Zacharia & Paradisio
[2008] FamCA 688
•1 August 2008
FAMILY COURT OF AUSTRALIA
| ZACHARIA & PARADISIO | [2008] FamCA 688 |
| FAMILY LAW – NULLITY – Application for declaration of nullity of marriage – whether consent of wife obtained by duress or fraud – whether wife mistaken as to identity of husband – no grounds for nullity of marriage established – application dismissed. |
| Family Law Act 1975 (Cth) s 51 Marriage Act 1961 (Cth) s 23B & 48 |
| C v C (Nullity) (1998) FLC 92-824 In the marriage of S (1980) FLC 90-820 In the marriage or Teves and Campomayor (1995) FLC 92-578 In the marriage of Deniz (1977) FLC 90-252 In the marriage of Otway (1987) FLC 91-807 Osman and Mourrali (1990) FLC 92-111 In the marriage of Hosking (1995) FLC 92-579 K and S [2003] FamCA 136 K and A [2006] FamCA 305 A v B [2006] FamCA 161 C v C [1942] NZLR 356 T and H [2001] FamCA 785 M and Y [2005] FamCA 149 Aird & Hamilton-Reid [2007] FamCA 4 |
| APPLICANT: | MS ZACHARIA |
| RESPONDENT: | MS PARADISIO |
| FILE NUMBER: | ADC | 2235 | of | 2008 |
| DATE DELIVERED: | 1 AUGUST 2008 (In Chambers) |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | BURR J |
| HEARING DATE: | 24 JULY 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Not relevant |
| SOLICITOR FOR THE APPLICANT: | Applicant in person |
| COUNSEL FOR THE RESPONDENT: | No appearance |
| SOLICITOR FOR THE RESPONDENT: | No appearance |
Orders
That the wife’s Application for a declaration of nullity of marriage filed on 6 June 2008 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Zacharia & Paradisio is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 2235 of 2008
| MS ZACHARIA |
Applicant
And
| MR PARADISIO |
Respondent
REASONS FOR JUDGMENT
Introduction
I have before me for determination an Application for declaration of nullity of a marriage under the Family Law Act 1975 (Cth) (“the Act”).
On 6 June 2008 the wife, Ms Zacharia, filed an Application pursuant to the Act that the marriage between herself and the husband Mr Paradisio on … January 2008 be declared null and void.
The husband was served with the wife’s Application and accompanying affidavit on 14 June 2008. He has not filed anything by way of Response nor was he present at the hearing on 24 July 2008. I have determined that I will proceed with the wife’s Application in the husband’s absence.
At the hearing on 24 July 2008 the wife was unrepresented and gave oral evidence in support of her application.
Background
The wife was born in August 1962 and is hence now aged nearly 46 years. The husband was born in December 1959 and is now aged 48 years.
The wife is employed as a scientist and has two daughters from a previous relationship, aged 17 and 22 years.
The husband is unemployed. The husband has previously been married and has four children from that relationship. The two younger children, aged 8 and 9 years, spend time with the husband every second weekend and one day during the week.
The wife and husband met over the internet in or about January 2007. The wife states that at this time she was suffering from depression and was lonely. The parties met physically in March 2007 and began to meet occasionally as friends.
The wife states that the husband informed her that he was impotent and that this was the reason why he could not find a girlfriend.
In or about May 2007, the husband informed the wife that he was dying from terminal cancer. The husband also said that he was on Sickness Benefit and due to the medications he was taking, he did not have much money to look after the younger two children.
The wife states that she felt sorry for the husband and the children and began to purchase items for the children, including clothing, footwear and bedding. She also assisted the husband with household expenses, food bills and medication expenses.
The wife states that in July 2007 there was a noticeable change in the husband’s demeanour and that he became very moody and verbally abusive. The wife states that initially she attributed this to a side-effect from the cancer treatment but eventually she became sick of his behaviour and sought to end the friendship.
Approximately one week after the wife decided to end the friendship, the wife was informed by the husband’s mother that the husband had been admitted to hospital and that he was asking for her. The husband was in hospital for food poisoning. The wife visited the husband in hospital. The wife stated that she attempted to look at the husband’s chart but was not permitted to do so by hospital staff. She also asked a doctor how the husband’s cancer was progressing but she states that the doctor did not answer her question and walked away. The wife states that she was again subjected to verbal abuse by the husband.
