# Ryba & Achthoven (2024, FedCFamC1F)

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
Ryba & Achthoven [2024] FedCFamC1F 674 :
| File number | MLC 5946 of 2024 |
| Judgment of | WILSON J |
| Date of judgment | 17 October 2024 |
| Catchwords | FAMILY LAW – NULLITY – application for decree of nullity sought by the applicant – marriage contrary to s 23B of the Marriage Act – the wife asserts she was mistaken as to the nature of the ceremony – the respondent asserts it was a valid marriage – decree of nullity ordered. |
| Legislation | Family Law Act 1975 s 51 Marriage Act 1961 ss 23, 23B, 45 |
| Cases cited | AK v NC (2003) 32 Fam LR 16 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Alford & Lyden [2021] FamCA 38 Azmi & Shinde [2014] FamCA 824 Bown & Jalloh [2014] FamCA 785 Breust & Devine [2016] FamCA 892 Carroll & Sinclair [2011] FamCA 651 Catesby & Dhillon [2021] FedCFamC1F 124 Chirag & Karelka [2018] FamCA 476 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1951) 147 CLR 297 Damus & Anders [2024] FedCFamC1F 419 Fatisi & Hasila [2020] FamCA 209 Fern & Fern (No 2) [2021] FamCA 643 Gaffney & Sorenson [2023] FedCFamC1F 327 Galea v Galea (1990) 19 NSWLR 263 Garner & Lee [2011] FamCA 1000 GLJ v The Trustees of the Roman Catholic Church of the Diocese of Lismore (2023) 97 ALJR 857 Hill & Spiteri [2016] FamCA 1136 In the Marriage of Hosking (1994) 18 Fam LR 581 In the Marriage of Najjarin & Houlayce (1991) 14 Fam LR 889 ​ In the Marriage of Osman & Mourrali (1989) 13 Fam LR 444 K & S Lake Freighters Pty Ltd v Gordon & Gotch Pty Ltd (1985) 157 CLR 309 Kelly v Kelly [1932] 49 TLR 99 Kevric & Nilsson [2024] FedCFamC1F 484 Kemal & Kemal [2017] FamCA 915 Khwaja v Sinha (2011) 46 Fam LR 309 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 Ngo & Ngo [2010] FamCA 1053 Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619 Oliver & Oliver [2014] FamCA 57 Pannos & Fotinos [2020] FamCA 102 Parsa & Hamidi [2023] FedCFamC1F 8 Pen & Vun [2021] FamCA 294 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Rabab & Rashad [2009] FamCA 69 Radtke & Pagano [2016] FamCA 784 Sarvari & Atapati [2017] FamCA 928 Sikander & Vashti [2018] FamCFC111 Sita & Bedi [2015] FamCA 1105 Taylor v Public Service Board (1976) 137 CLR 208 Valier v Valier (1925) 133 LT 830 Wagstaff v Wagstaff (2022) 65 Fam LR 461 |
| Division | Division 1 First Instance |
| Number of paragraphs | 113 |
| Date of last submission | 10 October 2024 |
| Date of hearing | 4 October 2024 |
| Place | Melbourne |
| Counsel for the applicant | Mr D. Goddard |
| Solicitor for the applicant | GOZ Chambers Lawyers |
| Counsel for the respondent | Mr R. Gray |
| Solicitor for the respondent | BZN Lawyers |
ORDERS
MLC 5946 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
| BETWEEN | MS RYBA Applicant |
| AND | MR ACHTHOVEN Respondent |
| ORDER MADE BY | WILSON J |
| DATE OF ORDER | 17 OCTOBER 2024 |
THE COURT ORDERS THAT –
1. The applicant's application for a decree of nullity dated 21 May 2024 in respect of her December 2023 marriage is granted.
2. The applicant must file and serve any affidavit and submissions in support of her costs application by 4.00pm on 14 November 2024.
3. The respondent must file and serve any affidavit and submissions in opposition to the applicant’s application for costs by 4.00pm on 28 November 2024.
4. The question of costs will be determined thereafter on the papers.
Note: The form of the order is subject to the entry in the Court's records.
Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Ryba & Achthoven has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
1 By initiating application filed 21 May 2024, the applicant applied for orders under the provisions of the Marriage Act declaring her purported marriage to the respondent a nullity for being contrary to s 23B of the Marriage Act.
2 Specifically, the applicant contended that her putative marriage to the respondent was void by reason of the applicant's consent not being real consent in the manner provided for in s 23B(1)(d).
3 The respondent disputed that the marriage ceremony was other than regular. He said a valid and subsisting marriage resulted. He sought orders dismissing the applicant's application for a declaration of nullity.
4 The impugned marriage ceremony was conducted in December 2023. A marriage certificate was generated in relation to the marriage. By force of s 45(3) of the Marriage Act, the marriage certificate provides conclusive evidence that the formalities of marriage had been complied with.
5 Each of the applicant and respondent is of Country D heritage. The applicant is a health professional. The respondent arrived in Australia a few years ago in order to study.
6 The applicant asserts that she believed that when participating in the alleged wedding ceremony conducted in December 2023, she was acting in a video that the respondent was producing as part of his social media activities (on her version of events) the alleged wedding being no more than a mere dramatisation of a hypothetical wedding.
7 The respondent submitted that prior to the alleged wedding ceremony, the applicant freely and unconditionally accepted the respondent's proposal to marry, that a legally authorised wedding celebrant officiated over the wedding ceremony, that it was validly and regularly witnessed, that it was no hoax, that a wedding ring was produced and that a valid wedding certificate was also produced.
8 A factual dispute emerged in respect of the events subsequent to the impugned wedding ceremony about whether the applicant and the respondent actually lived together as a married ​couple. She said they did not. He said they did. The respondent said he is bisexual. The applicant gave evidence she did not know of that prior to the convening of the impugned wedding ceremony.
9 For the reasons that follow, in my judgment the applicant made out the elements of s 23B(1)(d) of the Marriage Act and is therefore entitled to the order she seeks declaring her marriage to the respondent a nullity.
SOME BACKGROUND ACCORDING TO THE APPLICANT
10 At the date of the trial of this proceeding, the applicant was 24 years of age. She made two affidavits in support of her application for a declaration of nullity in this proceeding, namely, her affidavit made 12 September 2024 and her affidavit made 26 September 2024.
11 According to the information in her affidavit made 12 September 2024, she first communicated with the respondent (it seems electronically – not face-to-face) on a dating platform in September 2023. They met in person at an address in Suburb B, Victoria the next day. The applicant and respondent attended a church in Melbourne in September 2023 after which they dined together at lunch (although she did not say whether alone or in company) thereafter departing for their respective homes. She deposed to regularly communicating with the respondent thereafter.
12 The few events just described did not incorporate any discussion of marriage. For that matter, the few events just described revealed the briefest of exchanges between a man and a woman with very little beyond their Country D heritage in common.
13 She did not depose to her citizenship – whether Country D, Australian or dually Country D and Australian. However she did depose to not knowing by September 2023 that the respondent had applied for a refugee visa and that, so she asserted, the respondent was looking for an Australian resident or permanent resident who could sponsor him to obtain permanent residency in Australia.
14 The applicant deposed to travelling to Queensland in September 2024 to attend an event where she said she and the respondent had agreed to meet. She deposed to meeting the respondent in Queensland, although she gave no other details beyond the respondent accompanying her, the duration of that meeting and in particular, the context of their discussions. She did not depose to whether the relationship at that point was platonic or romantic.
​15 The applicant deposed to spending time with the respondent after the trip to Queensland. She said he told her he wanted to take her to visit Sydney. She said she gladly accepted. She said they travelled to Sydney in December 2023.
16 The applicant alleged she and the respondent travelled to Sydney in order to attend a party she called a "white party". She gave evidence that the respondent told her she needed to bring with her to Sydney a white dress in order to attend the white party. She said the respondent refused to give details to her of the white party he said they were to attend.
