SITA & BEDI

[2015] FamCA 1105

FAMILY COURT OF AUSTRALIA

SITA & BEDI [2015] FamCA 1105

FAMILY LAW – MARRIAGE – VALIDITY OF FOREIGN MARRIAGES – application for declaration that marriage solemnised overseas is not a valid marriage – whether consent to marriage ceremony was obtained by duress – where the applicant asserts the respondent threatened her with a gun – where marriage not a valid marriage.

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

Allesch & Maunz (2000) 203 CLR 172
Hosking & Hosking (1995) FLC 92-579
In the Marriage of S (1980) FLC 90-820

Teves and Campomayor (1995) FLC 92-578

APPLICANT: Ms Sita

RESPONDENT: Mr Bedi

FILE NUMBER: BRC 8194 of 2015

DATE DELIVERED: 11 December 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 7 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Sayers

SOLICITOR FOR THE APPLICANT: Briese Lawyers

THE RESPONDENT: No appearance

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. It is declared that the marriage solemnised between the parties in City B, India on 4 October 2014 and registered on 7 October 2014 is not recognised as a valid marriage in Australia.

2. Save as is provided for above, the Initiating Application filed 27 August 2015 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sita & Bedi 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 BRISBANE

FILE NUMBER: BRC 8194  of 2015

Ms  

Applicant

And

Mr Bedi

Respondent

REASONS FOR JUDGMENT

1. On 27 August 2015, the Applicant filed an Initiating Application by which she seeks an order that the Court declare that the marriage she and the Respondent entered into in City B, India in 2014 is not a valid marriage[1] and/or is void.[2]

   [1] s 88D(2)(d) Marriage Act 1961 (Cth)

   [2] s 51 Family Law Act 1975 (Cth)

2. This Application is supported by the following material:

   a)affidavits sworn by the Applicant on 24 August 2015 and 30 October 2015 (which were filed in the Court on 27 August 2015 and 4 November 2015 respectively); and

   b)an affidavit by her mother, sworn on 24 August 2015 and filed in the Court on 27 August 2015.

3. I accept that the Respondent has been served with this material, a copy of the Court brochure and, later, the Order made 24 September 2015. I am satisfied that he was provided with the Application and supporting affidavit material on 12 October 2015 and again on 15 November 2015.[3]

   [3]          Affidavits of Service both filed 30 November 2015.

4. I consider that the Respondent, who did not appear at the hearing of the Application, has been afforded the opportunity[4] to place material before the Court. I consider that the Respondent has been afforded the opportunity to be heard in relation to the Application before a decision about it is made. I am, therefore, satisfied that the indispensable requirement of procedural fairness has been afforded to him.[5]

   [4]Allesch & Maunz (2000) 203 CLR 172 per Kirby J at [38]: Sometimes through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.

   [5]          Allesch & Maunz (2000) 203 CLR 172

5. In the absence of evidence to the contrary, I accept the evidence given by the Applicant and her mother.

   Relevant Circumstances

6. The Applicant was born in India in 1993. She first came to Australia with her mother and brother in early October 2013 to visit her father, who was then living and working in this country. The Respondent is described as a distant relative of the Applicant’s mother’s brother-in-law. By virtue of this familial relationship, both he and the Applicant had attended annual family celebrations over the years and he was known to her.

7. The Applicant returned to India alone to live with an aunt while she completed her studies. She says that, during the eight months (between late 2013 and 2014) she lived with her aunt in India, she saw the Respondent on various occasions – whilst he indicated he was interested in a relationship (by which I infer she means intimate personal relationship) with her, she declined. She said they went out on occasions but only as friends.

8. Between 3 October 2013 and 5 June 2014, the Applicant travelled between India and Australia several times. In early June 2014, she moved here and, from January this year, has participated in tertiary study.

9. On 21 September 2014, the Applicant, her parents and her brother travelled to India for a holiday. All were booked on a return flight and intended to leave India on 31 October 2014 to return to Australia.

10. The Respondent contacted the Applicant when she returned to India and invited her to come with him to meet mutual friends on 3 October 2014. When she did so, he later told her that they were not coming and bought her food and drink. She says that after she consumed this, she began to feel dizzy and confused. He then took her by taxi to a house to which she had never been.

11. She says that, after some time had passed and while she was dizzy and confused, he came into the bedroom and woke her, put some papers in front of her and told her she had to sign them: she says he showed her a gun which he was holding and, when she asked about the papers, began to threaten her and her family if she did not sign them. She says he told her he knew where her brother and parents were in India and that he would harm them. She also says he threatened to throw acid on her face if she did not sign the documents. She says that, because she knew such attacks had become quite common in India and she was extremely fearful the Respondent would carry through with his threats to disfigure her, she did as he asked and signed the documents he provided her. The documents the Applicant signed this day were somehow necessary for the marriage ceremony which occurred the next day.

