WALTON & ESPOSITO
[2016] FamCA 336
•29 February 2016
FAMILY COURT OF AUSTRALIA
| WALTON & ESPOSITO | [2016] FamCA 336 |
FAMILY LAW – Nullity of Marriage – Whether consent obtained by fraud – Whether confined to fraud as to nature of the ceremony or identity of the other party - Where husband alleged “marriage of convenience” for immigration purposes – Neither the marriage nor the relationship was consummated – The wife did not appear at the hearing of the application nor did she file any affidavit material – Application dismissed as term fraud as it appears in s 23B(1)(d)(i) of the Marriage Act 1961 (Cth) has limited scope and is concerned with fraud as to identity of the other party or the nature of the ceremony, and not as to the motives of a party in entering into the marriage
| Family Law Act 1975 (Cth) |
Marriage Act 1961 (Cth) ss 23 and 39
Moss & Moss (1897) P 263
In the Marriage of Osman & Mourrali (1989) 13 Fam LR 444
Hosking & Hosking (1995) FLC 92-579
| APPLICANT: | Mr Walton |
| RESPONDENT: | Ms Esposito |
| FILE NUMBER: | HBC | 815 | of | 2015 |
| DATE DELIVERED: | 29 February 2016 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 29 February 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | No appearance |
| SOLICITOR FOR THE RESPONDENT: |
Orders
The husband’s application for Decree of Nullity filed 9 December 2015 be and is hereby dismissed.
IT IS DIRECTED
A copy of the reasons for these orders be taken out and placed on the court file.
There be no order as to costs.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Walton & Esposito 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 HOBART |
FILE NUMBER: HBC 815 of 2015
| Mr Walton |
Applicant
And
| Ms Esposito |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Mr Walton, (‘the husband’), filed in this Court on 2 November 2015 an application where he seeks an order of nullity, claiming that his marriage to Ms Esposito, (‘the wife’), is void. This matter is heard on an undefended basis as the wife did not attend Court, nor did she file an appearance.
I am satisfied that the wife knows about these proceedings having regard to a number of documents. The first is the affidavit of service of Ms B filed 13 November 2015 in which she certifies that she served upon the wife:-
(a)a copy of the application for a nullity order;
(b)the Court brochure; and
(c)a copy of the affidavit husband filed and sworn 2 November 2015.
Secondly, I have had regard to the material contained in the affidavit of Ms B filed 12 February 2016 in which she provides evidence that the affidavit of the husband sworn and filed 10 February 2016 was personally served upon the wife.
The wife was called outside the precincts of the Court shortly after 10 o’clock this morning, and there was no appearance by her. As such, I am satisfied that the matter should proceed on an undefended basis. I raised with the husband my concerns about the basis of his application for a nullity and invited him, if he wished to, to seek an adjournment to obtain legal advice. The husband declined that opportunity and said in submissions, in addition to his affidavits, words to the effect that he believes that ‘he was used to enable the wife to get herself to Australia’. He asked me to have regard to the circumstances that as soon as she was able to do so, that is, when her visa was approved, she left him.
As to background, the husband is aged 68, and he is retired. He lives at C Town. The husband asserts, and I accept, that he is a resident of Australia, that he is present in Australia, he is an Australian citizen and he is domiciled in Australia. I accept those as findings of fact.
The wife was born, apparently, in the Country D in 1989 and is now aged 31.
The parties married in 2015. They separated on 7 October 2015 when the wife left the husband. As I indicated earlier, the marriage certificate is in evidence before me.[1] There is no challenge to the formal validity of the marriage. It is a question of fraud to which I have been referred by the husband.
[1] Exhibit H1.
In his first affidavit of 2 November 2015, the husband described his relationship with the wife as a classic “mail order bride”. He says they met through mutual friends from Tasmania, and began correspondence in about August or September 2013. The husband says they spoke on a daily basis. In November 2013 a cyclone struck the area in the Country D where the wife lived. He sent money to assist the wife and her family in re-establishing their home and supported her family from that date until about March or April 2015. He deposed that he first met the wife in February 2014: at an airport in City F, when he travelled to the Country D for a two week period.
