WEI & CHU

FAMILY COURT OF AUSTRALIA

WEI & CHU

[2012] FamCA 781

FAMILY LAW – NULLITY – Whether consent obtained by duress – Where the wife tried to jump out of the car when the husband told her he did not want to get married and the wife told the husband that she would end the relationship if they did not get married – Found that the wife’s coercion could not be regarded as duress – Whether the husband was mentally incapable of understanding the nature and effect of the marriage ceremony – Where the husband suffers from schizophrenia – Where the evidence of the husband’s treating doctors and the husband’s own affidavit evidence indicate that the husband understood the nature and effect of the marriage ceremony – Application dismissed

Marriage Act 1961 (Cth) ss 23B, 42

In the Marriage of Teves III and Campomayor (1994) 18 Fam LR 844

APPLICANT:

Mr Wei

RESPONDENT:

Ms Chu

FILE NUMBER:

SYC

1748

2011

DATE DELIVERED:

7 September 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

3 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Steward

SOLICITOR FOR THE APPLICANT:

Jason Li Lawyers

COUNSEL FOR THE RESPONDENT:

No Appearance

Orders

That the application filed 15 May 2012 seeking a decree of nullity in relation to the marriage between the parties solemnised on … 2007 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wei & Chu 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 1748 of 2011

Mr Wei

Applicant

And

Ms Chu

Respondent

REASONS FOR JUDGMENT

Before the court is an application filed by the husband Mr Wei (“the husband”) seeking a declaration of nullity in relation to a marriage which took place in 2007 between himself and Ms Chu (“the wife”).
The wife appeared at the commencement of the hearing but, in the course of the day, indicated to the solicitor for the husband that she did not wish to take any further part in the proceedings and left the court. Accordingly since she was not available for cross-examination, the affidavit which had been filed by her was not read in the proceedings.
The husband is an Australian citizen and is domiciled in Australia.

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.
Before me it was submitted on behalf of the husband that either his consent was obtained by duress (section 23B(1)(d)(i)) or that he was mentally incapable of understanding the nature and effect of the marriage ceremony (section 23B(1)(d)(iii)).
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

In 2003 the husband was diagnosed, by a China based psychiatrist, with an unspecified psychotic disorder and prescribed medication. In February 2004 the husband returned to Australia to pursue his studies and was referred to a psychiatrist, Dr L, who diagnosed him as suffering from a psychotic illness either affective or schizophrenic in nature. In a report dated 7 March 2004 Dr L said he was unable to make an exact diagnosis but had prescribed medication.
In August 2004 Dr L prepared a further report for the purpose of representations being made to the University at which the husband was studying and in that report he confirmed a diagnosis of schizophrenia. Dr L noted that, with the institution of psychiatric treatment since December 2003 the husband’s mental illness had slowly but steadily made improvement and that, in the past one or two months, his mental condition had further improved. Dr L noted that the husband had insight into his mental illness and had the full support of his parents, and that the prognosis was therefore a good one as far as the diagnosis of schizophrenia was concerned. The husband continued to consult with Dr L who continued to manage his condition and prescribe medication.
In February 2006 the husband met the wife at a friend’s birthday party. They commenced a romantic relationship in about March of 2006.
In June 2006 the husband enrolled in a tertiary institution to study finance, marketing and law hoping to be admitted into a course of study in 2007.
On 21 June 2006 Dr L produced a further report in which he noted that the husband had seen him on a number of occasions since March 2004. The husband was seen in May 2005 for a review, when he was found to be mentally stable, and again, on 17 June 2006, when the husband told Dr L that he had been taking his medications regularly for the past year. Dr L said that mental examination on 17 June 2006 revealed that the husband was in good contact (sic), normal in mood, and not harbouring any active psychotic features (such as delusions or hallucinations). Dr L said “clearly he has remained mentally stable in the past one-and-a-half years, as he has been taking his medications regularly.”
The relationship between the husband and the wife continued throughout 2006. In December 2006 they holidayed together in China and in January 2007 they holidayed, together with her family, in East Asia.
In April 2007 the husband says he stopped taking his medications because he felt that his mental illness has ceased and he did not want to be on medication for his entire life. He says he then began to experience hallucinations of voices telling him to do things and speaking nonsense. Significantly he does not suggest that the voices said anything to him in relation to his relationship with the wife or in relation to the marriage.
In April 2007 the husband says the wife told him she wanted to get married but he rejected her proposal.
Notice was given of intention to marry, the husband says by the wife, without his consent, and while he was asleep. Counsel for the husband said this was done over the internet. I do not accept the husband’s evidence.
Section 42 of the Marriage Act 1961 (Cth) contains the provisions relating to notice.
Section 42(1) provides that:
(1) Subject to this section, a marriage shall not be solemnised unless:
(a) notice in writing of the intended marriage has been given in accordance with this section and has been received by the authorised celebrant solemnising the marriage not earlier than 18 months before the date of the marriage and not later than 1 month before the date of the marriage;
(b) there has been produced to that authorised celebrant, in respect of each of the parties:
(i) an official certificate, or an official extract of an entry in an official register, showing the date and place of birth of the party; or
(ii) a statutory declaration made by the party or a parent of the party stating that, for reasons specified in the declaration, it is impracticable to obtain such a certificate or extract and stating, to the best of the declarant's knowledge and belief and as accurately as the declarant has been able to ascertain, when and where the party was born; or
(iii) a passport issued by a government of an overseas country, showing the date and place of birth of the party; and
(c) each of the parties has made and subscribed before that authorised celebrant a declaration, in accordance with the prescribed form, as to:
(i) the party's conjugal status;
(ii) the party's belief that there is no legal impediment to the marriage; and
(iii) such other matters as are prescribed.
Section 42(2) provides that:
(2) A notice under subsection (1):
(a) shall be in accordance with the prescribed form and contain such particulars in relation to the parties as are indicated in the prescribed form; and
(b) must be signed by each of the parties; and
(c) if a party signs the notice in Australia--must be signed in the presence of:
(i) an authorised celebrant; or
(ii) a Commissioner for Declarations under the Statutory Declarations Act 1959 ; or
(iii) a justice of the peace; or
(iv) a barrister or solicitor; or
(v) a legally qualified medical practitioner; or
(vi) a member of the Australian Federal Police or the police force of a State or Territory;
I do not accept that the wife could have complied with the provisions of section 42 of the Marriage Act 1961 (Cth) without the husband’s co-operation and his signature. I do not accept that the wife could have lodged the notice over the internet.
In order for the notice to be accepted, the husband must have produced his birth certificate or other prescribed documentation. He must have lodged a statutory declaration as to his conjugal status and his belief that there was no legal impediment to the marriage. He must have signed the notice pursuant to subsection 42(1) on the prescribed form. The signature must have been witnessed by a person nominated in subsection 42(2)(c).
The husband says that the wife regularly pressed him to agree to the marriage between April and May 2007. On 21 May 2007 while driving in a car, the husband told the wife that he did not want to get married. He says that the wife reacted by trying to jump out of the car in a multi-laned busy traffic. He does not say she succeeded or what she actually did. He says he feared for the wife’s safety, and for his own safety, and did not want something bad to happen to her, and so he agreed to the marriage.
The wife told the husband that she would end their relationship if they did not get married. He says “I felt forced by (the wife) to enter into the marriage, but I was feeling very stressed and confused. I wanted the stress and confusion to go away, and I thought that complying with (the wife’s) wishes would do so.”
The husband bought an engagement ring and wedding bands for the wife and himself. Those facts are not included in his affidavit but appear from the report of Dr N, a psychiatrist instructed for the purpose of the proceedings. Reference will be made to Dr N’s evidence later in these reasons.