12. The Applicant says that, after she signed the documents, the Respondent locked her in the room.

13. The next day he brought her food and drink but did not allow her out of the room or to call her parents. There is no evidence to suggest that the Respondent threatened the Applicant again at any time after she signed the documents. 

14. Later that day he drove the Applicant to a building in which one of the rooms was decorated to look like a religious temple. She says he carried the gun. She was given a headscarf and flowers and she and the Respondent participated in a few Hindu rituals and had their photographs taken. The Respondent provided the documents she had signed and was given a Certificate of Marriage. A photograph of this document, dated 4 October 2014, is exhibited to the Applicant’s affidavit. It records that the marriage between the Applicant and Respondent had been solemnised according to religious rights and customs. The Certificate of Marriage bears the signatures of both the Applicant and Respondent.

15. The Applicant says that, after the ceremony, the Respondent took her back to the home, announced that they were now married and told her she had signed the paperwork and could not do anything. He sexually assaulted her that night on the pretext that they were married.

16. The Applicant says that, despite her repeated requests, she was not allowed to contact her parents and contemplated killing herself as she could not bear to face anyone because she had been forced into a marriage.

17. On 5 October 2014, the Respondent and his brother gave the Applicant a mobile phone and told her she could call her parents. She did so. She told them that everything was okay and that she and the Respondent had married. She explains that she said this because the Respondent was listening to her conversation and she still felt very threatened and scared. The Applicant’s mother then told the Respondent that whatever had happened was okay, they just needed to come home so they could arrange a “proper marriage”. He told her they were going out of town and would come home after two days.

18. The Respondent’s brother then took the Applicant and Respondent to another house. They stayed there for two or three days, during which the Applicant says she had no opportunity to contact anyone or do anything. Her evidence is that, at this stage, she thought she would have to go along with the marriage as she had been away from home for two days and had been sexually assaulted by the Respondent.

19. The Applicant says that, during the time she and Respondent were at this residence, she was taken to a Registry office: she understood they were there to register the marriage. The Marriage Registration Certificate exhibited to her affidavit records that the marriage between the parties, solemnised on 4 October 2014, was entered in the Register of Marriage under the Hindu Marriage Act 1955 on 7 October 2014. The Applicant signed the required documents on that day but says she did so because she was still very scared and deeply shamed by what had happened.  She does not suggest that the Respondent had a gun in his possession when she signed the Register.

20. After their marriage was registered, the Respondent took her back to his family’s home and, later, arranged to meet her parents at a park. When they met, she did not have any opportunity to speak with her parents alone because of the presence of numerous members of the Respondent’s family. She smiled to try and reassure her parents that everything was alright – she said she did this because she believed her future had been determined and she had to live with being married to the Respondent.

21. The Applicant says her parents suggested to the Respondent that they arrange a “proper” marriage so that they (the Applicant and Respondent) could be accepted in society as a married couple. The Applicant says her parents made this offer because, at the time, they thought that was her wish and did not know anything of the circumstances of her marriage. This account is corroborated by her mother.

22. When the Applicant and Respondent met with her parents at a restaurant later, she again maintained her composure and showed her parents she was happy. They gave the parties $1,200.00 and clothes so they could start their new life.

23. As previously planned, the Applicant’s parents and brother returned to Australia on 31 October 2014.

24. The Applicant remained living with the Respondent and other members of his family at his parents’ home. She says she was not permitted to leave the home unaccompanied and was rarely left alone.

25. A few days after her parents had returned to Australia, the Applicant found herself alone and rang her mother. She asked her mother why she had not called; her mother told her she had been busy and was unhappy about what she (the Applicant) had done to them - which I take was a reference to marrying the Respondent. After this comment, the Applicant started crying. She told her mother it was not her wish to marry the Respondent, told her “what had happened” and said that she wanted to return to Australia.

26. The Applicant’s passport had been left with the maternal family. The Applicant’s mother suggested they make a plan to enable her to return to Australia. They decided to mislead the Respondent by telling him that money had to be collected from her parents’ home.

27. On 11 November 2014, the Respondent accompanied the Applicant to her parents’ home. Whilst he was distracted, she left the residence by another door and was transported by a maternal relative to the airport where she boarded a plane for Australia.

