Swarapathan and Sangakkara

[2012] FamCA 1071

FAMILY COURT OF AUSTRALIA

SWARAPATHAN & SANGAKKARA [2012] FamCA 1071

FAMILY LAW – Nullity of a marriage.

APPLICANT: Mr Swarapathan

RESPONDENT: Ms Sangakkara

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 6379 of 2012

DATE DELIVERED: 29 November 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 29 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: ER Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the applicant’s application for a decree of nullity of the marriage of 23 March 2012 in his application filed 16 July 2012 shall be and is herby dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Swarapathan & Sangakkara 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 6379 of 2012

Mr Swarapathan

Applicant

And

Ms Sangakkara

Respondent

REASONS FOR JUDGMENT

1. The applicant is a 30-year-old professional, born in Sri Lanka who, until ten years ago, lived with his family in Country A.  Since then, he has studied for seven-and-a-half years in the Country B, and has worked in Australia for about the last 18 months. 

2. The respondent is a 26-year-old professional who lives in the Country A. 

3. The applicant seeks a decree of nullity of his marriage with the respondent, which took place in Melbourne in March 2012.  His application was filed on 16 July 2012, supported by his affidavit, filed on the same date.

4. The case came before Macmillan J, I note, on 11 September 2012, and was adjourned to today, presumably for some additional material.  I now have the applicant’s affidavit that his solicitor will file today.  I also have the affidavit of his friend, Mr C, again to be filed today, and he relies on the affidavit of his aunt, filed on 27 November 2012. 

5. I also have the respondent’s Acknowledgement of Service, signed by a Melbourne lawyer on her behalf on 16 July 2012, and the respondent’s affidavit, filed 17 September 2012, supporting the applicant’s application.

6. In short, the applicant claims that he did not consent to the marriage, but was forced into it by his parents who arranged it so that he would not marry a woman he loved of whom they did not approve.  He said the marriage was arranged by both sets of parents.  The respondent was only in Australia for four to five weeks.  He did not know her before the marriage, and she left the country within two days of the wedding.  He says they have not lived as husband and wife, and have had no further contact since the marriage.

7. He says that his parents put pressure on him, effectively saying that he would be cut off by the family, or that the parents would not be living any more if he refused to go ahead with the marriage.  He has also sworn that they forced him into the marriage by false pretences. 

8. The respondent, in supporting the application, says that she was forced into the marriage by her parents, did not know the applicant, and that she returned to the UK within days of the wedding, and that they did not live as husband and wife.

9. The relevant legal principles when it comes to a decree of nullity are as follows.  Section 51 of the Family Law Act provides that an application for a decree of nullity shall be based on the ground that the marriage is void. The grounds upon which I can find that a marriage is void are set out in ss.23 and 23B of the Marriage Act 1961. 

10. The onus of establishing the ground is on the applicant, on the balance of probabilities, and I note that s.140 of the Commonwealth Evidence Act (Cth) deals with the standard of proof.  At s.140, subsection (2) it provides:

    Without limiting the matters that the court may take into account in deciding whether it is satisfied –

    in a civil case, on the balance of probabilities –

    it is to take into account:

    (a) the nature of the cause of action or defence;

    (b) the nature of the subject matter of the proceeding; and 

    (c) the gravity of the matters alleged.

11. Section 23B of the Marriage Act provides that a marriage is void if the consent of either party is not a real consent, because it is obtained by duress or fraud. 

12. The ground relied upon here is that of duress. It is clear from the case law that I require clear and cogent evidence of duress to be proven, in order to satisfy the ground. In the Marriage of S (1980) FLC 90-821, the case that I was referred to by Mr Emanuel for the applicant, Watson J discussed the authorities as to what was sufficient to prove duress. His Honour, at page 75,178, referred to the traditional notions of duress that needed to be proven, with an emphasis on terror or fear befalling the person who was claiming duress.

13. His Honour went on to consider that the emphasis on terror or fear seemed to be unnecessarily limiting.  He said that:

    A sense of mental oppression can be generated by causes other than fear or terror.  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 however the oppression arises, and irrespective of the motivation or propriety of any person solely or partially responsible for the oppression.

14. His Honour went on to say that he could not read down the natural and ordinary meaning of “duress,” as equating to oppression or coercion, and he took into account that there are circumstances where, although the duress might be non-violent, it could arise from controlling parental coercion. 

15. There are a number of aspects of the evidence in this case that simply do not add up to me. 

16. First, there is a reference by the applicant in paragraph 20 of his affidavit to the fact that his parents relied on false pretences in order to obtain his consent.  Unfortunately, he does not explain what the false pretences, as he put it, happened to be.  He says, at paragraph 21:

    I was genuinely led to believe a lot of communications prior to registration between my parents and the respondent’s parents to be true, but later found to be untrue, after the registration.

17. There is really no explanation beyond that.  It is interesting that he refers to being led to believe things by the respondent’s parents, although there is otherwise no reference at all to any discussion with the respondent’s parents.  In fact, the rest of the affidavit material would have me believe that he had no contact at all with the respondent’s parents.  In any event, what he is describing there is very different from the ground of duress upon which he relies.

18. In his first affidavit, the applicant makes absolutely no reference to the involvement of his aunt in the events leading up to the marriage.  He refers only to the coercion by his parents. 