The wife states that a couple of days after her visit to the hospital, the husband’s mother contacted her and asked to speak with her. The wife invited the husband’s mother to visit her. The husband accompanied his mother and apologised to the wife for his conduct, blaming the medications. The husband proposed to the wife, his mother telling her that the husband’s two younger children needed someone to look after them. The husband and his mother told the wife that the mother of the children was a drug user but as the husband was dying, he could not get “custody” for the children to live with him. They told the wife that if the husband were to marry he could gain full “custody”. The wife states that she accepted the husband’s proposal on the basis that he did not have much longer to live and that she would be providing his two younger children some stability in their lives.
The parties married in January 2008. On the night of the wedding, the husband began to verbally abuse the wife, his children and the wedding guests. The husband announced that he was not dying of cancer but had Hepatitis C and that he had been in prison for possession and trafficking drugs.
The wife states that she told the husband to leave and that she has not seen him since the day after the wedding January 2008.
The wife states that she believes the husband deceived her in order to have the wife financially support him and his children.
The wife therefore brings her application on the basis that the husband lied to her and that the marriage was based on fraud.
The law
A decree of nullity can be made on the ground that the marriage is void: s 51 Family Law Act 1975 (Cth) (C v C (Nullity) (1998) FLC 92-824.
Section 23B of the Marriage Act 1961 (Cth) sets out the grounds upon which a marriage is 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.
While the wife did not frame her Application by reference to these provisions, the potential grounds for her Application are (1)(c) (the validity of the marriage), 1(d)(i) (that consent was not real consent on the basis of fraud) and 1(d)(ii) (that consent was not real consent on the basis of mistaken identity).
Validity of marriage
A marriage is invalid where it is solemnised otherwise than in accordance with Division 2 of the Marriage Act 1961 (Cth) (s 48 Marriage Act).
There is no information provided and no issues are raised in the wife’s affidavit about the form of the marriage ceremony and therefore the ground set out in s 23B(1)(c) is not available to the wife.
Duress or fraud
Duress requires the consent of one party to have been obtained by force or threat of force. It is not sufficient for the strong will of one to have imposed on the will of a weak or impressionable character. Thus duress is not relevant to the current application.
The leading case concerning the basis upon which Australian Courts will make a decree of nullity on account of duress is In the Marriage of S (1980) FLC 90-820.
In that decision, Watson J defined “duress” to mean “oppression”. His Honour stated (at 75,179):
“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 however the oppression arises and irrespective of the motivation or propriety of any person solely or partially responsible for the oppression.”
The facts of the case were that a 16 year old girl had gone through with an arranged marriage in Australia. She was born in Egypt, coming to Australia with her family at the age of 8. Her marriage was arranged in accordance with Egyptian Coptic traditions. Her evidence was that she had only gone through with the marriage because her parents had insisted and she could not stand up to them.
It was held that she had not given real consent to the marriage as she had been “caught in a psychological prison of family loyalty, parental concern, sibling responsibility, religious commitment and a culture that demanded filial obedience”.
This decision was followed by Lindenmayer J in In the Marriage of Teves and Campomayor (1995) FLC 92-578. His Honour said (at 81,737):
“[I]t 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.”
Lindenmayer J also emphasised that it is duress at the time of the marriage ceremony itself that is relevant to the law of nullity, and not duress at some earlier time, unless the effect of the earlier duress continues to overbear the will of a party to the marriage ceremony at the time of the ceremony itself.
Fraud has to be such that there was no consent to the marriage.
In the marriage of Deniz (1977) FLC 90-252 it was held that fraud must be one that goes to the “root of the marriage contract”. However, subsequent cases seem to have preferred the approach in In the marriage of Otway (see below) to that in Deniz.
A fraudulent misrepresentation is not enough. In the marriage of Otway (1987) FLC 91-807 at 76,087:
“In my view, whatever the meaning of ‘fraud’ may be, it has so far not been extended in English law to include fraudulent representations or marriages where one party has a mental reservations concerning the future of the marriage even where such reservations are unknown to the other party. Nor, in the light of the history of the interpretation of the concept in the past, do I believe that there is sufficient statutory warrant to depart from this established interpretation. In my view the provisions of the Marriage Act were doing little more than putting into statutory form the law as it was then understood, and did not intend to liberalise or expand the meaning of ``fraud''. At best the separation of fraud from mistake and the qualifications attached to mistake in the subparagraph only clarified the fact that an innocent as well as fraudulent mistake could result in the relevant lack of consent to the marriage.”
Since the insertion of s23B(1)(d) into the Marriage Act, “fraud” has been considered at length in two cases: Osman and Mourrali (1990) FLC 92-111 and In the Marriage of Hosking (1995) FLC 92-579.
