Ward and Carper

[2010] FamCA 516

FAMILY COURT OF AUSTRALIA

WARD & CARPER [2010] FamCA 516

FAMILY LAW – MARRIAGE – Nullity

Family Law Act 1975 (Cth)

APPLICANT: Mr Ward

RESPONDENT: Ms Carper

FILE NUMBER: MLC 2738 of 2010

DATE DELIVERED: 10 May 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Justice Cronin

HEARING DATE: 10 May 2010

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: No appearance

Orders

1. That the applicant have leave to proceed in the absence of the respondent on an undefended basis this day.

2. That the application filed on 25 March 2010 is dismissed.

3. That the reasons be transcribed.

IT IS NOTED that publication of this judgment under the pseudonym Ward & Carper is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2738 of 2010

MR WARD

Applicant

And

MS CARPER

Respondent

REASONS FOR JUDGMENT

1. In February this year, Ms M who is recorded on a certificate of marriage as an authorised marriage celebrant solemnised a marriage between Mr Ward and Ms Carper.  According to the marriage certificate, their respective conjugal status was shown as never validly married.  On 25 March 2010, Mr Ward filed an application in this court seeking an order that the marriage performed in February 2010 be annulled.  On 1 April 2010, according to an affidavit by Ms E, the application for the annulment, together with two affidavits, one by Mr Ward and one by his mother, were served upon Ms Carper at a location which Ms Carper declined to disclose. 

2. According to the affidavit of Ms E, at the time of service, she asked Ms Carper whether she was the person referred to in the document and Ms Carper replied that she was.  At the same time, Ms E asked Ms Carper to sign an acknowledgement of having received the application and the respective documents to which I have referred.  When Mr Ward filed his application, he also filed the certificate of marriage to which I have referred.  It is abundantly clear from looking at the certificate of marriage and the acknowledgement of service form that the signature is identical and to that extent, I am satisfied that Ms Carper has been personally served.  Ms Carper has now had one month and 10 days and has not filed any material.

3. She has not attended court today and, as I understand it, nothing further has been heard from her.  To some extent, it might be seen that the application is undefended, but what that means is that Mr Ward has to prove his case according to law.  In support of his application, Mr Ward set out the evidence upon which he relied in an affidavit.  He filed that affidavit on 25 March 2010.  He described himself as a tradesman and that he became briefly acquainted with Ms Carper three years ago when they worked in the same place.  He said she moved to live in western Victoria and during that three-year period, he heard nothing further of her.  He said that on 1 December last year, Ms Carper appeared.

4. He said that he commenced a relationship with her three days after they met and that means that the relationship commenced on 4 December 2009.  Mr Ward then said that he was withdrawing from a cannabis addiction and he was grateful that Ms Carper would be interested in him.  He said that on 6 December last year, she moved into his home, but said she would not stay unless he agreed to marry her.  He said he felt an enormous pressure after such a short passage of time, but to use his words, “with impaired judgment from the withdrawal of symptoms, my reasoning and logic was diminished and I agreed”.  That is the evidence that he initially points to as being some form of pressure or duress that gives rise to the annulment application. 

5. Two days later, on 8 December 2009, Ms Carper chose an engagement ring and wedding band for which Mr Ward paid.  He then cleared her debts, including money owing to Centrelink.  Over the ensuing weeks, he paid money she owed on a washing machine and on a motor car.  He then said that he bought a queen-size bed and other expenses such as furniture and then paid for wedding photos.  In anticipation of a marriage, he paid $1000 for her wedding dress, shoes and the wedding ceremony.  As a wedding gift, he bought her a brand new laptop computer, all of which went with Ms Carper on 2 March when, whilst he was out working, she left him.  He found out that she had cut her name off the wedding certificate.

6. At the time that the parties were contemplating the marriage, it appears that Ms Carper announced that she was pregnant and a positive pregnancy test was undertaken on 17 January. 

7. In February, the parties were married by the civil celebrant, but immediately after the wedding, according to Mr Ward, Ms Carper became very distant and cold.  Exactly one week after the parties married, Ms Carper left him.  Mr Ward said that the date of separation therefore was in late February 2010.  In his affidavit, Mr Ward said that he had no idea what went wrong and could not believe that Ms Carper left. 