The husband contends that in her application and in correspondence with him she said she was single and had never been married and had no children, but after her arrival in Australia she said that she had some four children.
In April 2014 she was granted a visitor’s visa, and came to Tasmania from May through to August 2014 so that she could decide whether or not she liked it here and whether or not “we were compatible for marriage”. The wife told the husband she did not wish to have sex before marriage, and the husband agreed to this course. The parties applied for a prospective marriage visa, and this was granted in last 2014 or early 2015.
The wife arrived in Australia on about 9 January 2015. The parties married later in 2015 at E Town in the State of Tasmania. After the parties married, the evidence of the husband is that wife said they had rushed into marriage too soon. He said the wife wanted to wait until the latter part of the nine month period allowed for the parties to be married before they commenced any intimate relations. Towards the end of that period, the wife disclosed that she did not want any such intimate relations.
The husband asserted that within two weeks after the notification of approval of the second stage of the marriage visa, the wife left the matrimonial home. The parties have not since cohabitated nor lived together under the same roof.
There was some telephone communication between the parties. There was an allegation of family violence, apparently, and a Police Family Violence Order was made and served upon the husband on 23 October 2015. There is no information before me upon what factual basis, if any, that application was made.
In his second affidavit filed 10 February 2016, the husband reiterated the history, to which I have earlier alluded, in terms of the relationship with the wife over the period of time. Much of it is somewhat repetitious, although I offer no criticism, given that he is representing himself. In the final paragraphs of his affidavit, the husband asserts the following:-
9.Our marriage was not a real marriage but a scam. My wife used me only to gain access to Australia, and nothing more. She didn’t contribute to (sic) anything towards our costs of living or even help with home chores.
10.Under section 23 of the Marriage Act 2006 it states: “the marriage is void where (d) the consent of either parties was not real consent because:
(i) it was obtained by fraud.
That is the factual context in which the husband seeks a declaration that the marriage is void, and therefore seeks a decree of nullity of the marriage.
As to the law, s 39 of the Family Law Act 1975 (Cth) (‘Family Law Act’) provides the Family Court with jurisdiction in relation to matrimonial causes. A decree of nullity of marriage, such as that being sought by the husband, is defined as a matrimonial cause under s 4, ss (1) of the Family Law Act. Section 44 of the Family Law Act provides that proceedings under this Act may be instituted by application, and that includes proceedings for a decree of nullity of marriage. It is clear that the Family Court has jurisdiction and power to make such an order. Section 51 of the Family Law Act provides that an application shall be based on the ground that the marriage is voice.
It is of value to look at s 23B of the Marriage Act 1961(Cth) (‘the Marriage Act’):-
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:
and then it includes:-
(d)the consent of either of the parties is not a real consent because:
(i)it was obtained by duress or fraud.
and the subsection finishes off:
… and not otherwise.
It is under that particular ground that the application for a declaration of nullity of this marriage is made.
Sir Francis Jeune P, in Moss & Moss (1897) P 263, at pages 268 to 269 said:-
But when in English law fraud is spoken of as a ground for avoiding a marriage, this does not include such fraud as induces consent, but is limited to such fraud as procures the appearance without the reality of consent. The simplest instance of such fraud is personation … in every case where a fraud has been held to be a ground for declaring a marriage null, it has been such fraud as has procured the form without the substance of agreement, and in which the marriage has been annulled, not because of the presence of fraud, but because of the absence of consent.