In 2007 the husband and the wife went to the Registry Office. The husband says he went “with (the wife) to get married”. On his own evidence, he understood the nature and effect of the ceremony which was about to take place. He knew he was going there to be married. The ceremony was performed, the wedding bands were exchanged and the husband signed the marriage certificate.
The husband says “I did not understand the nature and effect of the marriage ceremony. I was unaware that I was signing a legal binding document and that it would constitute a marriage and lifelong commitment.” In light of the husband’s evidence that he attended at the Registry Office in order to marry the wife I do not accept that he did not understand the nature and effect of the marriage ceremony.
About ten people had been invited to be present at the ceremony and after the ceremony they went together to a restaurant nearby for lunch.
The husband says that neither he, nor the wife had met the celebrant beforehand and they did not “customise” the service. “There was no dowry which is customary in the Chinese culture, no wedding ceremony, no honeymoon and we had not received blessings from our parents.”
Whilst the form of ceremony may not have been that which would be customary in Chinese culture there is no doubt that the parties underwent a ceremony of marriage and that the husband was fully aware of the nature of the ceremony.
A few days after the marriage ceremony the husband told his father about the marriage. The husband in his evidence said that he realised that the marriage had been effected by his signing the marriage certificate and that he could not “withhold it”. Again, this is evidence that the husband fully understood the nature and effect of the ceremony.
The husband says “soon afterwards I realised that the symptoms of my schizophrenia were returning, and I began to take my medication again”.
In relation to the husband’s assertion that his consent to the marriage was obtained by duress he relies upon the incident on 21 May 2007 when, he says, the wife reacted to his refusal to marry her by “trying to jump out of the car”. He also relies upon the fact that the wife told him that she would break up with him if he did not get married. He says because of those two matters he felt forced to enter into the marriage.
I accept, as was submitted by counsel for the husband, that duress, at the time of the marriage ceremony can be induced by events leading up to the ceremony, and that evidence about events occurring immediately before the ceremony can be important. However I do not accept that the matters upon which the husband relies establish that the coercion which was applied by the wife could be elevated to the extent where it could be regarded as duress.
In support of his assertion that he was mentally incapable of understanding the nature and effect of the marriage ceremony the husband relies upon a report of Dr U prepared for the purpose of these proceedings. Dr U interviewed the husband on 18 April 2011, and 9 May 2011 and interviewed the husband’s father on 18 April 2011. Dr U also had access to the clinical notes on the husband from his own clinic between 12 December 2003 and 30 December 2010 and the records of Dr U.
Dr U notes that the husband returned to China permanently in December 2008 and saw Dr U on 2 January 2009. The husband told Dr U that he had consulted another Australian psychiatrist, Dr S in 2006 “and that he got married a year ago”. There is no suggestion in Dr U’s report that, in 2009, the husband was complaining that he did not understand the nature and effect of the marriage ceremony. Dr U saw the husband again on 20 January 2009 and reported that he was working in his father’s company and had become more settled and less anxious. In April 2009 Dr U reports that the husband had no psychotic or depressive symptoms and was coping well with his work. On 3 July 2009 Dr U reports that the husband mentioned about being bothered by his “marital problem”. He said his wife was not good to him and she wanted to get money from him and his parents. The husband’s condition had improved again when seen by Dr U on 3 November 2009 and 9 April 2010.
Dr U in his report says
He came again on 18 April 2011 and requested me to write a psychiatric report on him as he wanted to apply for annulment of his marriage. He said before the marriage, he had stopped the psychiatric medications. He felt stressful due to the examinations. He had relapsed and suffered from auditory hallucinations again. He said he was ‘coerced’ by his girlfriend to get married. He did not get consent from his parents about the marriage. What he wanted then was to find sanctuary from his sufferings in his girlfriend’s arms and had not thought about the significance and consequences the marriage would bring to him and his family, especially without his parents prior approval.

