Vun and Pen
[2020] FamCA 682
•14 August 2020
FAMILY COURT OF AUSTRALIA
| VUN & PEN | [2020] FamCA 682 |
| FAMILY LAW – PRACTICE AND PROCEDURE – SUMMARY DISMISSAL – Where wife seeks dismissal under Rule 10.12 of the application by the applicant husband for a declaration of marriage to be declared void and a nullity – Where discussion of applicable principles – Wife’s application dismissed. |
| Family Law Act 1975 (Cth) s 45A, 51 Marriage Act 1961 (Cth) ss 23B, 48 Family Law Rules 2004 (Cth) r 10.12 |
| Ebner & Pappas [2014] FamCAFC 229; (2014) FLC 93-619 Friar & Friar [2011] FamCAFC 71 Kokl & Kokl (1981) FLC 91-078 Lindon v Commonwealth of Australia (No. 2) [1996] HCA 14 Re S (1980) FLC 90-820 Teves III and Campomayor (1995) FLC 92-578 Thorne v Kennedy [2017] HCA 49 |
| APPLICANT: | Mr Vun |
| RESPONDENT: | Ms Pen |
| FILE NUMBER: | PAC | 3665 | of | 2018 |
| DATE DELIVERED: | 14 August 2020 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | By way of written submissions last received on 7 July 2020 |
REPRESENTATION
| APPLICANT – SELF-REPRESENTED LITIGANT: | Mr Vun |
| SOLICITOR FOR THE RESPONDENT | Linden Legal |
Orders
The wife’s application for summary dismissal be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vun & Pen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3665 of 2018
| Mr Vun |
Applicant
And
| Ms Pen |
Respondent
REASONS FOR JUDGMENT
On 2 November 2018 the applicant husband filed an Initiating Application in this Court. The application sought a declaration that the marriage between himself and the respondent wife conducted at Suburb B in the state of New South Wales in 2014 be declared void and a nullity.
The husband had previously filed an Initiating Application in the Federal Circuit Court of Australia seeking a declaration as to nullity. Regrettably, that court had no jurisdiction to deal with the application.
On 25 October 2018 the application for a declaration as to this nullity filed by the husband in the Federal Circuit Court was transferred by a judge of that court to this Court. On 30 October 2018 a registrar of this Court directed that the husband file and serve an application for nullity in this Court within 14 days. The husband’s application in this Court was filed on 2 November 2018.
On 18 December 2018 the application for nullity was listed before a registrar for directions. It was ordered by the registrar:
a)that the husband file and serve by 5 January 2019 a consolidated affidavit in support of his application for nullity; and
b)that the respondent wife file and serve by 9 February 2019 a Response to the husband’s application and any affidavit sought to be relied upon by her.
On 17 May 2019 the husband’s application was again before a registrar for directions. The proceedings were adjourned for judicial case management before the Court on 5 July 2019. On 5 July 2019 the Court made the following orders and directions:
(1)The husband file and serve a consolidated affidavit of his evidence in chief sought to be relied upon and affidavits of any witnesses sought to be relied upon by no later than Friday, 23 August 2019.
(2)The wife file and serve a Response to the husband’s Initiating Application by no later than 2 August 2019.
(3)The wife file and serve a consolidated affidavit of her evidence in chief sought to be relied upon and affidavits of any witnesses sought to be relied upon by no later than 20 September 2019.
(4)The proceedings are adjourned for judicial case management to 9.30 am on Monday, 30 September 2019 noting that it is the intention of the court on that date to allocate a discrete date for trial.
(5)The parties are granted leave to issue such subpoena as they consider relevant to the issues before the Court with such subpoena to be returnable by no later than 14 days before commencement of trial.
Subsequently, the respondent wife made application for legal aid in respect to the nullity proceedings. On 17 December 2019 the proceedings were remitted to the list clerk for allocation of trial dates.
On 22 April 2020 the respondent wife filed an Application in a Case seeking to have the husband’s application for a declaration as to nullity summarily dismissed. On 6 May 2020 directions were made to facilitate the application for summary dismissal being dealt with by way of written submissions.