In Osman and Mourrali (1990) FLC 92-111 Nygh J. determined an application for nullity in which one party allegedly obtained the other party’s consent in order to qualify as a permanent resident of Australia. In dismissing the application his Honour said at 77,743:-
“The question then arises as to what the fraud should relate to. The language of the section is derived from that found originally in sec. 18(1)(d) of the Matrimonial Causes Act 1959. That, it has been frequently acknowledged, was not a statute which sought to change in a fundamental way the basis of matrimonial law in this country, as did the Family Law Act 1975. Rather, it sought to provide a uniform law at a federal level.
…
That is further supported by the use of the words which are clearly derived from those used by Sir Francis Jeune P. in Moss v. Moss (1897) P. 263, rightly or wrongly regarded as being of great authority in 1961. At pp. 268-269 his Lordship 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 a 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 fraud has been held to be the 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.’
See also C v. C (1942) N.Z.L.R. 356.
That passage has generally been interpreted as meaning that the marriage is void because the purported consent was given to something other than a marriage, or to a marriage with someone other than the person physically standing at the altar. But if a person wishes to go through a ceremony of marriage with a person whose identity he or she is aware of, then it matters not that that consent is induced by promises of eternal happiness, luxurious living or even the promise to live together for ever after. For, if it were a ground that a marriage could be annulled on the ground that a party was defrauded as to the intention to cohabit, where should the court draw the line? Love and affection are also regarded as essential to a marriage at least in the twentieth century: would lack of love base an application for annulment? Again, the production of offspring is a traditional concern of marriage, would a deception as to the intention to bear them or procreate them found an application? Where does one draw the line between attributes such as wealth, virtue, beauty or potency on the one hand and the fundamentals of marriage such as cohabitation, mutual love and support and the procreation of children of the parties?
This conclusion is supported by the long-standing attitude of English, and by inheritance, Australian law whereby a marriage is valid even though neither of the parties intended to cohabit. This is a peculiarity of the English law which 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 Englishmen from the monarch down-wards would have been liable to have their marriages annulled if an intention to cohabit had been of the essence! If cohabitation is not of the essence where neither party desires it, how can it then become of the essence if only one party seeks it?”
In the marriage of Hosking (1995) FLC 92-579 Lindenmayer J concluded:
“… I conclude that the term ‘fraud’, as it appears in s. 23B(1)(d)(i) of the Marriage Act, has a fairly limited scope. Its concern is with fraud as to the identity of the other party or as to the nature of the ceremony, and not as to the motives of a party in entering into the marriage. Should a Court ever be entitled to say that a party's reasons for marriage are so improper that it will declare their marriage void? The answer in my view must be a resounding no.
Neither his Application, nor any of the material in his affidavit, however, is directed at the question of whether there was fraud as to the identity of the other party or the ceremony itself. Indeed, the husband’s material says very little about the actual marriage ceremony, or the circumstances of it. Accordingly, his application must fail.”
The following cases are recent cases which have considered the issue of the ground of fraud as a basis for nullity of a marriage.
In K and S [2003] FamCA 136 the Full Court (Ellis, Finn and Mushin JJ) considered an appeal from a trial judge’s decision to dismiss the joint application for nullity on the basis of consent having been obtained by fraud. The wife married the husband in order to take his name for her financial advantage. The trial judge dismissed the application on the basis that the application did not fall within any of the grounds of nullity. The Full Court cited the above extracts from Osman and Mourrali and In the Marriage of Hosking, stating that the law on the meaning of “fraud” in this context was not entirely clear. However, the Full Court upheld the trial judge’s decision that the necessary ground was not established by the parties.
In K and A [2006] FamCA 305 (unreported), the husband applied to have the marriage declared void on the basis that consent was obtained by fraud or duress or there was a mistake of identity. The wife had been sentenced to a period of imprisonment of 7 years for defrauding the Commonwealth and there was doubt as to her real name. The husband could establish that the wife had misled him as to her qualifications, attributes and financial position.