17 She did not depose to how they travelled to Sydney (I assume by air although that was not stated) nor the accommodation arrangements while in Sydney. She needed to change clothes because she deposed to dressing up for the white party. She said that she was shocked (her word) to find out when arriving at "the venue" (wherever that was) because she found out for the first time that the respondent had "organised a wedding for us" (her words).
18 She gave very little evidence to set in context her assertions of the wedding she described. From other evidence in the trial of this proceeding depicting a video recording of the impugned wedding, it was evident that the alleged wedding was held outdoors, the applicant was wearing a white dress (she emphasised in her cross-examination that it was not a wedding dress) and the respondent wore a dinner suit and sunglasses. The significance of their dress was equivocal in the circumstances. In my view it provided no evidence in support of the respondent's opposition to the application in this proceeding.
19 The applicant did not give evidence in her affidavit about the time of day the impugned ceremony took place. However, she did say that she was unaware that the respondent had previously arranged a man whose name was Mr C to be the civil celebrant at the event.
20 Mr C did not give evidence in this proceeding.
21 The applicant gave evidence that after the respondent told her to dress for the white party, while at the venue, she was shocked to find out that the respondent had organised a wedding for the applicant and him. She said she became very uncomfortable and that she told the respondent she was leaving the place immediately. She did not leave. Instead she deposed to telephoning a friend asking about aspects of a notice of intention to marry.
22 Pausing at the juncture, on the version of the evidence just narrated the applicant said nothing on a variety of important issues. Those included – ​
    (a) she and the respondent discussing in broad terms the concept of them marrying one another and if so when;
    (b) whether the respondent had proposed to her asking for her hand in marriage;
    (c) whether her family and the respondent's family had met and what the attitude generally of those families to the marriage between the applicant and the respondent was;
    (d) whether the applicant had discussed the further details of the process of marriage with a cleric or civil celebrant;
    (e) whether the applicant and respondent had discussed obtaining an engagement ring or other external manifestation of their intended nuptials;
    (f) who might be witnesses at the marriage ceremony; and
    (g) where they would live once married.
23 The affidavit of the applicant made 12 September 2024 was wholly silent on those issues.
24 In answers to questions put to him in cross-examination by Mr Goddard of counsel for the applicant, the respondent gave evidence that in the month of September 2023 he told the applicant he was bisexual. The applicant gave no such evidence whether as to the date of that alleged conversation, its context or at all.
25 By the same token, in her 12 September 2024 affidavit the applicant said nothing about the respondent's proposal of marriage to her which she accepted in September 2023. She said she wanted to get married to the respondent. However, she said that in accordance with her culture any marriage needed her parents to be present or their permission was required before a marriage could take place which may have taken a couple of months. She said she told the respondent those things at the time. She disputed that she discussed getting married to the respondent several times prior to late December 2023. She denied holding herself out to people around her, friends especially, that a relationship existed between her and the respondent that was intended for marriage.
​26 When giving their evidence either viva voce or by affidavit, the applicant and the respondent were duty bound to comply with the stipulations in Kuhl v Zurich Financial Services Australia Ltd where the High Court held that a witness must tell the truth, the whole truth and nothing but the truth. Omitting from her evidence-in-chief a matter as significant as the applicant's contention that she accepted the respondent's proposal of marriage and thereby became engaged to him was serious, in my view. It required me to very carefully examine what each said, and in considerable detail. It must not be overlooked that I am not required to accept evidence, even uncontroverted evidence, if that evidence is contrary to the way events are likely to have occurred.
27 Returning to the applicant's recital of events from her 12 September 2024 affidavit, she deposed to telling the respondent she was leaving upon being shocked at finding out the respondent had organised a wedding for them at which time she deposed to the respondent telling her "it was a simple prank" (her words). Once she had telephoned a friend and was told she could not get married without filing a notice of intention to marry, she proceeded with the process "in the belief that it was just a prank" (her words).
28 The word "prank" means different things in common parlance but I took the applicant to convey by the use of that word a hoax or a comic event intended to have no legal significance.
29 The applicant deposed to the marriage ceremony itself by stating that the celebrant asked her no questions before commencing, thereby satisfying her in the view that the event was a prank.
30 From the video of the alleged ceremony the parties agreed to produce, and did produce, a transcript of the words used during the ceremony. That became an agreed document. It is utile at this juncture to set out to the agreed transcript of the words used (with errors in the original) –
   MC: whatever life you may hold so you can genuinely share your life together
   [MSR]: Yes I do
   Mc: do you take [Ms Ryba] to be your wife? Would you love her and respect her? Be honest with her and stand by her through whatever life may hold? So you can genuinely share your life together?
   ​[MRA]: yes I do.
   MC: now the legal vows. Now [Mr Achthoven] please repeat after me, I call upon the persons you present.
   [MRA]: I call upon the persons here present.
   MC: to Witness that I.
   [MRA]: to witness that I.
   MC: [Mr Achthoven], you can say your name.
   [MRA]: I [Mr Achthoven]
   MC: take you [Ms Ryba].
   [MRA]: take you [Ms Ryba].
   MC: to be my legally wedded wife.
   [MRA]: to be my legally wedded wife.
   MC: as my friend and love.
   [MRA]: as my friend and love.
   MC: in laughter and in tears.
   [MRA]: in laughter and in tears.
   MC: asking that you be no other than yourself.
   [MRA]: asking that you be no other than yourself.
   MC: I promise to love you.
   [MRA]: I promise to love you.
   MC: to respect you.
   [MRA]: to respect you.
   MC: to support you.
   [MRA]: to support you.
   MC: to work together with you
   [MRA]: to work together with you.
   MC: to achieve our goals.
   [MRA]: to achieve our goals.
   MC: and to plan our future together.
   [MRA]: to plan our future together
   MC: it is your turn, now please repeat after me.
   [MSR]: I call upon the persons here present.
   Mc: to witness that I.
   ​[MSR]: to witness that I
   Mc: [Ms Ryba]
   [MSR]: [Ms Ryba]
   MC: thank you, take you [Mr Achthoven]
   [MSR]: take you [Mr Achthoven].
   MC: to be my legally wedded Husband.
   [MSR]: to be my legally wedded Husband.
   MC: as my friend and love.
   [MSR]: as my friend and love.
   MC: in laughter and in tears.
   [MSR]: in laughter and in tears.
   MC: asking that you be no other than yourself.
   [MSR]: asking that you be no other than yourself.
   MC: I promise to love you.
   [MSR]: I promise to love you.
   MC: to respect you.
   [MSR]: to respect you.
   MC: to support you.
   [MSR]: to support you
   MC: to work together with you.
   [MSR]: to work together with you.
   MC: to achieve our goals.
   [MSR]: to achieve our goals.
   MC: and to plan our future together.
   [MSR]: to plan our future together.
   MC: [Ms Ryba]and [Mr Achthoven] you will begin your journey bound by the vows that you have just promised to each other. You keep these vows sacred. May all your days in the future be filled with happiness
   [MRA]: thank you
   MC: now we come to the exchange for the release of the graphic rings, let us go Gonna take to bring it to giving to [Ms Ryba]. Please now exchange you rings in recognition of your commitment to one another. [Mr Achthoven] as you place the ring on [Ms Ryba's] finger, please repeat after me, this ring a gift for you.
   [MRA]: this ring a gift to you
   ​MC: symbolises my never ending love
   [MRA]: symbolises my ev.. never ending love
   MC: and loyalty for you.
   [MRA]: and loyalty for you.
   MC: [Ms Ryba] please repeat after me, this ring a gift for you
   [MSR]: this ring a gift to you.
   MC: symbolises my never ending love.
   [MSR]: symbolises my never ending love.
   MC: and loyalty to you.
   [MSR]: loyalty to you MC: beautiful, [Ms Ryba] and [Mr Achthoven]you have declared before me and before these witnesses that you will live together in marriage you have symbolised it by joining of hands, the taking of the legal vows and the exchange of the rings. These statements made of love and trust, which we have heard, that is now my greatest pleasure to pronounce you as husband and wife. You may kiss your bride do not fall over, ha ha.Congratulations, you’re now married
   [Ms Ryba]: thank you so much.