The wife was directed to file and serve written submissions in support of her application for summary dismissal by no later than 15 June 2020 and the husband was directed to file and serve his written submissions in response by no later than 6 July 2020.
Subsequently, written submissions were received and on 8 July 2020 judgment in respect to the summary dismissal application was reserved.
Summary Dismissal
The principles applied as to the issue of summary dismissal under the provisions of the Family Law Rules 2004 (Cth) (“the Rules”) are well settled.
Rule 10.12 of the Rules provides:
A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a) the court has no jurisdiction;
(b) the other party has no legal capacity to apply for the orders sought;
(c) it is frivolous, vexatious or an abuse of process; or
(d) there is no reasonable likelihood of success.
Section 45A of the Family Law Act 1975 (Cth) (“the Act”) provides similar relief.
In the seminal decision of Lindon v Commonwealth of Australia (No. 2) [1996] HCA 14 Kirby J. said:
[14]The approach to be taken by the Court to the Commonwealth’s application for summary relief is not in doubt:
1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided.
2.To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.
3.An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
4.Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
5.If notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. A question has arisen as to whether O 26, r 18 applies to part only of a pleading. However, it is unnecessary in this case to consider that question because the Commonwealth’s attack was upon the entirety of Mr Lindon’s statement of claim.
6.The guiding principle is, as stated in O26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
(Footnotes omitted)
In Friar & Friar [2011] FamCAFC 71 the Full Court said at [49] to [50]:
Rules 10.12 (c) and (d) of the Family Law Rules 2004 (“the Rules”) relevantly provide that a respondent may apply for “summary orders” in relation to an application on the basis that it is “frivolous, vexatious or an abuse of process” or has “no reasonable likelihood of success”.
The Rules are properly read as supplementing the power of the Court to dismiss frivolous or vexatious proceedings pursuant to s 118(1) of the Act. The Rules are also to be read in the context of the many cases confirming the Court’s inherent power to dismiss or permanently stay an application which cannot succeed, as to which see the authorities discussed in Bigg v Suzi (1998) FLC 92-799 at 84,974.
The phrase “no reasonable likelihood of success” is, at least in relation to the test to be applied in the summary dismissal proceedings, of relatively recent origin: see Ebner & Pappas [2014] FamCAFC 229; (2014) FLC 93-619 where the Full Court said:
60.In Bretton & Bondai [2013] FamCAFC 168 Finn and Strickland JJ at [59], and May J at [122], considered this is a conceptually different test to the “doomed to fail” test.
61.In Spencer v Commonwealth of Australia [2010] HCA 28, referring to a Federal Court Rule in similar terms to Rule 10.12, Hayne, Crennan, Kiefel and Bell JJ said at [56]:
Because s 31A(3) provides that certainty of failure (“hopeless” or “bound to fail”) need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action, it is evident that s 31A is to be understood as requiring a different enquiry from that which had to be made under earlier procedural regimes. It follows, of course, that it is dangerous to seek to elucidate the meaning of the statutory expression “no reasonable prospect of successfully prosecuting the proceeding” by reference to what is said in those earlier cases.
62.The applicable test was considered by another intermediate court of appeal, the Victorian Court of Appeal in Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd [2013] VSCA 158. At that time the relevant legislative test in Victoria was “no real prospect of success”. There at [27] Warren CJ and Nettle JA said:
... whatever might be the practical effect of the new test, it is difficult to disagree with McMurdo J in Gray v Morris and McMurdo P in the Commissioner of Taxation v Salcedo that it should be applied by reference to its own language, without paraphrase or comparison with the previous rule, always bearing in mind the principle that the power to award summary judgment is only to be exercised with caution and, therefore, not unless it is clear that there is no real question to be tried.
(Footnotes omitted)
63. Their Honours continued at [35]:
Upon the present state of authority:
(a)the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
(b)the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
(c)it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
(d)at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.
In the context of the present application the wife asserts that the husband’s application for a declaration of nullity is frivolous, vexatious or an abuse of process and/or there is no reasonable likelihood of success.
