SARKAR & SARKAR
[2020] FamCA 305
•30 April 2020
FAMILY COURT OF AUSTRALIA
| SARKAR & SARKAR | [2020] FamCA 305 |
| FAMILY LAW – NULLITY – Where the wife alleges her consent was not proper because of duress or fraud – Where discussion of applicable principles – Where evidence insufficient to establish ground of nullity – Where application dismissed |
| Family Law Act 1975 (Cth) s 51 Marriage Act 1961 (Cth) s 23B |
| Hallas & Kefalos [2012] FamCA 860 Kokl (1981) FLC 91-078 Re S (1980) FLC 90-820 Teves III and Campomayor [1994] FamCA 57; (1995) FLC 92-578 |
| APPLICANT: | Ms Sarkar |
| RESPONDENT: | Mr Sarkar |
| FILE NUMBER: | PAC | 3372 | of | 2019 |
| DATE DELIVERED: | 30 April 2020 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 9 April 2020 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Zoutendijk of Bell Lawyers |
| RESPONDENT – SELF-REPRESENTED LITIGANT: | No appearance |
Orders
The wife’s Application for Declaration of Nullity filed on 18 July 2019 be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sarkar & Sarkar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3372 of 2019
| Ms Sarkar |
Applicant
And
| Mr Sarkar |
Respondent
REASONS FOR JUDGMENT
This is an application filed by the wife on 18 July 2019 seeking a declaration of nullity in relation to her marriage to the respondent husband. The marriage was solemnised by a civil celebrant in May 2019 in Victoria, Australia.
By way of background, the wife was born in 1993 and is now 27 years of age and the husband, born in 1989, is now 30.
On 4 December 2019 an order for substituted service of the application was made facilitating the wife effecting service by forwarding a sealed copy of the application to Suburb B in Victoria, being an address obtained by the wife’s solicitor from the husband and one at which the parties lived with members of the husband’s family prior to separation. Service was effected in accordance with orders on 10 December 2020.
The husband filed no documents in response to the wife’s application and it was noted at a hearing before a Registrar on 30 January 2019 that the husband previously advised that he was leaving Australia on 8 January 2020 which the wife’s solicitor suspected to be the result of his Visa expiring.
In these circumstances, the Court was satisfied that it was appropriate for the matter to proceed on an undefended basis.
The Wife’s evidence
The wife relies upon her affidavit dated 18 July 2019 filed in support of her application.
The parties met online in February 2019 and the wife agreed to meet with the husband in person shortly thereafter. At the time, the wife lived in New South Wales and the husband in Victoria.
Upon visiting the husband the wife deposes that discussions were had between them regarding arrangements for a marriage to take place and that she insisted that the marriage occur at a later date in order for the parties to “get to know each other better”. She further asserts that when asked if he had been married before, the husband had told her that he had not been.
Two weeks after discussing marriage arrangements, the wife relocated to Victoria to facilitate the parties’ relationship. She commenced living with the husband in a home shared with his brother, sister-in-law and cousin and asserts feeling isolated from her own family during this time in large due to their disapproval of her relationship with the husband.
In the course of finalising the marriage application form in April 2019 the wife discovered that the husband had been previously married and divorced. She deposes that although she felt upset that the husband had lied to her she “did not feel that I had any choice but to proceed with the marriage”.
The marriage was originally organised to take place in June 2019. The wife had agreed to this date as she claims it allowed her more time to settle into her relationship with the husband and attempt to contact her family from whom she was at that point estranged.
It is the wife’s case that the husband soon after urged that the marriage ceremony be conducted on an earlier date. After suggesting the possibility that the marriage occur in 2019, the wife states that the husband became “very angry and upset and began yelling at me” stating words to the effect of “What the fuck? Why can’t we do it earlier? Call them up and yell at them to try and get an earlier date”. According to the wife, the husband became increasingly aggressive and when asked to explain the urgency in having the marriage date changed the husband is said to have insisted that “[m]y brother doesn’t want us living here without being married”. The wife claims feeling frightened and concerned for her safety amidst this conversation with the husband and as a result “went along with what he said”.
On 27 April 2019 the wife deposes feeling trapped and scared of the husband. She also contends that during this time she had been engaged in a mental health treatment plan (having been diagnosed with schizo-affective bipolar disorder in around 2012/2013) and as a result of being unable to cope in the husband’s household had made attempts to seek alternative accommodation through a mental health line and a refuge centre. Ultimately, she remained living in the husband’s household as she “felt that I did not have any ability to remove myself from the situation and felt that I was stuck where I was living”.
The marriage date was then brought forward in 2019.
The parties married in May 2019, although it is the wife’s contention that as she had no contact with her family at the time and in the absence of any social relations in Victoria she felt that this was “the only way forward”.
Not long after the marriage ceremony in May 2019 the wife deposes that the husband insisted that the parties attend upon an immigration agent and seek advice. The wife claims that the husband soon revealed to her that he was on a student visa and needed sponsorship and not a permanent resident as what he had maintained when they first met. The wife proceeded with the appointment with the immigration agent and deposes to being “upset and annoyed … because I felt that he had lied to me throughout the time that I had known him”. Later that day the wife confronted the husband and the conversation that followed is extracted below:
[W]:Why did you lie to me, if you had told me the truth from the outset I would not be upset now.