   MC: congratulations.
   [MSR]: thank you.
   MC: Okay .
31 The wording used by the celebrant accorded with language ordinarily encountered in a wedding ceremony. Nothing in the words used by the applicant revealed hesitation or uncertainty about the activity in which she was engaged. To the contrary – the words she used and the manner of their expression indicated volition and willingness and did not tell of hesitancy or confusion. That said, on the applicant's version of events she was participating in a prank or hoax. She said believed she was acting. She said she believed she was portraying a bride at a wedding ceremony to enable the respondent to use the video in his work as a social media influencer. It was consistent with such a belief that she convincingly portrayed a willing bride who enthusiastically embraced the wedding ceremony. To do otherwise was antithetical to the task she believed the respondent wanted her to perform.
32 Returning to the chronological sequence of events, the alleged ceremony was witnessed by a photographer. He did not give evidence.
33 The applicant did not depose to the circumstances of the purchase of the wedding ring prior to the impugned ceremony.
34 She did not depose to events after the conclusion of the impugned ceremony.
​35 The impugned wedding was allegedly held in late December 2023 and the applicant deposed to returning to Melbourne three days later. She gave no evidence of events during this period. Importantly, she did not say where she lived nor with whom she lived with in that period. If she lived separately from the respondent she did not depose to conversations with the respondent about their living arrangements at the time.
36 Instead, the applicant moved from the events in late December 2023 to events on an unidentified date after she and the respondent returned to Melbourne. She said that during that time the respondent "pleaded" (her word) that she should add his name to her application for permanent residency. She gave no evidence about the respondent's residency status and why, on her version of events, he needed her to add his name to her residency application. The answer emerged from questions put to the respondent in cross-examination. The exchange unfolded in the following manner –
   MR GODDARD: So you came to Australia in 2018?---Yes.
   And you came on a – well, what were the circumstances of your arrival?---I was a student
   Student?---Yes.
   Okay. And you since arriving have sought a protection visa?---Yes.
   Yes. And you have not – is that on the basis of a refugee status?---So it's a humanitarian visa and I'm – and I'm on the bridging visa A.
   Okay. So since arriving in 2018 as a student, when did you make the application for a humanitarian visa?---That was in 2022?
   2020 or 2022?---2022.
   2022. Okay. So for the last couple of years you have been on a bridging visa awaiting a determination as to the protection visa; is that correct?---Yes.
   Okay. And you're hoping to become a permanent resident and a citizen of Australia eventually?---Yes.
   Okay.
   HIS HONOUR: Sorry, just before you leave that, what's the basis of your application for protection? You have a well-founded fear of persecution if you return to [Country D]; is that it?---Yes.
   What in particular?---Because – so there were a lot of circumstances that surrounded my living in [Country D], and I filed an application because through my – throughout my period of studies I was traumatised. I had some issues. I had a psychologist.
   Based on what?--- Okay. So my sexual orientation.
   What's that? Sexual orientation.
   What do you mean by that?---Yes, I'm – I'm bisexual.
​37 The respondent gave evidence that he told the applicant of his bisexuality about three weeks after he and the applicant commenced their relationship in September 2023 and that the applicant "was cool with it" (his words). He said he was not aware the applicant was at the same time applying for her own permanent residency status. He said he was aware that every eligible profession gets preferential treatment in respect of applications for permanent residency status. However, he said he disagreed that he was aware that if the applicant was granted a visa for permanent residency then her spouse or partner could apply for permanent residency as well.
38 Returning to the applicant's affidavit made 12 September 2024, at paragraph 17 she deposed to discussing with the respondent his request for her to add his name to her application for permanent residency. She said the respondent said he was not a permanent resident and that he had organised the marriage to help him. She said she was furious when finding that out. She said that she had subsequently obtained a copy of a marriage certificate purporting to record her marriage to the respondent. It revealed–:(a) the date of the marriage was late December 2023;
    (b) the place of the ceremony being a venue in New South Wales;
    (c) the groom as the respondent;
    (d) the bride as the applicant;
    (e) the celebrant being Mr C; and
    (f) the date of registration being a few days after the alleged ceremony.
39 The applicant exhibited to her affidavit a handwritten document headed "notice of intended marriage". She deposed to obtaining that document in response to a subpoena she issued directed to the NSW Registrar of Births, Deaths and Marriages in mid-2024. Several matters arose from that document including –
    (a) the author of the document was not identified yet the completion of the document called for detailed knowledge of each of the parties' parents including their places of birth;
    (b) the residential address of the applicant and the respondent was given as E Street, Suburb F (the respondent's address);
    (c) one of the names of the applicant's mother had been deleted and then identically reinserted, the amendment having been initiated by someone;
    (d) the two signatures of the persons allegedly giving notice of the intended marriage (the applicant and the respondent, allegedly) appear immediately above the date "20.11.2023";
    (e) the signature of the respondent on the notice of intended marriage closely corresponds with and is nearly identical to the signature of the respondent on his affidavit made 23 September 2024;
    (f) the signature of the applicant on the notice of intended marriage bears no resemblance to and looks nothing like the applicant's signature on her 12 September 2024 affidavit filed in this proceeding;
    (g) the celebrant Mr C allegedly signed the notice of intended marriage on 20 November 2023;
    (h) the applicant's overseas passport number was allegedly set out on the notice of intended marriage;
    (i) the respondent's overseas passport number was allegedly set out on the notice of intended marriage; and
    (j) Mr C allegedly signed the certificate in late December 2023 after the ceremony.
40 So far as the date 20 November 2023 was concerned, being the date on which the applicant and respondent allegedly signed the notice of intended marriage before the celebrant Mr C, the applicant deposed to –
    (a) not travelling to Sydney on that date; and
    (b) having no contact whatsoever with the celebrant prior to the date of the alleged ceremony.
41 She also deposed to never authorising Mr C to lodge the purported notice of intended marriage with any government body.
42 The applicant filed an affidavit made on 26 September 2024 in which she answered the assertions made by the respondent in his 23 September 2024 affidavit. To better understand ​the assertions of each it is logically more sound to first address the matters to which the respondent deposed.
SOME BACKGROUND ACCORDING TO THE RESPONDENT
43 He did not give an address in his affidavit. He said he was 37 years of age, that he migrated to Australia in 2018 and that he was awaiting residency.
44 He deposed to meeting the applicant in September 2023 on a dating site.
45 He deposed to the applicant moving into his residence within the first week of meeting. That was in October 2023, he asserted. He said he spoke to the applicant's mother, although he did not depose to the detail or contents of that or those conversations. He said the applicant began to send him a list of items he said the applicant wanted him to buy for her prior to marriage. He said he did not agree to the list of items. Yet he did not depose to the contents of any such conversation about marriage, especially when that conversation allegedly took place, who said what to whom, where and when the marriage would take place and who would be present to witness it or such like issues.
46 The respondent deposed to "focusing" (his word) on organising himself and the applicant in Australia and marrying in Australia before an "official ceremony in [Country D]" (his words). He did not elaborate on that assertion by deposing to, for example, who said what to whom and what he meant by an "official ceremony" in Country D.
47 He said "we both agreed to these circumstances" yet he did not depose to what he and the applicant had allegedly agreed. He said that two began planning their wedding. Importantly, he did not depose to the following –
    (a) discussing with the applicant any religious requirements she may have had for the wedding; or
    (b) actually proposing marriage to the applicant, when that occurred, where it occurred, who said what to whom, whether he had informed the close friends of the couple of their engagement, whether the respondent had given the applicant some form of engagement gift such as a ring, whether any members of the family of either had indicated an intention to travel from Country D to witness any such marriage, whether ​a wedding reception was to be held, its costs, how that cost would be met from their existing salaries and where they would live once married.
