TIRTA & LIM
[2012] FamCA 63
•23 February 2012
FAMILY COURT OF AUSTRALIA
| TIRTA & LIM | [2012] FamCA 63 |
| FAMILY LAW - NULLITY - duress - whether the husband entered into marriage due to pressure from his parents and because of religious and cultural obligations obliging him to obey his parents’ wishes – where duress at the time of the marriage ceremony is critical – found no evidence to establish duress – application dismissed. FAMILY LAW - EVIDENCE - Admissibility – where assertions, conclusions, indefinite testimony and indirect inferences are insufficient to ground a finding of fact |
| Evidence Act 1995 (Cth) s 140(2) Marriage Act 1961 (Cth) s 23B |
| In the Marriage of Theves III and Campomeyar (1994) 18 Fam LR 844 |
| APPLICANT: | Mr Tirta |
| RESPONDENT: | Ms Lim |
| FILE NUMBER: | SYC | 5833 | of | 2011 |
| DATE DELIVERED: | 23 February 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 20 February 2012 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Legal and Company Solicitors |
| SOLICITOR FOR THE RESPONDENT: | Onegroup Legal Pty Limited |
Orders
That the application filed 23 September 2011 seeking a decree of nullity is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tirta & Lim 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 SYDNEY |
FILE NUMBER: SYC 5833 of 2011
| Mr Tirta |
Applicant
And
| Ms Lim |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The application before the court is an application by Mr Tirta (“the husband”) for a decree of nullity in relation to his marriage to Ms Lim (“the wife”). The marriage was solemnized on … March 2011 in Sydney. The wife consents to the application for a decree of nullity but her consent is insufficient to ground the decree and I must be satisfied, on the evidence, that a ground for the relief sought has been established. As Justice Lindenmeyer said in In the Marriage of Theves III and Campomeyar (1994) 18 Fam LR 844, “a nullity decree is not to be granted lightly. Moreover the grant of a decree of nullity is not discretionary. If the facts establish the marriage is invalid, relief must issue.”
In his initiating application filed 23 September 2011, the husband sought to rely on his being ordinarily resident in Australia. As his affidavit sworn 19 September 2011 makes clear, he was, at the time of filing, on notice that his visa permitted him to remain in Australia until 31 October 2011 and that his remaining in Australia after 31 October 2011 would be unlawful. He returned to Indonesia. Therefore I do not accept that, at the time of the filing of the application the husband was ordinarily resident in Australia.
The wife filed an affidavit in the proceedings. I am satisfied that she is a permanent resident of Australia and therefore that she was ordinarily resident in Australia at the time of filing of the application and that I have jurisdiction to consider the application.
The husband relied upon an affidavit sworn by him on 19 September 2011 and a further affidavit sworn on 16 February 2012. When the matter was mentioned before me on 13 February 2012 I asked whether it was intended that the husband would file affidavit evidence from his parents and was told he would not.
The wife filed an affidavit sworn 16 February 2012.
Both parties were represented at the hearing.
FACTS
The husband was born in Indonesia in 1984. At the time of the marriage he was 27 years old.
He came to Australia in 2005 as a student and completed a degree in 2008. Between 2005 and 2008 he lived in Australia.
In 2007 he met the wife and they commenced a relationship as boyfriend and girlfriend in 2008.
In 2008 he applied for permanent residence in Australia and that application was refused.
In 2009, when his application for permanent residence had been refused, he returned to Indonesia for a few months. By the time he returned to Indonesia, his relationship with the wife had ended. However, she visited while the husband was in Indonesia and their relationship resumed.
He appealed to the Migration Review Tribunal, unsuccessfully. He was then advised by his migration agent, that, unless he applied for a partner visa, he would have to remain in Indonesia.
He returned to Australia on 21 May 2010 and stayed until 26 June 2010 when he went back to Indonesia.
In about May 2010 he applied for an Offshore Prospective Marriage Visa with the intention of marrying the wife. The Visa was granted in January 2011.
The husband arrived in Sydney on 15 March 2011 and the marriage took place on … March 2011.
The parties separated 3 days later when the husband left.
The husband asserts that he entered into the marriage because he succumbed to pressure from his parents to obtain permanent residency in Australia and because his religious and cultural obligations obliged him to do what his parents wanted.