Nullity
The application before the Court for a declaration of nullity is made pursuant to s 51 of the Act, and that provision provides that:
An application under this Act for a decree 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 s 23B of the Marriage Act 1961 (Cth) (“the Marriage Act”), 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.
Section 48 of the Marriage Act relevantly provides:
Certain marriages not solemnised in accordance with this Division to be invalid
(1)Subject to this section, a marriage solemnised otherwise than in accordance with the preceding provisions of this Division is not a valid marriage.
(2) A marriage is not invalid by reason of all or any of the following:
(a)failure to give the notice required by section 42, or a false statement, defect or error in such a notice;
(b)failure of the parties, or either of them, to make or subscribe a declaration as required by section 42, or a false statement, defect or error in such a declaration;
(c)failure to produce to the authorised celebrant a certificate or extract of an entry or a statutory declaration as required by section 42, or a false statement, defect or error in such a statutory declaration;
(d)failure to comply with any other requirement of section 42, or any contravention of that section;
(e)…;
(f)….
(3)A marriage is not invalid by reason that the person solemnising it was not authorised by this Act to do so, if either party to the marriage, at the time the marriage was solemnised, believed that that person was lawfully authorised to solemnise it, and in such a case the form and ceremony of the marriage shall be deemed to have been sufficient if they were such as to show an intention on the part of each of the parties to become thereby the lawfully wedded spouse of the other.
The Husband’s Evidence
The husband asserts that the marriage should be declared a nullity for the following reasons:
a)that the notice of intended marriage and the marriage certificate executed on the same day;
b)that he signed the marriage certificate under duress; and
c)that he did not consent to marry the respondent wife.
In support of his application for a declaration as to nullity the husband relies upon his consolidated affidavit filed 7 September 2019 in accordance with the registrar’s directions.
The husband exhibited to his affidavit a certified copy of the marriage certificate relating to the parties’ purported marriage in 2014. It appears that for some reason the marriage was not registered until 2017. The parties’ marriage was performed by a celebrant in the presence of two named witnesses.
The husband asserts that he has had a history of depression and anxiety since 2008. That history is supported by a short statement by his treating general practitioner dated 20 February 2018.
The husband came to Australia in 1997 and is an Australian citizen.
He asserts that he met the respondent wife in about June 2013. He and the respondent wife, he asserts, met from time to time both in Australia and China and commenced a sexual relationship it appears by late 2013.
In about April 2014 the respondent wife travelled to Sydney again and stayed at the husband’s residence. There were discussions between the husband and wife in relation to her migration status and her wish to remain in Australia and the development of their interpersonal relationship. The husband asserts that he was reluctant to marry the respondent simply to address her migration status and to facilitate her being able to remain in Australia.
Otherwise, the husband asserts that over a period of time from August 2013 to 2014 he provided to the wife significant funds that he remitted to her in China.
In about June 2014 the husband and wife travelled to China to visit the husband’s family. After visiting the husband’s family, the wife, he asserts, again raised the question of her immigration status and her desire for she and her daughter to be able to reside permanently in Australia. The husband asserts that he was noncommittal in his response, at which the wife drove the motor vehicle that they were both travelling in erratically and said words to him to the effect of “if you don’t want to help me, then I will make your life a living hell and you will die a thousand deaths. We are going to die together now”.
Then in July 2014 the wife attended at the husband’s property in Sydney without prior notice. She again insisted that they be married. He asserts that she threatened to publish naked photos of him taken by her when they were having sex if he did not agree to marry her. The wife left his premises but a short time later telephoned him to say that she was still at his door. He asserts that he opened the door and observed the wife sitting on the ground with a knife dangling above her wrist. He asserts that the wife said “if you don’t marry me I’ll die here right now, you will be the prime suspect”.
The husband says that he grabbed the knife from her hand and said to her “please do not look for me again”.
The wife attended his premises again in August 2014 and the husband asserts she again sought to harm herself with a pair of scissors and a knife resulting in a small cut on her wrist. The husband asserts that he said to her “I will help you. Please stop hurting yourself and calm down”.