48 The respondent's assertion that "we both agreed to these circumstances" was so bereft of detail as to be near meaningless. To most people, marriage is one of the most significant events in his or her life and the details associated with the marriage with its long-term consequences are of critical importance.
49 That respondent's superficial assertion that "we both agreed to these circumstances" was so nebulous that it caused me to scrutinise very carefully everything the respondent said in this case for accuracy, verification, corroboration and plausibility.
50 Between paragraphs 5 and 12 of his affidavit the respondent gave three dates. The first was the date on which he and the applicant met (in September 2023), the second was the date he said he and the applicant commenced cohabitation (in October 2023) and the third was in late December 2023 being the date he said he proposed marriage to the applicant.
51 The applicant agreed that in late December 2023 the respondent proposed marriage to her at an entertainment venue and that he gave the applicant a diamond ring that night.
52 The respondent deposed to he and the applicant agreeing that the next day they would marry at what he described as an "intimate ceremony in Sydney".
53 Pausing there, in his affidavit he omitted any explanation of a large number of issues arising from that limited chronology. Those included –
    (a) why it was necessary or desirable for them to participate in a marriage ceremony the very next day after the applicant accepted his proposal of marriage;
    (b) what travel and accommodation arrangements he had made and when those arrangements had been made to enable the two to travel so expeditiously interstate;
    (c) given that the applicant and respondent lived in Melbourne, why it was necessary or desirable for them to marry interstate;
    (d) what arrangements had been made (if any) in relation to a reception after the ceremony;
    (e) whether the applicant's parents had been informed of the intended marriage ceremony and, more importantly, what their reaction was to his proposal in late December 2023 and a marriage the very next day;
    (f) what arrangements had been made and when for a wedding celebrant to be involved;
    (g) who completed the notice of intended marriage document and why the date 20 November 2023 appeared on it;
    (h) whether a maid-of-honour was to be involved and who that was to be;
    (i) whether any discussion took place between the applicant and respondent and if so when about the applicant purchasing a bridal gown;
    (j) who was to pay the wedding celebrant for his services that day; and
    (k) who the witnesses to the ceremony would be and their relationship to the applicant and respondent.
54 As has already been mentioned, in the trial of this proceeding a video of the impugned ceremony was played. The respondent did not depose to any celebrations immediately following the impugned ceremony by which the fact of the marriage between the applicant and the respondent was allegedly celebrated. Instead, the respondent deposed to returning to Melbourne three days after the ceremony. He gave no evidence of the events between the impugned ceremony in late December 2023 and the day they travelled back to Melbourne. He did not depose to even telephoning the applicant's parents on or after the alleged ceremony to announce that he and the applicant were married. He did not depose to informing his own parents either. Instead, he deposed to paying $3,000 for the wedding and $6,900 for a wedding ring. He did not say what costs were associated with the $3,000 expenditure nor did he exhibit a receipt of his alleged purchase of the wedding ring.
55 The respondent asserted that he and the applicant lived together in his home from a date prior to their engagement or marriage. The applicant denied that assertion, maintaining that she kept her residence in Suburb H. The respondent gave no evidence that with a view to saving money he endeavoured to persuade the applicant to terminate her tenancy of her Suburb H residence from October 2023. He did not say that upon the return of the applicant and the respondent to Melbourne in late December 2023 the two lived at his home as husband and wife. He gave next to no information of their married life together from the alleged ceremony in late December 2023 up until February 2024 when, according to the respondent, the applicant discussed annulment of their marriage.
​56 The applicant relied on an affidavit in reply, made in opposition to the respondent's affidavit. The following matters were raised by the applicant in her second affidavit, made by her on 26 September 2024 –
    (a) she denied moving into the respondent's residence with him, saying instead that throughout her relationship with the respondent she maintained her apartment in Suburb H;
    (b) she denied the respondent's assertion that he purchased a motor vehicle for her;
    (c) she paid a $500 deposit and the balance, assisted by the respondent only insofar as he provided the balance which the applicant paid back to him in full;
    (d) she denied consenting to a sham marriage;
    (e) the respondent retook the ring he gave the applicant; and
    (f) she did not travel to Sydney in November 2023 nor did she have any form of contact with the celebrant prior to the alleged ceremony in late December 2023.
MATTERS ARISING FROM THE APPLICANT'S CROSS-EXAMINATION
57 The applicant was cross-examined with vigour but also courtesy. The following were the more important matters that emerged from the answers she gave to the questions put to her in cross-examination –
    (a) she disputed that the respondent gave her a car as a gift in 2024 and gave evidence that she purchased the vehicle in early 2024 by paying a deposit of $500;
    (b) she and the respondent did not open a joint bank account to finance holidays and living expenses;
    (c) having accepted the respondent's marriage proposal she expected to have a marriage ceremony that was in accordance with her culture;
    (d) it was likely to take a couple of months for her parents to be present at any such marriage celebration;
    (e) she did not hold out or represent to people that she was intending to marry the respondent;
    (f) she denied ever speaking to the respondent about the two marrying prior to late December 2023; and
    (g) she said the respondent told her that the marriage took place so as to improve the
respondent's prospects of obtaining valid residency in Australia.
58 The applicant was cross-examined about the respondent's status as a permanent resident. The following exchange occurred –
   MR GRAY: And as far as – yes, I see. You then go on to say that you always believed he was an Australian permanent resident. Now, if that wasn't a matter that was an attraction factor for you, then why are you pointing that out at this point in your material?---I'm pointing it out because when I found out that the marriage was actually real, that was when he admitted to me that he was not a permanent resident, but rather, he was seeking asylum, and it would take a longer time, and that was why the marriage happened, because I never believed that the marriage was real.
   So - - -
   HIS HONOUR: Just one second. As far as you know, is the respondent seeking a protection visa? You say he's seeking asylum?---Yes.
   In other words, he says he fears going back to his place of – that he came from. Is that right?---Yes.
   Because he thinks he will be killed or subjected to some other problem?---Yes.
   When did you find that out?---That was in February when I was about to apply for my own permanent residence, because as a [health professional], I have a streamlined process of applying for permanent residency, and my application was approved in January – towards end of January, and in February, I took a bit of time because I needed to come up with finances to pay for that. So when I was about to apply, that was when he came to me and asked me to put him as a dependent, and I was, like, no, that's not possible because we are not married.
   Thank you.
   MR GRAY: So if residency status was no part of the reason why you were involved in the relationship, why would you be furious to find out that he wasn't, in fact, a resident?---I'm not furious about him being a permanent resident or not. I'm furious with the fact that I didn't know that that was a real marriage, and the fact that he also lied from the beginning, and the fact that he also wanted me to add him in my application.
59 She maintained that she had no contact with the celebrant prior to the date of the ceremony in late December 2023.
60 She gave evidence that the respondent had not spoken to the applicant's parents.
61 She said her friend was present when the respondent proposed and the only two witnesses present at the impugned wedding ceremony were the photographer and a friend of the photographer.
​62 The applicant said in answer to questions put to her in cross-examination concerning photographs taken at the alleged ceremony in late December 2023 that the photographs were for social media purposes. She said the respondent was a social media influencer who posts a large amount of information to social media. She said the marriage was not real. She said the respondent told her that the alleged wedding ceremony was for social media publication. She gave the following evidence –
   MR GRAY: And you don't think that's odd, that he's posting about a wedding, not saying anything about a prank? There was nothing in that caused you to suspect, at that point, that there was something more to it?---No, because he actually explained the whole thing to me. So he – when he asked me to come with a – a white dress, and we went for – when I got to the venue, and I didn't see any white party. Because, for me, my intention of getting ready was for a white party. So when I got there, and I didn't see anybody in white, I asked him, "What's happening?" And he pulled me aside, and he told me that he's organising a prank wedding for his social media, to be precise, Instagram, because he wants to boost his content, and wants to start monetising his Instagram page.
