Simpson-Morgan and Burreket

[2009] FamCA 138

FAMILY COURT OF AUSTRALIA

SIMPSON-MORGAN & BURREKET [2009] FamCA 138

FAMILY LAW – MARRIAGE – NULLITY – Application for declaration of nullity of marriage – wife argues she was mistaken as to the nature of the ceremony performed and relies upon s23B(1)(d)(ii) of the Marriage Act 1961 – wife mistaken as to effect of marriage not nature of ceremony – application dismissed

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

APPLICANT: Ms Simpson-Morgan

RESPONDENT: Mr Burreket

FILE NUMBER: SYC 5041 of 2008

DATE DELIVERED: 25 February 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 2 February 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Dlakic

SOLICITOR FOR THE RESPONDENT: Mr Husseini

Orders

1. That the application of the wife filed 28 August 2008 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Simpson-Morgan & Burreket is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5041  of 2008

MS SIMPSON-MORGAN

Applicant

And

MR BURREKET

Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings before the Court, are those commenced by Ms Simpson-Morgan (the wife) by application filed on 28 August 2008 in which she seeks an order for the annulment of a marriage expressed in the application as being “[t]hat the marriage ceremony in which the Applicant took part on […] May 2008 be annulled.”

2. By a Response filed by Mr Burreket (the husband) on 13 November 2008, he seeks an order “[t]hat the wife’s application for annulment of the marriage entered between the parties on […] May 2008 be confirmed and announced as valid.”

3. The solicitor for the wife relies upon the provisions of Section 23B(1)(d)(ii) of the Marriage Act 1961, namely, that “the consent of either of the parties is not a real consent because that party is mistaken…as to the nature of the ceremony performed.”

4. In addition, the solicitor for the wife sought to rely upon the fact asserted by the wife that one of the witnesses to the wedding, namely, one IJ, whose name appears upon the Certificate of Marriage, was not in fact present at the solemnisation of the marriage.

Background Facts

1. The wife was born in September 1982 in Sydney and is presently 26 years of age.

2. The husband was born in November 1982 in Lebanon and is presently 26 years of age.

3. On 12 February 2006 the husband arrived in Australia on a study visa.  In November 2007 the wife converted to Islam.  In her oral evidence she asserts that she is a member of the Sunni Group of adherents to Islam.

4. She inferentially says that the husband is not a member of that group.

5. The wife asserts that the parties met in May 2008.  The husband asserts that the parties met in January 2008.

6. The wife asserts that in May 2008 the parties married in a ceremony conducted by a Sheik, Sheik K, in the presence of Mr M, an authorised celebrant.

7. The wife…