[H]:I thought you wouldn’t be with me, I thought you would leave. I thought you would think that I was with you just to get sponsorship.
[W]:You are just with me to get sponsorship, that is it. Once you get that you are going to run.
Two days later the parties separated.
Although the wife left the husband’s home at separation, the parties spent a further two nights together at hotel accommodation since the wife claims she was “alone and afraid”. During this time, the wife states that the husband continued to urge her to sign paperwork for his visa application.
It appears the parties separated on final basis on 21 May 2019 when the wife arranged for her parents to collect her. On that date the wife returned to her hometown.
In further support of her application, the wife contends that on several occasions the husband and members of his family with whom the parties lived perpetrated family violence towards her. It is her evidence that the father displayed aggressive behaviour towards her even as early as when they first met. She also asserts that throughout their relationship she experienced constant berating and criticisms from him and his family who had also become controlling with respect to domestic affairs. The abusive language said to have been used by the husband towards the wife included words to the effect of “retarded” “stupid” and “why did I end up with a fat woman?”
The Law
The application of the wife before the Court for a declaration of nullity of marriage is made pursuant to s 51 of the Family Law Act 1975 (Cth), and that provision provides that:
An application under this Act for a degree of nullity of marriage shall be based on the ground that the marriage is void.
The grounds on which a marriage is void is set out in s 23B of the Marriage Act 1961 (Cth), which provides, relevantly, as follows:
(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:
(a)either of the parties is, at the time of the marriage, lawfully married to some other person;
(b)the parties are within a prohibited relationship;
(c)by reason of section 48 the marriage is not a valid marriage;
(d)the consent 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 is mentally incapable of understanding the nature and effect of the marriage ceremony; or
(e)either of the parties is not of marriageable age,
and not otherwise.
The ground relied upon by the wife is s 23B(1)(d)(i), that is, that the marriage was obtained by duress or fraud.
In Re S (1980) FLC 90-820 Watson SJ said as follows:
The emphasis on terror or fear in some of the judgments seems unnecessarily limiting. A sense of mental oppression can be generated by causes other than fear or terror.
He went on to say that:
If there are circumstances which taken together lead to the conclusion that because of the oppression a particular person has not exercised a voluntary consent to marriage that consent is vitiated by duress and is not real consent. This is so however the oppression arises and irrespective of the motivation or propriety of any person solely or partially responsible for the oppression.
Later, his Honour said:
... It is the effect of the oppression on his mind that should be the operative factor, not the form of such oppression.
Subsequently in Kokl (1981) FLC 91-078 the Court said in relation to duress such as to render a marriage a nullity was duress that meant:
The compulsion of a person by physical or mental harm.
In Teves III and Campomayor [1994] FamCA 57; (1995) FLC 92-578 Lindenmayer J said:
The cases that I have already made reference to make it clear that it is duress at the time of the marriage ceremony that is critical. Clearly this can be induced by events prior to it, but in the end it is for the applicant to show that at the time she gave her consent at the ceremony, some overbearing force was operating. In this, evidence about the ceremony, and events occurring during and immediately before or after it, can be extremely important.
As was said by Ryan J in Hallas & Kefalos [2012] FamCA 860:
The standard of proof, having regard to the gravity of the application is determined having regard to section 140(2) of the Evidence Act 1995. Assertions, conclusions, indefinite testimony and indirect inferences are thus insufficient to ground a finding of fact.
Discussion
In terms of the application of the facts as asserted by the wife, the wife asserts that she was forced into the marriage. As discussed above, at various stages prior to getting married and shortly thereafter the wife deposes to feeling vulnerable and on several occasions pressured by the husband in the context of family violence allegedly perpetrated by him.
Although she also argues that the marriage was perhaps arranged for an ulterior motive of obtaining Australian residence status for the husband, the wife’s evidence does not lead to the conclusion that at the time of the actual ceremony itself she did not know precisely that she was being married to the husband or that at the time of the marriage she had doubt as to the nature and effect of her consent to participate in that ceremony because of some overbearing force.
Particularly in light of the evidence that she herself had readily relocated to Victoria to facilitate the parties’ relationship, “completed the necessary paperwork to apply for a marriage licence” and had called the Marriage Registry to sort out an earlier date which had been suggested by her (albeit at the husband’s request), there is little evidence to support the conclusion that she was an unwilling participant at the time of the ceremony in 2019 such that she had not exercised voluntary consent to marriage or was not, at the very least, of the understanding of the nature of the documents signed for the purposes of obtaining a marriage certificate.
Further, the general tenor of the wife’s evidence regarding her mental health is that during the period that she lived with the husband and as a result of such living environment her mental health “was deteriorating”. It cannot be found, however, that the specific arrangements of the marriage were not known to the wife at the time she entered into the marriage ceremony given in the weeks preceding she had been proactive in making enquiries about the marriage application and had subsequently “made some notes” about what was necessary for the marriage to proceed.
In all of the circumstances, the wife has not satisfied the Court that the marriage ceremony itself was obtained by duress or fraud as contemplated by s 23B of the Marriage Act 1961 (Cth).
Accordingly, the application for declaration of nullity is dismissed.
I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 30 April 2020.
Associate:
Date: 30 April 2020
0