This was considered by Justice Nygh in the Marriage of Osman & Mourrali (1989) 13 Fam LR 444, where his Honour said at paragraph 21 the following:-
This conclusion is supported by the longstanding attitude of English, and by inheritance, Australian law, whereby marriage is valid even though neither party intended to cohabit. This is a peculiarity of the English law, and, as Vervaeke v Smith illustrates, is not shared by the rest of the world. No doubt, its origins lie in a concern with property inheritance and dynastic relationships. Indeed, a distinguished historical line of Englishman from the monarch downward would have been liable to have their marriages annulled if the intention to cohabit had of been of the essence! If cohabitation is not of the essence, where neither party desired it, how can it then become the essence of (sic) only one party seeks it.
He then goes on to say at paragraph 22:-
For those reasons I have to range myself with the timid souls who adhere to orthodoxy at the risk of being excoriated by Mr Davis …
The changes brought by the Family Law Act strengthen my views. Annulment had some attractions in the past where divorce was difficult and seen as shameful. The ground for divorce of one year requires no investigation of guilt and should not produce any stigma. It is easily established and, indeed, the husband in this case, as I now call him, would have been relieved far more expeditiously and cheaply of her bond some time ago had he applied for a dissolution.
The Full Court of the Family Court in the unreported case of Kennedy & Smith [2003] FamCA 136, considered Osman & Mourrali (supra) and considered the case of Hosking & Hosking (1995) FLC 92-579 in which the husband complained that his consent had been obtained by the wife’s fraud in that she represented to him that they would live together following their marriage and quoted the words of Lindenmayer J in Hosking & Hosking at page 81-746:
Indeed, as a matter of statutory interpretation, it may be appropriate to take note of the presence in s.23B(1)(d)(i) (and its counterpart in s.23), of the term "duress", which appears immediately before "fraud" in that provision, viz.:
...
(d) the consent of either of the parties is not a real consent because:
(i) it was obtained by duress or fraud" (the emphasis is mine).
In the case of duress, the relevant time at which a person must be under the required degree of oppression is at the ceremony itself. That is, the question is not whether a person is under duress when he or she accepts a proposal of marriage, however menacingly put, but when the ceremony itself is performed. As much is clear from the discussion of duress in the cases of Cooper (falsely called Crane) v Crane [1891] P 369, 23-24; Kecskemethy(falsely called Maygar) v Kecskemethy (1961) 2 FLR 437, 448; Walton v Walton [1966] VR 60, 63.
Thus, there exists, in the context of duress, a clear need for proximity with the ceremony; the actual point at which two people become married. The fear arising from duress must be acting upon the relevant party at that point. By analogy, and also by virtue of the noscitur a sociis principle and because, in my opinion, the two terms are ejusdem generis, it is difficult to see why the term "fraud" should import considerations beyond the scope of the rest of s.23(1)(d) or s.23B(1)(d), as the case may be. To take such a broad view would allow inducements and misrepresentations, which, while morally shameful, are merely precursors to the actual marriage of the parties, to render the marriage void. The giving of the consent to a marriage at the ceremony, rather, is the act with which a court must concern itself when questions of the essential validity of a marriage are raised. The cases with respect to duress, which I have set out above, establish that it is the actual choice, not merely the reasons for or inducements to that choice, that is the concern of the court.
Given the approach adopted by the Full Court in Kennedy & Smith (supra) I can only follow the authority as it presently sits. I am not satisfied that the marriage was brought about, or the marriage itself came about by fraud, given the narrow approach imposed by the Full Court, and the narrow approach discussed by Justices Lindenmayer and Nygh.
It is clear, on the evidence before me, that the husband was induced to marry on the basis of a variety of factors, including an intimate relationship; and including, in his mind, a view that the marriage would be for a significant period of time, and that the wife would remain with him. It is also clear that the husband had planned this marriage some time in advance, as the parties had taken steps to apply for visas and the like.
Fraud within the meaning of s 23B of the Marriage Act 1961 (Cth) has not been established, that is fraud as to the identity of the other party or the nature of the ceremony. As such, the application is dismissed. And I will so order.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on
29 February 2016.
Associate:
Date: 29 February 2016
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