ZAI & YEN

[2020] FamCA 366

FAMILY COURT OF AUSTRALIA

ZAI & YEN [2020] FamCA 366

FAMILY LAW – NULLITY – Where the wife alleges her consent was not consent at all and was the result of fraudulent conduct by the marriage celebrant and the “husband” – Where discussion of applicable principles – Where evidence sufficient to establish that marriage was void – Where application granted.

Family Law Act 1975 (Cth) s 51
Marriage Act 1961 (Cth) s 23B

Marriage of Osman & Mourrali (1990) FLC 92-111

APPLICANT: Ms Zai

RESPONDENT: Mr Yen

FILE NUMBER: PAC 6233 of 2019

DATE DELIVERED: 14 May 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 15 April 2020

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT: Ms Zai

RESPONDENT – SELF-REPRESENTED LITIGANT: No appearance

Orders

1. That the marriage between Ms Zai and Mr Yen solemnized on … December 2018 at Sydney be declared a nullity.

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 Zai & Yen 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 6233 of 2019

Ms Zai

Applicant

And

Mr Yen

Respondent

REASONS FOR JUDGMENT

1. This is an application filed by the wife on 13 December 2019 seeking a declaration of nullity in relation to her marriage to the respondent husband. The marriage was purportedly formalised by a civil celebrant on … December 2018, although the wife contends that no marriage ceremony took place and that it was a fraud.

2. By way of background, the wife and husband, both born in 1991, are now 28 years of age.

3. In around April 2019 police informed the wife that the husband was no longer in the country and it was the wife’s speculation that he had returned to his home country, Country B.

4. On 30 January 2020 an order for substituted service of the application was made facilitating the wife effecting service by forwarding a sealed copy of the application to the husband’s email address. Service was effected in accordance with orders on the same day and an affidavit proving compliance was filed shortly thereafter.

5. No material was filed by the husband in response to the wife’s application, and despite being notified by the wife by email of the hearing date on 15 April 2020, there was no appearance by or on behalf of the husband on that day.

6. In these circumstances, the Court was satisfied that it was appropriate for the matter to proceed on an undefended basis.

The Wife’s evidence

1. The wife relies upon her affidavits filed 13 December 2019 and 11 March 2020 in support of her application. 

2. It is unclear when the parties’ commenced their relationship but it appears they began living together in early 2016.

3. During the course of their relationship the wife asserts that the husband was abusive towards her which ultimately led to their separation in September 2018.

4. Three months after separation, at which time the wife had already re-partnered, the wife deposes to an incident of domestic violence perpetrated by the husband. She claims that the husband attended her residence and engaged in intimidating and aggressive behaviour towards her, including that he demanded she leave her current partner in order to be with him once again and threatened he would harm her family back in Country B if she did not comply with some other requests.

5. In fear, the wife contacted the police who attended the home and later interviewed the parties as to the events that transpired. On 3 December 2018 police issued a provisional Apprehended Domestic Violence Order (“ADVO”) against the husband for the protection of the wife and charged the husband for his conduct.

6. Despite the ADVO in place, the husband contacted the wife on 6 December 2018 via text message requesting that she sign a ‘Notice of Intended Marriage’ form (“the Notice”). According to the wife, the husband sought legal advice about his domestic violence charges and was informed that signing the Notice “would look favourable in Court” if he were to be sentenced. The husband then threatened her with words to the effect of “if you don’t help me and do nothing, when I come out I won’t give up and both families will suffer”. He asserted that if she complied with his request he would “not annoy [her] in the future”.

7. The wife was scared of the husband and wishing that he would cease contacting her she agreed to sign the Notice but not any other forms relating to a marriage application. It was her understanding that there was a cooling off period of 30 days between signing a Notice and any formal marriage ceremony and that, in any event, it was unlikely that a marriage could proceed without other marriage forms being completed.

8. On … December 2018 the wife met with the husband and together the parties attended upon a marriage celebrant at whose office the wife signed the Notice. Before signing, the wife clarified with the marriage celebrant that she only attended for the purposes of signing the Notice and not the marriage itself. The marriage celebrant reassured the wife of the 30-day cooling off period and that the document the wife had signed was “only an intention [to marry] and not as to marriage and will not be registered”.

9. The wife signed the Notice but at the request of the marriage celebrant did not date the document. No other document was signed by the wife on that day.

10. On 18 December 2018 upon attending the Births, Deaths and Marriages registry the wife, who had concerns, learnt that she was registered as “married on … December 2018”.

11. The wife asked the marriage celebrant “how could [you] issue or register a marriage certificate without my consent and without a marriage ceremony?”  The marriage celebrant replied “[the husband] said that he didn’t need the ceremony… I will try to fix it”.

12. A few days later, the marriage celebrant told the wife “sorry, there is nothing I can do”.

13. On 23 December 2018 the wife lodged a complaint against the marriage celebrant to the Marriage Law and Celebrants Section of the Attorney General’s Department. The wife’s complaint was initially referred to the Australian Federal Police but was subsequently rejected due to case priority. In around April 2019 the complaint was then referred to New South Wales Police (“NSW Police”) as a “Fraud Report”.