63 The applicant said the ceremony was an act. Her position on point was as follows –
   HIS HONOUR: Can you help me with a couple of questions rising out of the exchange that you just had. The chronology is important. You told me before that he, in fact, proposed to you, and you accepted it. Is that right?---Yes.
   When you accepted it, did you regard yourself as being engaged to marry?---Yes.
   Even though there had been no discussion with your parents about getting your hand in marriage, and he hadn't even met your parents. Is that right?---Yes.
   But were you nevertheless willing to regard yourself as married – sorry – engaged?---Yes. Engaged. Yes.
   Okay. Well, now, what was the interval between the proposal and the fictitious ceremony, on your version? So the proposal happened [in late] December, and the marriage happened [two days later].
   So two – two days? ---Yes.
   Okay. In the intervening period, somehow it was put to you that you had to dress up to appear in white as if a bride?---Yes.
   He also was dressed in a tuxedo, and he had glasses on. We've seen the photographs, but it appeared that somehow the two of you looked like you were intended to be photographed as newlyweds. Is that right?---Yes.
   Were you told that you were going to be photographed as if you were newlyweds?--Yes. He got a photographer and a friend, and they came and helped with, you know, taking the pictures. And I – I never thought that [Mr C] was a celebrant because he didn't – he didn't say anything to me. We just went to the garden, and the whole process began.
   Okay. So there's a very, very short time between the proposal and the alleged ceremony, but in that time, there had been no discussions with your parents about getting married and no, obviously, engagement celebrations or anything of that sort?-​--No. I mean, no one was present for the – the engagement because I finished from work that day, and I went home, and he came to pick me to go for his spa.
   Okay. Well - - -?---Yes.
   So just one second – you get up. You're dressed in a beautiful white gown?---Yes.
   Was your hair done for the event?---Yes. Yes.
   When that was – when all of that was underway, did you ever stop and think, why are we doing this? What's going on?---It didn't worry me because we actually attended a white party in Queensland [in] September […] with a lot of friends, and there was still, like, media coverage for that, so it didn't worry me attending another white party.
   Okay. Well, now, on the day of the ceremony, a person who we now know to be [Mr C] - - -?---Yes.
   He undertook the formalities that often accompany a wedding ceremony. Is that right?---Yes.
   When he was undertaking those activities and asking you questions, did you ever stop and say, what are we doing? This looks like I'm getting married. I don't want to be married. What's going on?---I mean, to the best of my knowledge, I – I think that marriage only happens in a court. A court marriage happens in a court, so I never suspected it's because – I believed him that – [Mr Achthoven] has always been, like, a very social media person, and he posted lots.
   Well, just before we get to that - - - ?---Yes.
   You thought that weddings occurred in courts. That's how it works in [Country D], doesn't it?---Yes, that's where it is.
   Okay. But you had the presence of mind to ring someone about the validity of the notice of intention to marry. Who did you ring? And why did you ring that person?--So when – when I got there, and I found out that I didn't see other people in white. And he was mentioning about getting married. And I got furious. And then he started laughing at me and was like, "No", that, "We are not getting married", that - - -
   He actually said that - - -?---Yes.
   --- in those words?---Yes. That it was just for his social media content. Then I walked away and I called my friend. And I told her like, "Look, this is what is happening." And even she laughed off. She was like, "No, dude, that's not how things work in Australia." So after that conversation with her, it didn't worry me again. And I knew that, you know, he was a social media person. So I was okay doing – doing that.
   But coming back to when the celebrant was asking you questions about whether you freely enter into the solemn act of marriage, whether you agree to it and all that jazz, did you say, "Yes"?---Yes, I thought it was all an act. And I - - -
   What do you mean by that? You thought it was all an act?---Yes. Because they kept on videoing everything, so I felt like it was, you know, we had – we had to act - - -
   You thought you were - - - ?---to make it look real.
   You thought you were somehow involved in an advertisement or something like ​that?---Yes.
   But – what was the relevance of this social media platform? I mean, why – what is your evidence about his taking this video for publication on a social media platform?---Yes. Because now a lot of, like, the youth now rely on making money off from social media.
   And what was he - - -?---It's - - -
   And what was he doing as far as you knew - - -?---Yes.
   ---with this video that he took and making money, somehow, from it?---Yes. So whenever you – on social media, especially on Instagram or TikTok, whenever you post a video and there's lots of views on that video, Instagram will start paying you - - -
   Yes?--- - - - especially when you have lots of following.
   Yes, and they have to be the thousands, don't they? Yes, he has lots of following. I have his social media page. And his – his Instagram page is also .....
   Okay. Well, you might have thought that the ceremony was a contrivance or a fake. But he had proposed and you had accepted?---Yes, I – I accepted. And I didn't expect to get married the next day. And we have planned the trip since October, when we came back from the trip that we went to Queensland. So he didn't – I – I never suspected, like, anything fishy. Because he – he already told me that he would like to take me to Sydney in December. And I took a break from work. And I haven't been to Sydney before. So I was happy doing that. And when he also explained, like, this was just for social media, it didn't worry me.
   And as a result, you didn't question the marriage celebrant, saying, “What are you doing? I don't want to be part of this?---No, I didn't.
   You thought it was some sort of advertisement even?---Yes, I was – I was happy doing it. And the fact that, you know, at the end, we had to kiss, which was the main reason he told me he wanted to use me to do that instead of someone else, so that I don't feel jealous. So I was happy like - - -
   But you were engaged?--- - - - playing along.
   You were engaged by that stage?---Yes. I mean, it's all an act, so he could – he could have used anyone. Which is what he told me, that he didn't want to use anyone, because he knew that would be upset if I see the video.
   Okay. Your evidence is there was less than two full days between the proposal that you accepted and the fictitious ceremonies; is that right?---Yes. And I also want to talk about the notice.
   No - - -?---Okay.
   ---you have to let the - - -?---Okay.
   Okay. Thank you. Is there anything arising out of that? If there is, feel free to ask.
64 The applicant gave evidence that the ring presented to her by the respondent at the alleged ceremony in late December 2023 was the applicant's. She said the impugned ceremony was a marriage for social media and she had to act as real as possible.
​65 The applicant gave evidence that she had not seen the notice of intended marriage before, let alone had she signed it.
66 The respondent was cross-examined by Mr Goddard. The more important matters that arose from the evidence he gave in answer to questions put to him by Mr Goddard were as follows –
    (a) the respondent denied being a social media influencer;
    (b) he is Christian by religion;
    (c) he knew the applicant is a religious woman;
    (d) he asserted that he and the applicant lived together from a week after she met the applicant; and
    (e) he admitted that his relationship with the applicant ended in February 2024.
67 He was asked about the notice of intended marriage dated 20 November 2023. He said he commenced making plans for the marriage in November 2023. That answer seemed peculiar because he had not even proposed to the applicant by November 2023 (that happened in late December 2023) and his evidence that he lived with the applicant from October 2023 was disputed by the applicant. He said he had communicated with the applicant's mother. The respondent said he did not sign the notice of intended marriage witnessed by Mr C in the presence of Mr C because Mr C was in Sydney and the respondent was in Melbourne. He admitted that the applicant was not present at the time, 20 November 2023. The respondent said the applicant's part of the document was signed on the day of the ceremony. He agreed that only the photographer and a friend of the photographer attended the wedding. He agreed that there were no gifts at the alleged wedding ceremony. He said that they drove from Melbourne in a hired car to reach Sydney and "rented a hotel" (his words). He agreed no representative from the bride's family attended the ceremony.
68 He admitted he had more than 17,000 Instagram followers.
CREDIT ISSUES
69 In this case the applicant asserted that the purported wedding ceremony in which she allegedly participated in late December 2023 was a sham in that she believed that she was ​acting in an event to be filmed and used by the respondent in his social media activities. The respondent contended that the wedding was valid in fact and in law and that there was no sham component to it. He opposed the declaration of nullity sought by the applicant, contending that if the applicant wanted to end her marriage to the respondent, she needed to divorce him and as they had not separated for 12 months, the applicant could not apply for a divorce.