Surprisingly, the wife, he asserts, remained in his property for the following month occupying the spare bedroom.
In late 2014 he saw the wife holding a large chef’s knife in her bedroom. The wife informed him that she had found a marriage celebrant at Suburb B in Sydney available to conduct a marriage ceremony the next day. The husband asserts that he said to her “that’s great. I have already agreed to go with you. Now please put the knife down”.
He says that the wife continued to threaten him, holding the chef’s knife blade to his throat, and demanding that he sign a prenuptial agreement and promising that he will be rewarded with $200,000 “after this is all over”.
The husband did not contact the police in relation to the wife’s conduct.
The marriage
The following day the husband was informed by the wife that she had made arrangements to see a celebrant at Suburb B with the ceremony to be performed in the presence of two of her friends.
He observed the wife pay a service fee to the celebrant. He then said to her “I beg you to reconsider your decision. You had preyed on my mental fragility to get what you want”. He asserts that the wife responded with words to the effect of “if you don’t cooperate and finish the wedding ceremony with me today I will jump to death from the building”. The wife, he then asserts, held a pen to his throat and said “I can still kill you in a public place, you bastard when nobody is watching. I’m not going anywhere until you sign the marriage papers”.
The husband asserts that he then spoke to the celebrant asking if he could fake signing the marriage paper without really getting married. He says that the celebrant responded “yes, it won’t be legally binding if I don’t lodge the papers to the Registry”.
The husband says that the ceremony was performed in English and he did not understand the words that were put to him by the celebrant but was told by the celebrant to say “yes” whenever he was spoken to. He says that he signed the Notice of Intended Marriage and the Marriage Certificate on the same day. He asserts that the Notice of Intended Marriage form was backdated by about a month by the celebrant. Yet the Notice of Intended Marriage exhibited to his affidavit is, as to the signature of the wife, purportedly witnessed by a Justice of the Peace in 2016. The husband’s signature is not witnessed and he asserts that it is a forgery.
The husband asserts that some hours later he returned and spoke to the celebrant and asked that he destroy the marriage papers as he had told the celebrant he did not wish to marry the wife. The husband asserts that he observed the celebrant shred certain documents.
Despite the husband’s version of events on the day of the ceremony, the marriage was registered in 2017.
The husband asserts that he has made enquiries as to the whereabouts of the marriage celebrant, Mr C, but to no avail. He believes that the celebrant’s registration has been cancelled.
Discussion
It is trite to say that that for the purposes of the present application the Court must consider the evidence of the husband at its highest. Such evidence raises significant issues as to the nature of the husband’s consent, if there was consent at all, and if whether such consent was induced by duress by reason of the conduct of the wife.
In Kokl & 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”.
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.
Recently the High Court in Thorne v Kennedy [2017] HCA 49 said:
[26]The vitiating factor of duress focuses upon the effect of a particular type of pressure on the person seeking to set aside the transaction [11]. It does not require that the person's will be overborne [12]. Nor does it require that the pressure be such as to deprive the person of any free agency or ability to decide. The person subjected to duress is usually able to assess alternatives and to make a choice. The person submits to the demand knowing "only too well" what he or she is doing [13]. As Holmes J said in Union Pacific Railroad Co v Public Service Commission of Missouri [14]:
"It always is for the interest of a party under duress to choose the lesser of two evils. But the fact that a choice was made according to interest does not exclude duress. It is the characteristic of duress properly so called."
(Footnotes omitted)
It is readily apparent that the assertions by the husband as to the conduct of the wife at the time of the marriage may well be found at a full hearing, after an examination of all the facts, to constitute duress.
In all of the circumstances it cannot be said that the husband’s case, as he presents it, is frivolous, vexatious or an abuse of process or has no reasonable likelihood of success.
The issue should await a hearing on the merits such that significant issues of fact between the parties can be determined.
The wife’s application for summary dismissal will be dismissed.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 14 August 2020.
Associate:
Date: 14 August 2020
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