19. After the adjournment by Macmillan J, he then prepared a further affidavit which is before me today.  In that affidavit he swore:

    I failed to disclose the following additional information.

20. He then goes on to disclose that his aunt was instructed by his parents to ensure that the marriage took place.  The aunt herself has also now filed an affidavit, in which she sets out her detailed involvement on behalf of his parents.  She seems to be saying that she is the one who caused duress on their behalf, and she says in the course of her affidavit that she felt she was under pressure from the parents.  The fact of the aunt’s involvement, not mentioned in the first affidavit, but arising like that in the second affidavit, causes me concern. 

21. The next matter in the evidence that causes me concern relates to the question of the contact between the applicant and his parents before the marriage, and the events immediately leading up to this marriage. 

22. In his first affidavit, at paragraph 10, he swears that he was discussing this marriage with his parents two days before.  He says:

    Two days before the date of registration (21 March 2012) I asked my parents whether I could speak to the respondent, because I have never spoken to her nor met her earlier.

23. The applicant then swears in paragraph 11:

    My parents told me there is no need to talk to her because we have done all the talking and have agreed for the registration of the marriage on your behalf.

24. The aunt’s affidavit puts quite a different gloss on the events leading up to the wedding.  Sorry, before I say that, again, let me withdraw that and just add this.  At paragraph 13 of his first affidavit, the applicant says:

25. “The day before the registration, I asked my parents why are you forcing me to marry the respondent tomorrow, because I have never met her earlier, nor spoken to her at any time.  It is really bad of you to force me to marry the respondent.” 

26. Let me say there, by way of an aside, Mr Emanuel for the applicant has clarified to me when the term “registration” is used, it is a reference to the actual marriage ceremony, which did take place two days later.

27. That is, yet again, another reference to discussions between the applicant and his parents on the days leading up to the wedding.

28. The aunt’s affidavit puts quite a different gloss on events.  She suggests that she flew into Melbourne on the day before the wedding.  She says then that she took the applicant to the place of the ceremony on the evening of the ceremony:

    …on the pretext of attending a social gathering organised by some friends.

29. If I believed the aunt’s affidavit, it was the first that the applicant knew of the marriage pending that day.  Yet, from his own affidavit it is clear that he had been having discussions with his parents the day before and the day before that.

30. The aunt’s version is supported by the affidavit of the applicant’s friend.  That friend says that from everything that he observed and knew, the applicant was completely unaware that a marriage was pending.  Again, this does not sit with the applicant’s own version of having said to his parents, as he put it in paragraph 13 of his affidavit: 

    Why are you forcing me to marry the respondent tomorrow?

31. I am satisfied that the applicant did know of the pending marriage, and that he did attend on the day knowing that it would occur, contrary to the impression that was otherwise being put before me in other parts of his material.

32. Finally, there is another aspect of the applicant’s case that does not add up.  Although he claims that he had no knowledge at all about the respondent, that she would leave Australia after the wedding, and that he has had no contact with her since and no relationship at all, I noted in the course of submissions this morning that not only does she have a local Australian lawyer who has prepared her supporting affidavit, that is, the affidavit supporting the applicant’s application, but also his documents were served on that lawyer on behalf of the respondent the very day they were issued. 

33. Mr Emanuel, the solicitor for the applicant, had led me to believe that it was after the documents were served on the respondent that she obtained an Australian lawyer.  Perhaps that was just a miscommunication between us and perhaps I misunderstood him.  In any event, it is apparent from the Acknowledgement of Service that the Australian lawyer was already instructed to accept service, and that was known to Mr Emanuel, because it was that lawyer to whom he sent the documents.

34. When I asked Mr Emanuel how this could have been arranged given that the applicant said he had had no contact at all with the respondent since the marriage ceremony, Mr Emanuel explained that the respondent had a sister living in Australia, and it was through her and/or her husband that the applicant had been able to arrange service.  I would have expected in a full and frank disclosure of material to the Court, that those pertinent aspects would have been set out in affidavit material to ensure that the Court was not left with the impression that this total stranger that the applicant was made to marry was, in fact, someone with whom he had no means of communication at all.

35. In combination, those facts mean that I cannot be satisfied that I am being told the whole or a truthful story by the applicant.  As I said, putting it colloquially, the story does not fully add up, and it means that the applicant fails to satisfy the onus that is on him to prove that there is a basis or a ground here for a decree of nullity. 

36. I do emphasise, this is not the marriage of a 16 year old, as it was in the case of Re S.  The applicant is an independent, 30 year old man, who has lived, studied and worked overseas independently of his family for a third of his life.  That is not to say that he cannot be subjected, or someone in that position cannot be subjected to family pressure, even to the point of duress, but the inconsistencies and the gaps in the evidence in this case fail to satisfy me of such duress.  Whatever his disappointments about this marriage, or whatever the surrounding circumstances may in fact be, in the not too distant future, he may well have a divorce application open to him, but this application for a decree of nullity is dismissed.

37. So I will simply make the order that the applicant’s application for a decree of nullity of the marriage of 23 March 2012 in his application filed 16 July 2012 shall be and is hereby dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 29 November 2012.

Associate: 

Date:  29 November 2012