The husband stated that the wife married him only for financial benefit. Barry J had no hesitation in accepting the husband’s assertions but stated that they did not constitute a ground of nullity. Barry J stated at para 10:
“10.Parties marry for all sorts of reasons. It is not for the Court to go behind those reasons. The fact is there was no mistake as to the identity of this particular woman; she was the same person in flesh and blood; there had been a meeting, a period of courtship, a period of relationship and a two year period of marriage that followed. The fact that she lied and cheated and was deceitful may be reprehensible conduct but it is not such as to nullify the validity of the ceremony that was performed. There was no mistake as to the nature of the ceremony, there was no mistake as to the identity of the party. The fact that a person misrepresented and lied is not sufficient, it has to go far further than that to raise proper grounds for a decree of nullity.” (emphasis added)
In A v B [2006] FamCA 161, the husband applied for nullity of the marriage on the grounds (inter alia) that the wife fraudulently entered into marriage in order to obtain a visa. Mushin J stated (at para 15):
“The nature of the fraud must go to the party, him or herself, and the nature of the ceremony, rather than the individual motives which a person may have for marrying. Accordingly, in my view the husband is unable to make out a ground of nullity and his application must therefore be dismissed.”
It follows therefore that the wife’s Application cannot succeed on this ground enumerated in s 23B(1)(d)(i).
Mistake as to identity of other party
The mistake has to be about “who the other party really is” - it is not enough for a party to be mistaken about matters such as the other person’s financial position or character. “The mistake in question must go to the identity of the party, not merely their name.”
Dickey comments:
“…it does appear that a distinction must be drawn between a mistake as to the human identity of a person, and a mistake as to the name, status or other attribute of a party. The better view, based on the ordinary law of contract, seems to be that only the former type of mistake justifies a decree of nullity.”
In C v C [1942] NZLR 356, the husband told the wife he was a famous Australian featherweight boxer and quite well off. The husband was in fact a New Zealander and neither a boxer nor rich. The wife tried to have the marriage annulled, but failed. Callan J held that it was a “case of real consent induced by fraud, and not a case of no consent or absence of consent.” The woman had consented to marrying the man she in fact married.
There are few reported cases on mistaken identity as a ground to establish that a marriage is void and thereby justifying the grant of a decree of nullity. Below is a summary of some more recent cases on the issue:
T and H (2001) (unreported 1/6/07). One ground the husband relied on was mistake as to the identity of the wife, in that she lied about her date of birth, her education, her background, and that she was in effect “a different person”.
Chisholm J stated that “[T]he authorities make it quite clear that mistake as to identity should be construed in a fairly narrow way.” His Honour concluded that even if all the things the husband alleged about the wife were true, this would not constitute a mistake of identity within the meaning of s 23B(1)(d)(ii) of the Marriage Act.
In M and Y (2005) (unreported 10/2/05), the wife sought a decree of nullity on the ground of mistake as to identity of the husband. Halligan JR stated at [28]:
“Identity for these purposes does not refer to one’s incidental attributes such as condition, fortune, or quality, but rather to the person of the other party. For example, if a person intended to marry A but in fact went through a ceremony of marriage with B believing them to be A, consent would be vitiated. The authorities and current text books in fact suggest nullity on this ground is very rare…”
The substance of the wife’s complaint was that the husband had not given his correct name, that he goes by various names and did not give her a correct account of his past. Halligan JR held the wife clearly intended to marry the husband- there was real consent and this consent was not vitiated because she now was unsure of the husband’s real name and his antecedents.
In Aird and Hamilton-Reid [2007] FamCA 4, the wife sought a decree of nullity on the grounds of fraud and mistake as to identity. The wife was not aware of the husband’s real surname, or that he had been previously married and had two children.
Watt J could not conclude on the evidence before his Honour that at the time of the marriage the husband’s name was any different to that on the marriage certificate. The wife had not asserted that she was induced into the marriage because of the husband’s surname, or that any mistake relating to that surname caused her to consent to a marriage in circumstances which she would not otherwise have done so.
His Honour concluded the wife could not rely on mistake to establish a decree of nullity. With respect to fraud, his Honour accepted the wife was induced to marry by the misrepresentations made by the husband. However his Honour stated that “[F]rom earliest times the authorities have rejected misrepresentations that induce the giving of consent including age, social status and wealth. These are all objectively ascertainable facts.” (at [50]) The wife consented to marry the person who was physically present on the wedding day.
Thus on the facts presented to the Court, the wife cannot succeed in her Application based on the provisions of s 23B(1)(d)(ii). Despite the husband’s deceptions and appalling behaviour, the wife married the man she thought she was marrying.
Summary
The wife was lied to and misrepresentations were made by the husband as to his character and his reason for marriage. However, the wife consented to marrying the person physically present on the wedding day, and consented to what she knew to be a valid marriage ceremony.
The wife is therefore unable to make out any of the relevant grounds for nullity of her marriage.
I certify that the preceding fifty six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr.
Associate:
Date: 1 August 2008
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