Sasani and King (No. 3)

[2014] FamCA 910

FAMILY COURT OF AUSTRALIA

SASANI & KING (NO. 3) [2014] FamCA 910

FAMILY LAW – NULLITY - Application based on mistake as to the nature of the ceremony – Uncontested evidence – Breach of the laws of Australia – Referral of papers to Attorney-General.

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

APPLICANT: Ms Sasani

RESPONDENT: Mr King

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 6028 of 2013

DATE DELIVERED: 2 September 2014

PLACE DELIVERED: Melbourne

PLACE HEARD:

JUDGMENT OF: Cronin J

HEARING DATE: 2 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Boden

SOLICITOR FOR THE APPLICANT: Starnet Legal Pty Ltd

THE RESPONDENT: No appearance

Orders

1. That the applicant have leave to proceed in the absence of the respondent.

2. That the marriage between MS SASANI to MR KING solemnized on … March 1997 at B Street, Suburb P is declared to be void.

3. That the application filed on 23 July 2013 by the applicant is otherwise dismissed.

4. That the reasons this day be transcribed.

5. That the Registry Manager refer the reasons this day, the order made on 2 September 2014 and the affidavits of MS SASANI filed 23 July 2013 and that of MR KING filed 2 September 2014 to the Attorney-General for the Commonwealth of Australia for consideration as to whether any of the laws of Australia have been broken.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sasani & King (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6028 of 2013

Ms Sasani

Applicant

And

Mr King

Respondent

REASONS FOR JUDGMENT

1. On 23 July 2013, Ms Sasani, to whom I shall refer to as “the applicant”, filed an application in this Court simply seeking an order under the Family Law Act 1975 (Cth) (“the Act”) granting a decree of nullity of marriage. Section 51 of the Act provides the jurisdictional basis for such an order to be made.

2. Before dealing with the substantive application, I need to address the question of procedural issues.  This case has been before the Court on a number of occasions;  those were in September 2013, November 2013, January 2014, February 2014, and April 2014. 

3. In February 2014, the matter was before me, and I indicated at the time that I was not comfortable about hearing it in the absence of service upon the respondent, who for all intents and purposes is the husband at law.  I adjourned the matter and, on the basis of the information set out in the affidavit material at that time, ordered two things:  first, that the order I made on that date and the reasons for judgment be served personally on the respondent husband care of his cousin.  The cousin was referred to in the applicant’s affidavit;  secondly, that the applicant have leave to issue a subpoena to the cousin to give oral evidence on the return date on the basis that if the cousin was reticent about telling the applicant, or indeed, the Court where the respondent was, he might provide some assistance.  Not much happened save to say that the applicant has given evidence today that she has spoken to the respondent after what appears to be a fairly diligent hunt for him. 

4. I also have an affidavit today from a Kate Chong, who is a legal practitioner in the employ of the solicitors for the applicant.  That affidavit sets out a list of documents that were sent backwards and forwards by post to the respondent.  Eventually, the respondent returned a letter saying that there was no acknowledgement of service documents and prepaid envelope in the letter that had been sent to him, and he then wrote the following:

   So I am making you aware that I have received your documents and would be more than happy to see this nullified, considering the circumstances when this took place.

5. Today a further affidavit has been tendered to the Court in which the respondent has said that he agrees to the order sought by the applicant on the basis that he agrees with the facts that were set out in the material filed by the applicant.  In other words, he agrees that her evidence is true.  There is some problem with that affidavit in that it was signed in front of a pharmacist and may indeed not be a proper affidavit. 

6. I had the applicant give sworn evidence that the signature on that document is one that she recognises.  Albeit that it is now some 17 years since she has last seen the respondent, she confirmed that that is his signature.  I can take some notice of the fact, albeit that I am not a handwriting expert, that the signature is remarkably similar to the one that appears on the certificate of marriage that has been filed with the Court.  Having regard to all of that, I am satisfied that the respondent has had an opportunity to be heard, and has, for whatever reason, declined to be here today. 

7. There is some significance in that, because in an earlier judgment which seems, from the documents, to have been delivered to the respondent, I made an observation that the marriage ceremony that was undertaken on … March 1997 looked remarkably like having been undertaken as a breach of the laws of Australia.  It may very well also have been a conspiracy to commit offences.  That may very well include an imam who has signed the marriage certificate. 

8. I am quite concerned about what has happened here for the same reasons that I previously articulated, because the very fabric of our society is based upon such things as the institution of marriage, which is solemnised pursuant to a statutory power.  Any breach of that creates serious problems for society.  One such example of that is that it would seem from the evidence that the respondent has, since 1997, married.  There is no suggestion that he ever applied for a divorce or an annulment of that marriage, and indeed, if he was aware that what I am dealing with was a marriage, then he would be committing the state offence, depending on where he was more recently married, of bigamy. 