Dr U does not, and could not, comment on the husband’s mental state in 2007. He does however say:
I believe in what Mr [Wei] alleges because I know him well. He is a righteous person and good Christian.
Neither the marriage nor his wife could be accepted by his family members, despite efforts made. Practically the couple has been separated for two years and the marriage is going to breakdown.
Mr [Wei] claims there is no pecuniary gain in mind in applying for the annulment of his marriage. There is however significant psychological gain which should be beneficial to his mental health. This would also bring relief and comfort to his parents.
If the marriage is annulled he can get married again in the future in a Christian Church. The matrimony would be accepted and blessed by all his folks and to his belief, his past wrong doings are rectified and he could start life afresh.
There is nothing in Dr U’s report which suggests that the husband did not understand the nature and effect of the marriage ceremony and indeed Dr U makes it clear that the husband felt “coerced”.
The husband also relied upon a report from Dr N, a psychiatrist practising in Sydney. That report was prepared for the purpose of the application, and Dr N had not been a treating doctor. He was provided with previous reports from Dr L but was otherwise reliant upon the husband’s accounting of his history.
The husband told Dr L that he had met the wife at a friend’s birthday party in Sydney on 2 February 2006. They formed a relationship about a month after they first met and moved in together a month or so later.
They lived initially in a house owned by his parents and then moved into an apartment owned by the wife where they lived until they separated in November 2008. The husband told Dr N that in the first year of their relationship there was no serious discussion about marriage although “he said that it came up in what was clearly understood to be a joke”.
The husband said that on February 2007 the wife raised the issue of wanting to get married in April and told him that, if they did not get married, she would break up with him. He told Dr N that the wife was “approaching an age when most Chinese women would like to be married”.
The husband told Dr N that there was never a formal engagement or any kind of announcement or engagement party but he bought an engagement ring and he bought wedding bands which were exchanged at the ceremony. Dr N concludes:
From the history elicited and corroborative information that is available, I believe (the husband) was affected by an acute exacerbation of his chronic schizophrenic illness at the time of his marriage in May 2007 and was hence in an unfit state to sign a marriage contract. He reported disorganised thinking, impaired volition and particular sensitivity to external stressors during acute episodes of illness, which I believe resulted in significant impairment in his ability to appreciate the full nature and effect of the marriage ceremony.
The acute exacerbation of mental illness around the time of the marriage also deprived Mr [Wei] of the ability to act in an assertive manner to delay the marriage, or resist the pressure applied by Ms [Chu] to get married.
Dr N suffers from the difficulty of reconstructing events and diagnoses some five years after the event. He was reliant on what the husband told him. He did not have all of the information that is before the court. What the husband told Dr N does not accord with his evidence in the application. In order for Dr N’s opinion to be accepted, the factual substratum on which the opinion is based needs to be proven by admissible evidence. That factual basis has not been established from the husband’s evidence.
Accordingly I prefer the evidence of Dr L and Dr U, who were the husband’s treating doctors, in so far as they go to the husband’s ability to understand the nature and effect of the marriage ceremony.
The husband’s own evidence is that, although reluctant to marry, he purchased an engagement ring, purchased wedding bands, attended at the registry office, went through a ceremony that he understood was a marriage, signed the marriage certificate and, a few days later, told his father that he could not “withhold the marriage” because he had already effected the marriage.
I do not accept that the husband’s consent to the marriage was given under duress and I do not accept that he did not understand the nature and effect of the ceremony.
I therefore dismiss the application.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 7 September 2012.

Associate:

Date: 7 September 2012

[2012] FamCA 781

7 September 2012

Key Legal Topics

Areas of Law

Family Law