Sodhi and Parkhi
[2014] FamCA 498
•19 June 2014
FAMILY COURT OF AUSTRALIA
| SODHI & PARKHI | [2014] FamCA 498 |
| FAMILY LAW – NULLITY – Where the husband alleges his consent was not proper because of fraud or duress – Application dismissed |
| Family Law Act 1975 (Cth) s 51 Marriage Act 1961 (Cth) s 23B |
| Hallas and Kefalos [2012] FamCA 860 Kokl (1981) FLC 91-078 Re S (1980) FLC 90-820 Teves III and Campomayor (1995) FLC 92-578 |
| APPLICANT: | Mr Sodhi |
| RESPONDENT: | Ms Parkhi |
| FILE NUMBER: | PAC | 453 | of | 2014 |
| DATE DELIVERED: | 19 June 2014 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 19 June 2014 |
REPRESENTATION
| THE APPLICANT: | Self-represented Litigant |
| THE RESPONDENT: | No appearance |
Orders
The Application for Declaration of Nullity filed on 4 February 2014 is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sodhi & Parkhi 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 PARRAMATTA |
FILE NUMBER: PAC 453 of 2014
| Mr Sodhi |
Applicant
And
| Ms Parkhi |
Respondent
REASONS FOR JUDGMENT
This is an application filed by the husband seeking a declaration of nullity in relation to his marriage to the Respondent wife. The marriage was solemnised on … August 2013 at Sydney Suburb D, New South Wales, and a certified copy of the marriage certificate has been marked into evidence as Exhibit A. It appears that the marriage was performed by a celebrant pursuant to the rights of Religious Organisation C. The marriage was registered on … September 2013.
The application filed by the husband on 4 February 2014 is supported by an affidavit by the husband filed on the same date.
By way of background, the husband was born in 1980 and is now aged 33 years of age. The Respondent wife was born in April 1984 and is now 30 years of age.
During the course of these proceedings service on the Respondent wife, whose whereabouts are not known to the Applicant, was dispensed with and the matter proceeds on an undefended basis.
The affidavit in support of the application for a declaration of nullity has been prepared by the husband himself and is in handwritten form. It is of some utility to reproduce the terms of the affidavit in these reasons for Judgment. In his affidavit the Applicant husband deposes as follows:
1. This marriage ceremony took place on …/08/13. I was forced into this marriage by my mum. I did not give my real consent to the marriage because consent was obtained by duress and fraud. This was a purely arranged marriage. I was told by family members back at home that [Ms Parkhi] (respondent) was a descent (sic) person. [Two days after the marriage ceremony] I found out that [Ms Parkhi] had an affair with her work colleague and continue to have affair. Her main intention to marry me was to get Australian citizenship.
2.I obeyed my mum’s wishes because she threatened that if I disobey her wishes then she will be dishearten (sic) and will never talk to me for the whole life. My mother is 63 years old; sickly and old. My dad passed away [in 1993] at the age of 42. I have got only one old parent figure remaining in my family because my grandparents also passed a long time ago. To obey my mum’s wishes was to make my mum happy and save her from any future sickness.
3.Therefore I confronted my mum with all these facts about my (wife) [Ms Parkhi] that was after the marriage ceremony, my mum told me to end the marriage immediately because I cannot ruin my life.
4.A final order to be soughted (sic) as soon as possible that this marriage be annulled against [Ms Parkhi].
5.Dispensation of service to be effective on this application as well because on numerous occasions I have posted her letters to help me out to end this marriage. She (respondent) never responded. My mum tried to find her in [Country B] and the respondent is not located anywhere.
The application before the Court for a declaration of nullity is made pursuant to section 51 of the Family Law Act 1975 (Cth), and that provision provides that:
An application under this Act for a degree of nullity of marriage shall be based on the ground that the marriage is void.
The grounds on which a marriage is void is set out in section 23B of the Marriage Act 1961 (Cth), which provides, relevantly, as follows:
(1) A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:
(a)either of the parties is, at the time of the marriage, lawfully married to some other person;
(b) the parties are within a prohibited relationship;
(c) by reason of section 48 the marriage is not a valid marriage;
(d) the consent of either of the parties is not a real consent because:
(i) it was obtained by duress or fraud;
(ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
(iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony; or
(e) either of the parties is not of marriageable age;
and not otherwise.
The ground relied upon by the husband is section 23B(1)(d)(i), that is, that the marriage was obtained by duress or fraud.
In Kokl (1981) FLC 91-078 the Court said in relation to duress such as to render a marriage a nullity was duress that meant: “The compulsion of a person by physical or mental harm”.
Subsequently in Re S (1980) FLC 90-820 Watson SJ said as follows:
The emphasis on terror or fear in some of the judgments seems unnecessarily limiting. A sense of mental oppression can be generated by causes other than fear or terror.
He went on to say that:
If there are circumstances which taken together lead to the conclusion that because of the oppression a particular person has not exercised a voluntary consent to marriage that consent is vitiated by duress and is not real consent. This is so however the oppression arises and irrespective of the motivation or propriety of any person solely or partially responsible for the oppression.
Later, His Honour said:
… It is the effect of the oppression on his mind that should be the operative factor, not the form of such oppression.
In Teves III and Campomayor (1995) FLC 92-578 Lindenmayer J said:
The cases that I have already made reference to make it clear that it is duress at the time of the marriage ceremony that is critical. Clearly this can be induced by events prior to it, but in the end it is for the applicant to show that at the time she gave her consent at the ceremony, some overbearing force was operating. In this, evidence about the ceremony, and events occurring during and immediately before or after it, can be extremely important.
As was observed by Ryan J in Hallas and Kefalos [2012] FamCA 860:
The standard of proof, having regard to the gravity of the application is determined having regard to section 140(2) of the Evidence Act 1995. Assertions, conclusions, indefinite testimony and indirect inferences are thus insufficient to ground a finding of fact.
In terms of the application of the facts as asserted by the Applicant husband, the Applicant asserts that he was forced into the marriage by his mother. He says it was a purely arranged marriage and perhaps for an ulterior motive of obtaining Australian residence status for the wife. However, those circumstances in terms of the arrangement of the marriage were known to the Applicant at the time that he entered into the marriage ceremony and the ceremony appears to have been voluntarily undertaken by he and the Respondent wife in circumstances where a celebrant performed a marriage ceremony on … August 2013.
The Applicant’s case clearly evidences that at the time of the actual ceremony itself he knew precisely that he was being married to the Respondent and there was no doubt at the time of the marriage as to the nature and effect of his consent to participate in that ceremony.
In all of the circumstances, the Applicant has not satisfied the Court that the marriage ceremony itself was obtained by duress or fraud as contemplated by s 23B of the Marriage Act 1961 (Cth). Accordingly, the application for declaration of nullity is dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 19 June 2014.
Legal Associate:
Date: 7 July 2014
0