70 The threshold issue in this case was whether the applicant had engaged the provisions of s 23B(1)(d) of the Marriage Act. I take the view she had not only engaged those provisions but that she believed the impugned ceremony was an act, that she was a performer in a video to be used by the respondent in his social media activities and that she did not participate in a valid marriage ceremony.
71 In reaching that conclusion, I prefer the evidence of the applicant on critical issues over the contrary evidence on the same issues as given by the respondent. My reasons for that conclusion now follow.
72 As the trial judge, I enjoyed all the advantages of which Kirby ACJ spoke in Galea v Galea especially the benefit of hearing and observing both witnesses, watching them when giving their evidence including hesitations, aggressive responses or unlikely requests for clarification of the question. In assessing the evidence given by each party I have considered it according to the civil evidentiary standard of the balance of probabilities assessing which version is more probable than the other. I have assessed the internal consistency of the version each gave and whether it made chronological sense. To the extent that documentary evidence purported to support one version or the other, I have had regard to that or those documents. It is utile to address the evidence in which the version of events as given by the applicant was in conflict with the version of the evidence of events as given by the respondent.
73 The applicant and respondent agreed that they met in September 2023, initially online then later face to face.
74 The respondent asserted that several events occurred in the month of October 2023. First, he said the applicant and he commenced to cohabitate at his home in Suburb F. The applicant gave no such evidence. Instead she gave evidence that she met online in September 2023, ​they met in person the following day in Suburb B, the next day they attended a church and had lunch thereafter after which they went to their respective homes and thereafter the applicant and the respondent commence to regularly communicate.
75 The respondent said nothing in his evidence about a meeting with the applicant in Suburb B in September 2023, or about attending a church the following day or about having lunch thereafter with the applicant. Instead he deposed in paragraph 5 of his 23 September 2024 affidavit that the two met on a dating online platform and that "during our initial meetings" the applicant disclosed her eagerness to settle down. He did not say how many "initial meetings" they had nor did he say during which of those initial meetings did the applicant disclose her eagerness to settle down. For that matter, having stated that he and the applicant met online, nowhere in his evidence did he reveal when the two actually interacted face to face. He said nothing about the church meeting or the lunch. In view of the detail of the sequence of events as given by the applicant, there being no comparable detail given by the respondent I find on the balance of probabilities that the version of events as given by the applicant in respect of the interaction between the two in the month of September 2023 is to be preferred over the version of events during the month of September 2023 as given by the respondent. Accordingly, I find as proven facts in this case as follows –
    (a) the applicant met the respondent on an online dating platform in September 2023;
    (a) the two met in person the following day;
    (b) the next day the respondent and the applicant attended a church service in Melbourne;
    (c) after the church service the two took lunch together after which the two went to their separate places of residence; and
    (d) after this the applicant and respondent commenced regular communication.
76 The respondent asserted that the applicant "gradually moved into (his) residence within the first week of meeting". He deposed to his commencing to cohabitate with the applicant during October 2023. I reject the respondent's evidence on point. I say that for several reasons, namely –
    (a) the first week of their meeting, on the respondent's version of events, was early September yet on his own evidence he stated that the applicant moved into his residence during October 2023, rendering his own evidence of the alleged cohabitation erroneous;
    (b) he did not pinpoint a date on which he said the two physically met and instead he deposed to having many initial meetings without identifying the number of those meetings, where they were allegedly held, the frequency of those meetings, whether face-to-face or on the internet or otherwise;
    (c) as a matter of common human experience, I regard it as being highly unlikely that the applicant moved in with the respondent at his residence after only one online interaction;
    (d) the applicant had her own apartment in Suburb H in September and October 2023 and it made no sense for her to give that up so as to move in with him thereby continuing to incur rental outgoings;
    (e) the respondent gave no evidence about any discussions or conduct as might induce the applicant to move in with him as he alleged;
    (f) his residence was in Suburb F whereas hers was in Suburb H and the applicant gave no evidence that she had any ties with Suburb F, whether by reason of her work as a health professional or by reason of any circle of friends in Suburb F; and
    (g) in October 2023 the applicant was 23 years of age whereas the respondent was 37 years of age, there being no evidence given by either to the effect that as at October 2023 either had ascertained that each was compatible with the other such as to support the notion of cohabitation.
77 The version of events of the month of October 2023 as given by the applicant more closely approximated the likely sequence of events between the applicant and the respondent. She deposed to attending an event in Queensland. She said she had arranged to meet the respondent in Queensland, which she said they did.
78 According to the applicant, by October 2023 she had met the respondent online in September 2023, the next day they met in person in Suburb B, the following day they applicant and the respondent attended church and they dined together, they subsequently regularly communicated with one another and then they met in Queensland in the context of an event, after which the two started spending time together. To my mind that version of events is to be preferred over the respondent's version of events culminating in the two cohabitating in October 2023 after only a few interactions. It more likely represented the actual sequence of events that occurred.
​79 The applicant's statement that she and the respondent started spending time together after the Queensland trip told little to nothing about the frequency of the time they spent together, that is to say, how often, where, whether face-to-face or otherwise and in whose company. Yet that evidence was to be contrasted with the respondent's evidence that the applicant moved in with him in October 2023. On his version of the evidence, nowhere did he descend to the detail about their daily lives subsequent to cohabitation, including –
    (a) what activities he performed on a day-today basis as a service industry worker;
    (b) who his employer was;
    (c) how he got to his place of employment each day;
    (d) with which friends the applicant and the respondent interacted between October 2023 and late December 2023;
    (e) how often the applicant worked on a day-to-day basis;
    (f) how she got to her place of employment each day;
    (g) who her employer was; and
    (h) in what activities he engaged on a daily or regular basis as an influencer or in the pursuit of his work promoting his social media activities.
80 As is disclosed above, I reject the respondent's evidence that the respondent and applicant moved in together in October 2023. I find that each maintained separate residences from early September 2023 until late December 2023 and beyond.
81 Chronologically, the next date of significance was 20 November 2023 being the date of the notice of intended marriage. The applicant gave evidence that she had no involvement in the creation or execution of that document. She deposed to meeting Mr C once, at the alleged ceremony. She said she did not attend Sydney in November 2023. In his affidavit made 23 September 2024 the respondent said nothing about the document dated 20 November 2023. He was cross-examined about the 20 November 2023 notice of intended marriage. He admitted to proposing marriage to the applicant a couple of days before the ceremony yet he was asked in what circumstances, in November 2023, he signed a notice of intended marriage. He gave a non-responsive answer introducing apparently irrelevant information about a list of items. The respondent gave evidence in answer to questions put to him in cross-examination that the celebrant, Mr C, was not physically present when signing the ​document and that it was executed electronically. The respondent said the applicant was not present when the respondent signed the document and emailed it to Mr C. The respondent said the applicant did not sign the document on 20 November 2023. The respondent was specifically challenged about the applicant's signature on that document to the effect that the applicant at no stage signed it. The respondent disputed that, saying that the applicant signed the notice of intended marriage on the day of the wedding in late December 2023. When pressed about whether the respondent actually saw the applicant sign the notice of intended marriage on the day of the wedding, he said –
   "Yes, signed something. Yes".
82 That was highly equivocal evidence and evidence that did not persuade me on the balance of probabilities that the respondent actually saw the applicant sign the notice of intended marriage on the day of the impugned wedding. When shown an amended version of the notice of intended marriage, he said he was not aware of that.
83 Mr C, the celebrant, did not give evidence in this case. It was not possible to obtain his version of the circumstances surrounding his execution of the notice of intended marriage and whether two documents were executed by him.
84 Between 20 November and the date of the proposal in late December 2023 both the applicant and the respondent gave little evidence on any issue of relevance in this case. The applicant did not depose to any aspect of a relationship, if any, between her and the respondent. She did not say whether the two dated, the frequency of their meetings, their intimacy or anything else. For that matter, in her 12 September 2024 affidavit she was wholly silent on events between her trip to Queensland and the day after the proposal in late December 2023. Likewise in both affidavits made by the respondent he did not depose to events between October 2023 and the date of the proposal in late December 2023. However, on his version of events (that I have rejected) the applicant moved in with the respondent in October 2023.