THE LAW
The grounds on which a marriage is void are set out in Section 23 B of the Marriage Act 1961 (Cth):
23B Grounds on which marriages are void
(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.
(2) Marriages of parties within a prohibited relationship are marriages:
(a) between a person and an ancestor or descendant of the person; or
(b) between a brother and a sister (whether of the whole blood or the half‑blood).
(3) Any relationship specified in subsection (2) includes a relationship traced through, or to, a person who is or was an adopted child, and, for that purpose, the relationship between an adopted child and the adoptive parent, or each of the adoptive parents, of the child shall be deemed to be or to have been the natural relationship of child and parent.
(4) Nothing in subsection (3) makes it lawful for a person to marry a person whom the first‑mentioned person could not lawfully have married if that subsection had not been enacted.
(5) For the purposes of this section:
(a) a person who has at any time been adopted by another person shall be deemed to remain the adopted child of that other person notwithstanding that any order by which the adoption was effected has been annulled, cancelled or discharged or that the adoption has for any other reason ceased to be effective; and
(b) a person who has been adopted on more than one occasion shall be deemed to be the adopted child of each person by whom the first‑mentioned person has been adopted.
(6) For the purposes of this section:
adopted, in relation to a child, means adopted under the law of any place (whether in or out of Australia) relating to the adoption of children.
ancestor, in relation to a person, means any person from whom the first‑mentioned person is descended including a parent of the first‑mentioned person.
The only ground available to the husband is that contained in section (1)(d)(ii), that his consent was obtained by duress.
Justice Lindenmayer summarised the law relating to duress in this context in In the Marriage of Teves III and Campomayor (1994) 18 Fam LR 844:
In considering this question, it is convenient to begin with the well known passage from the judgment of Collins J in Cooper (falsely called Crane) v Crane [1891] P 369 at 375–7, which states:
On these facts, is the petitioner entitled to a decree? On the one hand, it is clear law that if she did not in fact consent to the marriage the court will declare it null. On the other hand, when a person of full age and of sound mind has gone through the ceremony of marriage publicly in the presence of witnesses who discovered nothing in her demeanour to suggest constraint, and has herself complied with the formality of signing her name and answering questions without apparent difficulty or confusion, very clear and cogent evidence must be given before the presumption of consent can be rebutted and the marriage annulled... In order to hold that the ceremony so performed was not binding, I think I should have to infer as a fact one of two things - either that she was so perturbed by terror that her mind was unhinged, and she did not understand what she was doing... or that though she understood what she was doing her powers of volition were so paralyzed that, by her words and acts, she merely gave expression to the will of the respondent and not her own.
Another, similar passage has also been much quoted in subsequent cases. It reads in part:
Public policy requires that marriages should not be lightly set aside, and there is in some cases the strongest temptation to the parties more immediately interested to act in collusion in obtaining a dissolution of the marriage tie. These reasons necessitate great care and circumspection on the part of the tribunal, but they in no wise alter the principle or the grounds on which this, like any other contract may be avoided... Whenever from natural weakness of intellect or from fear - whether reasonably entertained or not - either party is actually in a state of mental incompetence to resist pressure improperly brought to bear, there is no more consent than in the case of a person of stronger intellect and more robust courage yielding to a more serious danger (per Butt J in Scott (falsely called Sebright) v Sebright (1886) 12 PD 21 at 24).
These cases have been cited with approval in contemporary Australian authority (see Kecskemethy (falsely called Magyar) v Maygar, supra at 441, 445; Williams v Williams[1966] VR 60 at 61 63; Di Mento v Visalli(1973) 1 ALR 351 at 355 In the Marriage of Suria (1977) 29 FLR 308 at 313 314; In the Marriage of S (1980) 42 FLR 94 at 103). On this area see also A Dickey, Family Law (2d), 134-139.
