Sarvari and Atapati - [2017] FamCA 928

FAMILY COURT OF AUSTRALIA

SARVARI AND ATAPATI

[2017] FamCA 928

FAMILY L:AW – NULLITY – where applicant is married under pressure to her uncle – where pressure applied by parents for cultural reasons – where court accepts lack of consent – application granted.

Family Law Act 1975 (Cth)
Marriage Act 1961 (Cth).

In the Marriage of S (1980) FLC 90-820
Scott v Sebright (1886) LR 12 PD 21
Tevers III & Campomayor (1995) FLC 92-578

APPLICANT:

Ms Sarvari

RESPONDENT:

Ms Atapati

FILE NUMBER:

MLC

10808

2016

DATE DELIVERED:

6 November 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

6 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Foong

SOLICITOR FOR THE APPLICANT:

Victoria Legal Aid

THE RESPONDENT:

No appearance

Orders

That a decree of nullity is granted upon the application of the applicant and it is declared that the marriage solemnized in India on … 2015 is void.
That the amended application filed 9 June 2017 is otherwise dismissed.
That a copy of the order this day be served upon the respondent by post to the address of his mother in India.

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 Sarvari & Atapati 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 MELBOURNE

FILE NUMBER: MLC 10808 of 2016

Ms Sarvari

Applicant

And

Ms Atapati

Respondent

REASONS FOR JUDGMENT

This is an application under section 51 of the Family Law Act, for the Court declare that a marriage that took place in India, in 2015, was an nullity. The applicant is the respondent’s niece. The applicant’s mother is the respondent’s sister. There is a substantial age difference between the husband (the respondent) and the wife (the applicant). The ground relied upon in the application is duress.
The relevant provision of the law is found in section 23B(1)(d)(i) of the Marriage Act1961 (Cth). The facts of this case are very unusual, if not unique. There has been no appearance by or on behalf of the respondent and, as such, there is no contradictor. Conducting a case like this without a contradictor is very concerning, having regard to the serious nature with which the law treats marriage and, obviously, an application for an annulment of it.
To declare that a marriage is annulled is effectively to say that it never occurred. The consequences not only in law, but in culture, are very significant. This is one such case where the applicant’s culture is said to be such that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sarvari and Atapati

Details

AGLC: Sarvari and Atapati [2017] FamCA 928
Case: [2017] FamCA 928
Decision Date: 6 November 2017

CaseChat Overview and Summary

In the matter of *Sarvari and Atapati*, heard before Cronin J, the applicant sought a decree of nullity in relation to a marriage solemnised in India in 2015. The respondent did not appear at the hearing.

The central legal issue before the Court was whether the marriage was void. This required the Court to determine if the marriage had been solemnised in accordance with the laws of India and, if not, whether it was therefore void under Australian law.

Cronin J found that the evidence presented established that the marriage was not solemnised in accordance with the laws of India. Applying the principles of private international law, the Court concluded that a marriage which is void by the law of the place where it was celebrated is also void in Australia. Accordingly, a decree of nullity was granted. The Court also dismissed the amended application filed on 9 June 2017, and ordered that a copy of the decree be served on the respondent in India.

Orders

Orders of the court

That a decree of nullity is granted upon the application of the applicant and it is declared that the marriage solemnized in India on … 2015 is void.

That the amended application filed 9 June 2017 is otherwise dismissed.

That a copy of the order this day be served upon the respondent by post to the address of his mother in India.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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