14. According to police records, copies of the Notice, the ‘Certificate of Marriage’ and the ‘Declaration of No Legal Impediments’, being the documents required for the registration of marriage, were requested by police from the relevant registry. After perusing these documents, the wife confirmed that she did not sign the latter two documents and highlighted that the signatures on them were in print rather than her usual cursive. She also told police that she did not recognise the names and signatures of the witnesses on these documents and on the Notice she had signed, she noticed that the document had been dated “6/11/2018”.

15. On several occasions in early 2019 the marriage celebrant participated in interviews with NSW Police, and following further investigations by the Attorney General’s Department, was ultimately deregistered as a marriage celebrant effective from March 2020.

16. The determination of the complaint against the marriage celebrant in the form of a letter addressed to the wife from the Attorney General’s Department is annexed to the wife’s affidavit filed 11 March 2020.  

The Law

1. The wife’s application before the Court for a declaration of nullity is made pursuant to s 51 of the Family Law Act 1975 (Cth), 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.

2. 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.

3. The wife submits that the marriage is void under s 23B(1)(d)(i) insofar as both the husband and the marriage celebrant purported, through fraudulent means, to assert that the wife had given her consent to the marriage.

4. Justice Nygh in the Marriage of Osman & Mourrali (1990) FLC 92-111 considered the meaning of fraud in relation to marriage and said:

   The question then arises as to what the fraud should relate to. The language of the section is derived from that found originally in section 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. With great respect to Frederico J, it cannot be assumed that the parliament intended in1959 to change the then existing common law.

   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 pages 268-9 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 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. 

   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…

5. It is clear from the evidence that the wife merely consented to signing the Notice of Intended Marriage form and not to the marriage itself being formalised.

6. The wife herself did not sign the other legal documents required for the marriage to be registered, and a Commonwealth Statutory Declaration to this effect was provided by the wife in the course of the investigations into her complaint against the marriage celebrant who had registered the marriage between the parties.

7. Police records of the investigation conducted in relation to the marriage celebrant noted that:

   … [the marriage celebrant] ha[d] backdated or forged marriage documents and lodged them with Births, Deaths and Marriages that has resulted in the unlawful registration of the marriage of [the wife] and [the husband]. Investigators have identified Commonwealth offences under the Marriage Act 1961 and Fraud offences under the Crimes Act 1900 and an investigation plan is being established with a view to arrest, interview and consider charges against [named marriage celebrant].

8. In the determination of the complaint lodged by the wife against the marriage celebrant, the Attorney General’s Department stated in finding that it was appropriate to deregister the marriage celebrant, that the marriage celebrant had inter alia:

   i)solemnised a marriage without meeting the Notice of Intended Marriage and Declaration of No Legal Impediments requirements in section 42, in contravention of section 99 of the Act; and

   ii)solemnised a marriage knowing there is a legal impediment in contravention of section 100 of the Act.

   …

9. The reasons given by the relevant Registrar of Marriage Celebrants of the Attorney General’s Department in support of that determination are summarised as follows:

   [6]I am satisfied on the evidence before me, that [the wife] only signed the Notice of Intended Marriage but no other marriage documents and [the marriage celebrant] purported to solemnise and register a marriage based on fraudulent marriage documentation and without the attendance of a party to the marriage.

   [7]… [The marriage celebrant] admitted to “signing official marriage documents as the celebrant and witness to signatures that she did not witness” and “backdating the document”. [The marriage celebrant] witnessed the Declaration and marriage certificates without [the wife] being present…

   …

   [14]… It is not the role of a celebrant to ascertain the genuineness of the parties’ relationship. It is the role of the celebrant to ensure that the consent given, is real consent. It is not possible for a person [the wife] to provide consent to a marriage when they are not present at the marriage ceremony.

   [15]Despite the absence of [the wife] [the marriage celebrant] purportedly solemnised the marriage and proceeded to register the marriage with NSW BDM.

   [17]…[A] marriage celebrant must maintain a high standard of service in their professional conduct and practice. This includes ensuring accuracy in the preparation of documents and in the conduct of marriage ceremonies…it is the responsibility of the marriage celebrant to ensure the legal requirements have been met… a marriage celebrant must not knowingly accept documents that contain inaccurate, false or misleading statements… I do not accept that [the marriage celebrant]’s actions were not deliberate.

10. It is readily apparent that the wife did not consent to the marriage.

11. Not only was the wife absent at the purported marriage ceremony, but the transactions that took place in organising the marriage such as signing relevant documentation were fraudulently represented by the husband and the marriage celebrant as being voluntarily undertaken by the wife. So far as the wife is concerned, she only agreed to sign a preliminary document in the marriage application process.  Her purported consent to the marriage was fraudulent.

12. For the foregoing reasons, the Court is satisfied that the marriage is void.

13. The marriage will be declared a nullity and orders will be made accordingly.

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 14 May 2020.

Associate: 

Date:  14 May 2020