9. Thus the law treats the annulment of marriages extremely seriously. To determine whether or not a marriage is void, I turn to section 23 of the Marriage Act 1961 (Cth). The applicant relies upon subsection 1(d)(ii) of that provision, that is, that the consent of either of the parties to this ceremony was not a real consent, because that party was mistaken as to the nature of the ceremony performed. It is difficult for the Court to discern just exactly what happened in this case because, apart from the fact that it is 17 years ago, the evidence is extremely brief, and I now have a statement from the respondent indicating that what the applicant says is true.

10. The facts therefore were as follows.  In around March 1997, the applicant was an 18 year old schoolgirl.  She says that she was in Year 12 at a local secondary college.  At that time, she was in a boyfriend-girlfriend relationship with the respondent.  At that time, she said she was under immense psychological pressure because her parents informed her that she had to undergo an arranged marriage.  She said she did not want to live with a person that she was not in love with. 

11. She said she asked the respondent who was her boyfriend for advice on how she could avoid the arranged marriage.  He told her that he could obtain a fake marriage certificate.  I stress that this was a reference to obtaining a certificate, as distinct from undergoing some form of marriage.  The applicant said that the respondent assured her that she would not have to marry him, but that he could get a document which looked like a real marriage certificate.  Indeed, the exact opposite happened. 

12. The applicant’s unchallenged evidence is that on … March 1997, the respondent, in the company of two other males whom she named, took her to B Street, Suburb P, where she went to the backyard of the building, and there met a person who she said was to help them obtain a fake certificate.  She said she was not told this person’s name or any particulars of what was happening. 

13. The bizarre feature of that statement is that the applicant subsequently made a search of the Registry of Births, Deaths and Marriages to find, that on that day, according to the rites of the Islamic faith, a marriage ceremony was said to have taken place, conducted by an imam whose name on the certificate is Mr C.  The applicant was unable to tell me how the certificate came into existence, but she did remember signing a document.  As I observed in discussion, the document is remarkably concise.  It contains not only the spelling of the various names, but also the parties’ occupations, their addresses, and their birthplaces and birthdates. 

14. Someone must have provided details such as the parents’ full names of the applicant and respondent, including what is described quaintly on the certificate as the maiden name of the respective parties’ mothers.  It seems unlikely that someone such as an 18 year old girl’s boyfriend would have that finite detail, but in any event, that is not my task to delve into. 

15. The applicant’s evidence is that she simply signed a piece of paper, ostensibly to get a fake marriage certificate.  Having signed the paper, she then left the four men and returned to the front of the house, where she got into the car.  Three men then joined her, and they drove off, being told that the certificate would be provided to them shortly thereafter.  She said she was not surprised with the rush and lack of formality with the whole process because there was nothing real about the procedure, because the whole idea was to get a fake marriage certificate.  

16. Having returned home, the applicant was informed that the arranged marriage had been cancelled.  She did not then tell her parents about the existence of the fake certificate, let alone what had occurred on … March.  No doubt she turned her mind to studies, because some two months or so later, she ended the relationship with the respondent.  The applicant’s evidence is that she has not had any contact with the respondent thereafter for the last 17 years. 

17. Having regard to the provisions of section 23 of the Act, there is no other conclusion that I can draw than that the consent of the applicant was not a real consent because she was mistaken as to the nature of the ceremony performed. Indeed, as she said in her affidavit, no formal wedding ceremony was performed at all. As I observed in discussion, it is conceivable that in some cultures, ceremonies take place without the parties being together according to custom and religions. That should not happen in Australia because of the provisions of such sections as 45, 46 and 48 of the Marriage Act.

18. I am satisfied on the evidence that the applicant did not undergo a ceremony, did not understand that she was participating in any ceremony, and certainly did not contemplate that she was marrying. 

19. All of that leads to the conclusion that there were various breaches of the laws of Australia.  Having warned everyone on a previous occasion that, if I was so satisfied, I would pass the matter on to the relevant authorities, I think it behoves the Court to indicate here that the documents arising out of these proceedings should be made available to the Attorney-General of the Commonwealth of Australia to decide whether any further steps should be taken against either the applicant, the respondent, the two named witnesses, Mr D, Mr E, and indeed, Imam C. 

20. In the matter of Sasani & King (No. 3), I formally order that the marriage said to have taken place on … March 1997 is declared a nullity.  The application filed on 23 July 2013 is otherwise dismissed.  I direct that the reasons this day and the orders consequent upon those reasons, together with the affidavit of the applicant and the affidavit this day of the respondent, be referred by the registry manager of the Melbourne Registry to the Attorney-General for the Commonwealth of Australia for further determination.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 2 September 2014.

Associate: 

Date:  22 October 2014