85 It was a common fact that the respondent proposed marriage to the applicant in late December 2023 and that the applicant accepted that proposal. However, the applicant made no mention of the date of the proposal in her 12 September 2024 affidavit nor in her 26 September 2024 affidavit. The respondent deposed to his marriage proposal in paragraph 14 ​of his 10 July 2023 affidavit. He also deposed to the proposal in paragraph 12 of his 23 September 2024 affidavit.
86 From his answers given to questions put to him in cross-examination the respondent said he and the applicant drove to Sydney after the proposal at an entertainment venue, reaching Sydney on or immediately prior to the date of the alleged ceremony in late December 2023. He gave no evidence of when and in what circumstances he retained the wedding celebrant to perform (on the respondent's version of events) a wedding ceremony two days after the applicant accepted his proposal of the marriage. The respondent gave no evidence of the circumstances in which a photographer was retained. He gave no evidence of how the venue was selected as the venue. He gave no evidence of discussing the venue, the celebrant or the photographer with the applicant. To the contrary, the applicant deposed as follows in paragraph 13 of her 12 September 2023 affidavit –
   "I had never met [Mr C] or discussed anything about getting married in Sydney with the respondent."
87 The applicant's evidence about the events of late December 2023 was not entirely logical. On some date after the visit to an event in Queensland, yet on a date not specified, the applicant deposed to a general discussion with the respondent about visiting Sydney. The context of that discussion did not involve marriage, according to the applicant. On her version of events, the respondent proposed to her in late December 2023. She gave that evidence during her viva voce evidence. She did not give any information about the discussions between the respondent and her anterior to their visit to the entertainment venue, especially its purpose. She did not say where his proposal took place. She did not say whether they stayed overnight at the entertainment venue on the date of the proposal in late December 2023 nor did she give details of any discussions about how they were to get to Sydney, when they would leave, when they intended to arrive or where they would stay once they did arrive. The applicant deposed to being told by the respondent that they were to attend a white party in Sydney for which the applicant needed to bring a white dress. She gave next to no information about the events on the date of the alleged ceremony in relation to the event they were attending. When they arrived at the venue it must have been obvious to her that she was not attending a white party because no evidence existed of other attendees dressed in white being present. When she met Mr C and the photographer, it must also have been obvious to her that she was not at ​a white party. The applicant deposed to wanting to travel to Sydney. She said she took a break from work to do that. She said that the respondent explained to her that the resemblance of events as a wedding "didn't worry me" (her words) because the respondent said the event was for social media. She said she did not question the celebrant when he recited his words. She said that even when she kissed the respondent at the end of the ceremony she was happy to do that because she was "playing along" (her words). When it was pointed out to her that she was engaged by the time the impugned ceremony took place, she gave evidence that "it's all an act" (her words).
88 The respondent denied that the wedding ceremony was an act. He said it was genuine.
89 The applicant contended that she had no family or friends present at the ceremony in late December 2023. She said she wore a white dress, not a bridal gown. She said that her parents had not voiced an opinion on the wedding allegedly conducted in late December 2023. She said the respondent was a social influencer, that he generated income from persons who saw his social media postings and that he had in excess of 17,000 social medial followers. She maintained she was acting in a video he made depicting a marriage ceremony.
90 No evidence was given by either party about how and in what circumstances the discussions between the applicant and respondent changed from them travelling to Sydney to participate in a white party to them travelling to Sydney to participate in the staging and filming of a mock wedding ceremony. The applicant brought a white dress to the event in late December 2023. She said she had no knowledge of or involvement in retaining a wedding celebrant for that day. She said no family or friends attended to witness the event. She gave no evidence of a wedding celebration after the ceremony. She said she returned to Melbourne three days later yet she gave no evidence about the activities in which she and the respondent engaged during that period, allegedly as a married couple. For that matter, nor did the respondent. As a matter of common human experience, a newlywed couple is usually very enthusiastic about his and her status as newlyweds. No evidence in this case was given of events immediately following the impugned ceremony.
91 In my view, it beggars belief that a couple would become engaged in late December then married two days later. That is not to say that impulsive marriages do not occur. They do. But ​in the events of this case, on 20 November 2024 a wedding celebrant had been retained over a month before the respondent had even proposed to the applicant or given her consent.
92 On the balance of probabilities, in my view it is more probable than not that the applicant believed she was acting in a social media event on the day of the alleged ceremony, rather than freely participating at a legally sanctioned wedding ceremony. I find it impossible to accept that the respondent seriously intended to marry the applicant within less than two days of the applicant accepting his proposal of marriage. The applicant did not have a single family member or friend present at the alleged wedding ceremony. She was religious. Precisely why she would participate in a civil marriage and not in a church marriage ceremony went unexplored. It made no sense to me that she would.
93 I take the view that on the balance of probabilities the applicant participated in the events in late December 2023 at the venue, after being told by the respondent, a social media influencer, that the video was being made for publication on social media and that it was an act. I find that it was not a legally valid marriage ceremony.
SECTION 23B OF THE MARRIAGE ACT
94 The applicant relied on there being no real consent from her within the contemplation of s 23B(1)(d) of the Marriage Act. That section provides 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 did not understand the nature and effect of the marriage ceremony; or
       (e) either of the parties is not of marriageable age;
   ​and not otherwise".
95 The applicant's counsel indicated that he relied on's 23B(1)(d)(ii) or (iii). He submitted that the evidence demonstrated that the applicant did not provide real consent because she was mistaken as to the nature of the ceremony performed or she did not understand the nature and effect of the marriage ceremony. Of those two subsections, it seemed to me that's 23B(1)(d)(ii) was the more applicable in that the applicant was mistaken as to the nature of the ceremony performed, she believing she was participating in an enactment of a video of a marriage ceremony to be posted for social media purposes, rather than her actually undergoing her own marriage ceremony.
THE CORRECT APPROACH TO STATUTORY CONSTRUCTION
96 Section 23B(1)(d) of the Marriage Act has been the subject of an array of decisions each of which is fact-intensive and each of which has turned on its own facts.
97 No careful examination was given in those authorities to principles of statutory construction, adumbrated by the High Court, which guide single judges in the proper manner with which to construe provisions of statutes. Those authorities include Project Blue Sky Inc v Australian Broadcasting Authority, Taylor v Public Service Board, Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation, K & S Lake Freighters Pty Ltd v Gordon & Gotch Pty Ltd, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue and Northern Territory v Collins.
​98 When sitting as a member of the Full Court in Wagstaff v Wagstaff, I made various observations about the proper approach to statutory construction. It us utile to set out here what I said there –
   "First, as with all legislation, the primacy of the words used in the legislation itselfdetermines the proper construction of the legislation (Project Blue Sky and Alcan (NT) Alumina Pty Ltd). The context, the general purpose and the policy of the provisions of legislation are surer guides to meaning than is the topic with which a statutory provision is concerned (Project Blue Sky). Every word of a section of legislation must be construed so as to give meaning to the relevant provision (Commonwealth v Baume (1905) 2 CLR 405; and Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1. Accordingly, every word of every subparagraph of s65DAA(3), (4) and (5) must be construed. Context is critical (Project Blue Sky and Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (2020 282 FCR 1)."