28. After the Applicant arrived in Australia, the Respondent repeatedly tried to contact her. He ceased his attempts after her father told him they would complain to police in both Australia and India. When she filed her first affidavit in late August 2015, the Applicant had not heard from the Respondent for five or six months.

29. As the matters outlined demonstrate, the Applicant was with the Respondent or in his presence or the presence of members of his family from 3 October 2014 until 11 November 2014: the marriage ceremony took place on 4 October 2014 and was registered on 7 October 2014.

    Applicable Principles

30. It has previously been said that public policy requires that marriage should not be lightly ‘set aside’, such comment referring to declarations such as those sought by the Applicant here[6]. Authority also makes clear that very clear and cogent evidence must be given before a presumption of consent can be rebutted if, as here, an adult has gone through a public ceremony giving all the indications of consent.

    [6]          and not divorce orders.

31. An application under this Act for a decree of nullity of marriage shall be based on the ground that the marriage is void.[7] The circumstances in which a Court may find that a marriage is void are specified by s 23B of the Marriage Act1961 (Cth). That section is contained within Division 2 of Part III of the Marriage Act 1961 (Cth), a Division which applies only to marriages solemnised within Australia and those under Part V of the Marriage Act1961 (Cth) (namely, marriages of members of the defence force overseas).

    [7] s 51 Family Law Act1975 (Cth).

32. The parties marriage was, as noted above, solemnised in India. Consequently, s 23B of the Marriage Act1961 (Cth) does not apply.

33. However, s 88D(2)(d) of the Marriage Act 1961 (Cth) (found within Part VA – Recognition of Foreign Marriages) provides that a marriage to which that Part applies shall not be recognised in Australia as valid if the consent of either of the parties was not a real consent for a reason set out in subparagraph 23B(1)(d)(i), (ii) or (iii).

34. The reasons set out in subparagraphs 23B(1)(d)(i), (ii) and (iii) are that the consent of either of the parties is not a real consent because:

    a)it was obtained by duress or fraud;

    b)that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or

    c)that party is mentally incapable of understanding the nature and effect of the marriage ceremony.

35. None of the matters summarised in paragraph 34(b) and (c) are established here.

36. As appropriately conceded by Counsel for the Applicant in the written submissions prepared on her behalf, the evidence is such that I am not persuaded that fraud[8] attended the ceremony in which the Applicant and Respondent participated.

    [8]          in the sense outlined in Hosking & Hosking (1995) FLC 92-579 by Lindenmayer J.

37. Rather, the Applicant, who bears the onus,[9] asserts that her consent to the marriage solemnised on 4 October 2014 was not a real consent because, given the circumstances outlined earlier, it was obtained by duress.

    [9]          the standard of proof being the balance of probabilities.

38. The term ‘duress’ is not defined in the Marriage Act 1961 (Cth). However, the meaning to be accorded to it for the purpose of proceedings such as this has been discussed in previous decisions of the Court.

39. In In the Marriage of S[10], Watson SJ said at page 75,179:

    If there are circumstances which, taken together, lead to the conclusion that because of oppression a particular person has not exercised a voluntary consent to a marriage, that consent is vitiated by duress and is not a real consent.  This is so howsoever the oppression arises and irrespective of the motivation or propriety of any person solely or partially responsible for the oppression.

    [10] (1980) FLC 90-820.

40. In In the Marriage of Teves and Campomayor[11], Lindenmayer J discussed further the meaning to be attributed to the word “duress” in circumstances such as this. As his Honour makes clear, whilst a direct threat of physical violence is not necessarily required, a party asserting duress must establish sufficient oppression, from whatever source, acting upon them to vitiate the reality of their consent; whilst duress can be induced by events before the marriage ceremony, because it is duress at the time of the marriage ceremony that is critical, an applicant must establish that, at the time he or she gave consent at the marriage ceremony, some overbearing force was operating such that such consent was not real consent.

    [11] (1995) FLC 92-578.

41. Counsel for the Applicant submitted that the Court would be persuaded that on 4 October 2014, at the time she participated in the marriage ceremony and signed the Certificate of Marriage, the Applicant was subject to overbearing force resulting from a combination of the threats made to her by the Respondent the night before, her isolation from family and the fact of the Respondent’s possession of a gun during the ceremony itself.

42. I accept the force of these submissions. I am persuaded that, when the Applicant signed the documents on 3 October 2014 and when she participated in the marriage ceremony and signed the Marriage Certificate on 4 October 2014, she was acting under duress and, consequently, her consent was not a real consent. 

43. For these reasons, I make the orders outlined at the commencement of these short Reasons.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 11 December 2015.

Associate:                 

Date:    11 December 2015