8. There was some discussion between the parties about a variety of things, including the consummation of the marriage;  he saying that they had not even consummated it and her reply was that she would consummate it with someone else.  He then said that he asked about the baby and her response was that if he paid $130 a week into her bank account, he could find out.  Sadly, on 6 March 2010, Ms Carper telephoned Mr Ward to say that she had miscarried. 

9. In the end, Mr Ward described in his affidavit the following:

   I wish to have this marriage annulled as I felt enormously pressured to marry her.  She told me that if we didn’t get married, she would immediately leave.  I didn’t want her to leave me, so I married her.  She left me anyway after one week of marriage.  I feel like the marriage wasn’t real;  she told me, “I am not your wife.”

10. From the bar table today, Mr Ward has added a few extra descriptions of Ms Carper, but as those matters are not in evidence in the form of an affidavit served upon Ms Carper, they are inappropriate for me to determine this application on, and in any event from what Mr Ward has said, they do not advance the argument any further. 

11. Mr Ward also relied on an affidavit of his mother.  She said that she supported the annulment of the marriage.  She said she was relieved that her son had made his decision to stop smoking cannabis in December last year at the time that Ms Carper came into his life.  She said she was alarmed at the rapid speed at which the romance blossomed. 

12. She said she knew that her son was experiencing withdrawal of cannabis, but he was besotted by Ms Carper.  Apart from those matters, the only other thing that she said of substance was that her son was always a very trusting, generous and gentle soul and was now deeply shattered.  I must say, I have an enormous amount of sympathy for both Mr Ward and for his mother, but that is not the basis upon which I can grant an annulment. 

13. The power to grant an annulment of marriage lies in s 51 of the Family Law Act 1975 (Cth) (“the Act”): The only basis upon which a decree of nullity of marriage can be made is that the basis of the marriage was void. Section 23B of the Marriage Act 1961 (Cth) is the relevant provision to which I then need to turn. The grounds under s 23B are as follows.

    (1)Either of the parties is, at the time of the marriage, lawfully married to some other person.

14. In this case, the marriage certificate suggests that each party had not married previously and Mr Ward does not say otherwise in his affidavit.

    (2)The parties are within a prohibited relationship as defined in the Marriage Act.

15. In this case, there is no suggestion that the parties were in any sort of relationship of that prohibited nature.

    (3)The marriage is not a valid marriage under the law of the place where the marriage ceremony took place because of a failure to comply with the laws of that place.

16. Mr Ward, in this case, relies upon a marriage certificate which has been filed with the court and on the basis of the contents of that certificate, I can only presume that the law was complied with in the execution of all of the various duties of the marriage celebrant that day. 

    (4)The consent of the marriage of either of the parties was not a real consent because it was obtained by duress or fraud.

17. In this case, that cannot be argued because there is a distinct difference between duress and fraud.  Duress must be something of the nature of pressure that relieves the particular person receiving it of the capacity to make a decision about which they are inclined to be involved.  There is no doubt on the evidence of Mr Ward in this case that he knew exactly what he was doing.  He wanted to marry Ms Carper.  What he did not want to have happen was for her to leave him as quickly as occurred.  He feels very much hurt by what has happened and as I said, I can understand why that was the case. 

18. However, this is not a case where there is any evidence of duress.  There is no suggestion of any misunderstanding about who the identities were.  So to that extent, there is no suggestion of any fraud or any mistake as to identity.  There is no suggestion here of the nature of the ceremony being performed not being a marriage ceremony.  That is quite clear when one reads the marriage certificate signed by the authorised celebrant. 

19. Another ground by which the consent of a marriage can be seen to be not a real consent is where a party is mentally incapable of understanding the nature and effect of the marriage certificate.  It is not a question of coming down off a drug habit or in fact being mentally unstable that gives rise to this, but rather that the mental instability establishes that the person does not understand the nature and effect of a marriage ceremony.  That is, of its binding nature and the obligations that go with it.  Again, I point to the fact that Mr Ward wanted a marriage of substance with Ms Carper and unfortunately, did not get it. 

20. The final ground under s 23B is not relevant here and that is that either of the parties was not at marriageable age.

21. In this case, it is quite clear that both of the parties were adults. Sad as it may be, there is no basis upon which I could find that the marriage for the purposes of section 23B of the Marriage Act 1961 was void.  Under those circumstances, the application for nullity cannot succeed.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  25 May 2010