berrell & Berrell (No 2) [2013] FamCA 900 per Kent J; Patel & Noora [2019] FCWA 260 per O’Brien J; Clifton v Kerry J Investments and Ors [2020] FCAFC 5.[4] Wife’s Affidavit filed 20 December 2024, paragraphs 42 to 43.
Decision
Reasons for decision
Again, and for the reasons discussed above, I find the wife’s version of events to be implausible. The SMS text messages exchanged between the parties in the days leading up to the marriage ceremony convey excitement on the part of the wife and a genuine desire to marry the husband.CONCLUSION In the present case, there is insufficient evidence for me to find that the wife was acting under duress when she married the husband in mid-2021. Instead, and for the reasons discussed, I find that the wife was excited by the prospect of marriage and for reasons known only to her, sought to keep the marriage a secret from her mother. The evidence led by the wife is not such that I can conclude that the wife’s will was overborne by the husband. Ultimately, I am not persuaded on the evidence as presented, that on the balance of probabilities the wife entered into the marriage as a result of duress within the meaning of s 23B(1)(d)(i) of the Marriage Act. I must therefore dismiss the application.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.