SASANI & KING

[2014] FamCA 143

FAMILY COURT OF AUSTRALIA

SASANI & KING [2014] FamCA 143

FAMILY LAW – NULLITY – Nullity application – Service required – Substituted service orders – Unusual circumstance in which applicant alleges no ceremony took place at all yet marriage certificate says otherwise.

Family Law Act 1975 (Cth)

APPLICANT: Ms Sasani

RESPONDENT: Mr King

FILE NUMBER: MLC 6028 of 2013

DATE DELIVERED: 5 February 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Boden

SOLICITOR FOR THE APPLICANT: Starnet Legal Pty Ltd

THE RESPONDENT: No appearance

Orders

1. That the application is adjourned to the Judicial Duty List at 10.00am on 2 April 2014.

2. That there be leave to the applicant to issue a subpoena to give evidence returnable on 2 April 2014 to the respondent’s cousin as referred to in paragraph 22 of the affidavit filed 23 July 2013.

3. That this order and the reasons for judgment this day together with all affidavit material be served upon the respondent by personally delivering the documents to him care of his cousin who is described in paragraph 22 of the said affidavit.

4. That the reasons this day be transcribed and be made available to all parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sasani & King 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 filed an application in a case simply seeking a decree of nullity of a marriage which is said to have taken place on … March 1997 in Kuran, according to the Islamic culture.  The application is supported by an affidavit of 23 July as well but neither of those documents has ever been served on the respondent Mr King.  The matter was adjourned by Macmillan J to the duty list today and a further affidavit has been filed by the applicant which I have given leave to be put on the court file.  The evidence is, to say the least, bizarre. 

2. The applicant says that at 18 years of age her father was making it clear that she was to marry a person whom she did not know and she spoke to the respondent indicating that she was not agreeable to that arranged marriage.  She asserts that the respondent suggested that he could get a fake certificate of marriage to scare her parents so that they would cancel the proposed arranged marriage.  In March 1997, and specifically … March 1997, she followed the respondent, together with two of his friends, to an address in Suburb P where she met a man who said that he could arrange the marriage certificate.  She said that she could not recall the name of this person. 

3. In the affidavit filed this day she goes a step further in relation to what actually happened.  She said she walked to the back of the premises, there met a man whose name she did not know and was asked to sign a document and having done so, walked away and sat in the car.  Just exactly what happened thereafter remains a mystery.  She decided in 2012 that she would investigate the matter and she went to the Registrar of Births Deaths and Marriages where, she said, to her shock, she found a marriage certificate.  The address to which I have referred was shown and it indicated that the two men whom she named had witnessed an Imam marry her to the respondent. 

4. There are a whole lot of steps that have to be taken before a marriage takes place but the applicant’s evidence is confined to the fact that she walked into the backyard of this house and signed a document and walked away. 

5. There is no evidence, other than by presumption and/or inference, that a “ceremony” took place on … March.  It may be that the presumption and prima facie evidence is overridden by the specific evidence from the applicant to say that a marriage ceremony did not take place.  The applicant’s evidence is that, having disclosed to her sister what had happened, some 15 or 16 years later, the sister provided the details of a cousin of the respondent.  The applicant attempted to contact the cousin and he stated that this was “bullshit” and that, as the respondent was now happily married, she should not attempt to locate him. 

6. In my view that just compounds the problem because if the marriage did take place, then the respondent presumably committed the offence of bigamy.  He presumably would want to know that because, if prosecuted, he may very well face a significant period of imprisonment.  Leaving that problem aside, there is also the difficulty that this may or may not have been a conspiracy which could very well have involved the authorised marriage celebrant.  I say authorised marriage celebrant because although the applicant does not make any reference to who that person was, the certificate that she obtained from the Registrar of Births Deaths and Marriages not only names the person involved, who certifies to having solemnised the marriage, but that particular person also put his registration number down on the document to indicate that he was just that, an authorised person. 

7. There are questions of cultural issues here and I think it is appropriate, on the request of the applicant, to adjourn the matter so that further inquiries can be made even though there are some legal issues unresolved.  It seems to me logical that, as there is an avenue to find or bring to the attention of the respondent the fact that this application is on foot and as the cousin seems to be the person who knows exactly what is happening, it is appropriate that he be the service recipient of the document on behalf of the respondent.  I propose to have these reasons provided to the respondent because I am sure that if he was in the same position as the applicant, he too would want all of this sorted out.  It seems, on the applicant’s evidence, that no marriage ceremony ever took place at all.  That gives rise to the problem of whether or not I can annul it.

8. It is appropriate therefore that the order be made that service on the respondent of the various court documents, including these reasons, be served on the cousin described in the affidavit.  To the extent that that cousin seems to be suggesting through the applicant’s evidence that he will have no involvement and/or will not provide assistance to the applicant, I give leave to the applicant to issue a subpoena to have him come to court and explain himself.  Whether that subpoena is issued is a matter entirely for the applicant. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 February 2014.

Associate: 

Date:  14 March 2014