The leading Australian case is In the Marriage of S (1980) 42 FLR 94. That case involved a young woman of Egyptian origin who submitted to an arranged marriage due to the coercion of her family. In the circumstances of that case, Watson J (as he then was) held:
She was caught in a psychological prison of family loyalty, parental concern, sibling responsibility, religious commitment and a culture that demanded filial obedience. If she had “no consenting will” it was because these matters were operative - not threats, violence, imprisonment or physical constraint. (at 103)
After quoting from the two English decisions already referred to, his Honour notes, and it is worthwhile to state this fully:
The emphasis on fear and terror in some of the judgments seems unnecessarily limiting. 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 howsoever the oppression arises and irrespective of the motivation or propriety of any person solely or partially responsible for the oppression. (at 104)
Ms Kidson, for the applicant, called my attention to his Honour's remarks about the ordinary meaning of the term “duress”, including, at 104:
When the ordinary man says he is acting under duress it is usually the element of oppression that is uppermost in his mind, not necessarily the form of that oppression, be it constraint, threat or otherwise. It is the effect of the oppression on his mind that should be the operative factor, not the form of such oppression.
Indeed, his Honour went on to say, relevantly, that:
... I cannot see how I can read down the natural and ordinary meaning of “duress” as equated to oppression or “coercion” to such a degree that there is to be no annulment where the lack of real consent arises from non-violent but nevertheless controlling parental coercion.
From the above, it can be said that duress does not necessarily need to involve a direct threat of physical violence so long as there is sufficient oppression, from whatever source, acting upon a party to vitiate the reality of their consent.
A similar interpretation seems to be that now favoured in England. Ormrod LJ in the Court of Appeal in Hirani v Hirani (1983) 4 FLR (Eng) 232 at 234 a case involving similar facts to In the Marriage of S, supra, said, about duress that,
The crucial question in these cases, particularly where a marriage is involved, is whether threats, pressure, or whatever it is, is such as to destroy the reality of consent and overbears the will of the individual.
Significantly, his Lordship also read down some widely quoted remarks by Sir Jocelyn Simon P in the earlier English case of Szechter v Sczechter [1971] P 286 at 297–8 which appeared to say that a threat to “life, limb or liberty” was necessary (also at 234).
However, the case before me concerns actual threats of violence. The test applied in In the Marriage of S, supra, is the correct approach. But, where difficulty has arisen in the past, including in that case, it has usually been in a situation where some non-violent pressure was involved or where, for example, the other party had threatened to commit suicide. Admittedly, in the present case, there does not seem to have been a specific threat as occurred, for instance, in Di Mento v Visalli, supra, (where the father of the applicant said he would shoot her if she did not marry the respondent), but on the authorities to which I have referred, that does not seem to be essential.
In the present case, the real issue is whether the facts satisfy the test. To borrow again from the remarks of Butt J in Scott (falsely called Sebright) v Sebright, supra,
The difficulty consists not in any uncertainty of the law on the subject, but in its application to the facts of each individual case. The question here is whether the facts disclosed in evidence bring this case within the rule (at 24).
His Honour went on to say:
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 it is at the ceremony that the applicant must have been under duress, in order to succeed in her application, the fact that no material has been directed to this issue of proximity is of concern. As the cases establish, it is not when someone agrees to marry another that duress must have been present, it is when they actually marry, although, as I have said, duress can result from conduct prior to the ceremony.
The Evidence
There is no evidence before me that pressure was maintained by the husband’s parents on him between May 2010 when he applied for the prospective Marriage Visa and 15 March 2011 when he arrived in Australia. There is no evidence that any pressure was applied to the husband by his parents between 15 March 2011 and … March 2011 when the marriage occurred.
In so far as I have any evidence, the husband’s affidavit contains statements of his parents’ wishes, about his religious and cultural obligations, of threats by his parents that their health will suffer and of psychological manipulation. Had an objection been taken to much of the husband’s affidavit evidence, it would have been rejected. The husband’s assertions and conclusions are not admissible evidence.
Evidence could have been given by the husband’s parents as to their expectations of the husband and the pressure they placed on him. Indeed I enquired whether such evidence would be forthcoming. In the absence of any explanation for the absence of evidence from the husband’s parents, I must assume that their evidence would not have assisted the husband’s case.
There was no admissible evidence before me of the relevant religious, filial or social obligations of the husband’s culture, family or religion, such as could have been provided by an appropriately qualified expert.
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 insufficient to ground a finding of fact.
In the absence of admissible evidence, and having regard to Justice Lindenmeyer’s admonition that a decree of nullity should not be issued lightly, I am not satisfied that the husband has established the ground for relief and the application will be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 23 February 2012.
Associate:
Date: 23 February 2012
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