99 A point of construction emerged about the relevance of the use of the word "or" where twice appearing between subparagraphs 23B(1)(d)(ii), 23B(1)(d)(iii) and s 23B(1)(e). The word "or" did not appear between subparagraphs (a), (b), (c) and (d). The word "or" also did not appear between ss 23B(1)(d)(i) and (ii). It seemed to me that each circumstance set out in subparagraphs (a), (b), (c) and (e) were stand alone events. In other words, s 23B(1) rendered void a marriage purportedly entered into after the commencement of the Marriage Amendment Act 1985 where either party was, at the time of the purported marriage, lawfully married to another person. It also rendered void a purported marriage where the parties were in a prohibited relationship. It also rendered void a purported marriage which was not a void marriage by force of s48 of the Marriage Act. It also rendered void a purported marriage where either of the parties was not of marriageable age. In other words where any of the circumstances set out in s 23B(1)(a), (b), (c) or (e) were enlivened, the purported marriage was void. So far as s 23B(1)(d) was concerned, it introduced the phenomenon of either party's consent not being real consent because –
    (a) the consent was obtained by fraud;
    (b) one party was mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
    (c) one party did not understand the nature and effect of the marriage ceremony.
​100 Subsection 23B(1)(e) is connected to s 23B(1)(d) by the word "or".
101 The applicant did not rely on fraud in s 23B(1)(d)(i). She cast her case alternatively under s 23B(1)(d)(ii) or s 23B(1)(d)(iii). She asserted that she was mistaken as to the nature of the ceremony performed because the ceremony being performed on 23 December 2023 was a real wedding ceremony (according to the respondent) whereas the applicant believed the ceremony was an act or a hoax depicting actors pretending to marry.
102 This case differed from many of the reported decisions where mental infirmity procured or was causative of the applicant s mistake as to the nature of the ceremony performed for the purposes of s 23B(1)(d)(ii). This case did not involve the applicant not understanding the nature and effect of the marriage ceremony itself. She did. However, she contended that she did not participate in a marriage ceremony because she believed (based on what the respondent told her) that she was being required to act in a video to be used for the respondent's social media purposes. This was not a case where the applicant did not understand the nature and effect of the marriage ceremony nor was it a case where the applicant or the respondent was not of marriageable age.
103 The applicant relied on her mistake as to the nature of the ceremony performed. In essence, while the respondent asserted that the ceremony was a valid wedding ceremony, the applicant contended that she believed that she was acting as a bride in a video to be used for the respondent's social media activities. Counsel for the respondent relied on a collection of authorities where the relevant ceremony was performed in a language not spoken by the applicant. The facts of this case bear no relation to those authorities. He also cited cases said to involve betrothal ceremonies. Those authorities included Kelly v Kelly, Valier v Valier and Rabab & Rashad. Counsel for the respondent endeavoured to distinguish those cases mainly on the basis that the applicant's command of the English language is very good.
104 In final addresses Mr Goddard of Counsel submitted as follows –
   "Well, yes, your Honour. It's not a real consent because – it was either because we say it was obtained by fraud – we don't rely on duress – or that my client was mistaken as to the nature of the ceremony performed, or that she did not understand the nature and effect of the marriage ceremony. So it's really reliant on all three of ​those sections in the alternative. We don't rely on duress. We don't rely on my client not knowing the identity of the other party. She did. What we say, quite simply, your Honour, is that when it's an agreed fact that she attended a ceremony in Sydney in December 2023 that had the outward appearance of a marriage ceremony, and she says she did not understand it to be a genuine marriage ceremony".
105 Paragraph 1 of the initiating application filed to commence this proceeding disclosed that the applicant relied on s 51 of the Family Law Act as well as s 23 and 23B of the Marriage Act. That was to be contrasted with the opening by Mr Goddard (set out immediately above) in which Mr Goddard squarely relied on fraud (but not duress) as well as the applicant's mistake as to the nature of the ceremony performed. When pressed about her state of mind, Mr Goddard submitted as follows –
   "Well the submission is that she did not believe it was a genuine marriage ceremony. Her instructions are that she believed it was a show put on by the respondent for the benefit of his social media profile, that it was a prank, that it wasn't a real wedding ceremony. That is her position. That is her evidence".
106 Mr Goddard submitted that a presumption existed that the recording of the marriage (on the certificate of marriage) is correct and so the applicant bore the onus of proof as to her mistake. He submitted that the relevant issue was whether the parties engaged in the marriage ceremony intending to marry and intending to marry "that person", as defined. Mr Goddard submitted that the evidence about mistake by an applicant was entirely subjective. Mr Goddard submitted that the applicant should be accepted in her evidence that she and the respondent did not live together upon their return from Sydney after the alleged ceremony in late December 2023. He also submitted that the application to commence this proceeding was filed in July 2024, that is to say seven months after the alleged wedding. In answer to my question about whether any formal defects existed in documentation, Mr Goddard said the evidence revealed that the applicant did not sign the notice of intended marriage.
CONSIDERATION
107 In my judgment the applicant discharged the onus of proof in this case in respect of her plea that her alleged marriage to the respondent in late December 2023 was a nullity by reason of her consent not being real consent on the basis that she was mistaken as to the nature of the ceremony performed. In essence, the applicant's evidence was that she believed she was participating as an actor in a video presentation of a marriage ceremony the respondent ​intended to use as part of his social media activities. I accept Mr Goddard's characterisation of the applicant's behaviour during the impugned marriage ceremony namely that the applicant was acting the part of the bride in an endeavour to make credible the respondent's social media work.
108 Whether or not the applicant's belief about the nature of the wedding ceremony was founded on reasonable grounds is irrelevant. The subjective state of mind of the applicant is key. Here, I am persuaded on the balance of probabilities that the applicant was mistaken about the nature of the ceremony performed. She believed she was acting. She called the event "a prank". It made perfect sense for her to adopt the persona of a bride in all things at the impugned ceremony so as to enhance the credibility of the video depicting a legally valid marriage. She had not met the celebrant prior to the date of the alleged ceremony, she had not signed the notice of intended marriage, she did not wear a bridal gown and instead she wore a plain white dress. No member of her family was present. And the alleged ceremony took place in less than two days after the applicant accepted the respondent's proposal of marriage. That is not to say that people sometimes marry in accelerated circumstances. But no evidence was led to the effect that the applicant was driven to marrying in accelerated circumstances.
109 The essence of the applicant's case is that she believed she was participating in some form of enactment of a ceremony of marriage in which she played the bride, akin to an actress playing a role in front of a camera. To my mind, there is no fault in reasoning or in the logic of her contentions in that regard. She believed that the respondent was a social media influencer who had asked for her help to promote his social media work. She was told to bring a white dress while travelling in Sydney, which she did. She was not told to obtain a bridal gown. She did not have her family members present to witness the event on the date of the alleged ceremony. All those factors demonstrated to me that the applicant did not provide real consent to her participation in the impugned ceremony of marriage in late December 2023.
110 Some endeavour was made to suggest that the respondent was marrying the applicant with a view to improving his migration status. He denied any such suggestion. In any event while the applicant faintly adduced evidence on point the issue was not seriously pursued. I am unwilling to make any findings on point. It is sufficient to rest my decision on the wording of s 23B(1)(d)(ii) of the Marriage Act, which I do.
​CONCLUSION
111 For those reasons I make a declaration that the marriage between the applicant and the respondent in late December 2023 at a venue in the state of New South Wales is void.
112 I grant a decree of nullity in relation to that marriage.
113 In respect of the costs order sought in paragraph two of the applicant’s initiating application dated 8 May 2024 I order –
    (a) the applicant must file and serve any affidavit and submissions in support of her costs application by 4.00pm on 14 November 2024;
    (b) the respondent must file and serve any affidavit and submissions in opposition to the applicant’s application for costs by 4.00pm on 28 November 2024; and
    (c) the question of costs will be determined thereafter on the papers.
I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson.
Associate:
Dated: 17 October 2024
* ↑ T 69 L 30.
* ↑ T 38 L 40.
* ↑ T 39 L 4.
* ↑ T 39 L 10.
* ↑ T 39 L 25.
* ↑ (2011) 243 CLR 361.
* ↑ GLJ v The Trustees of the Roman Catholic Church of the Diocese of Lismore (2023) 97 ALJR 857.
* ↑ T 69 L 39.
* ↑ T 70.
* ↑ The word "[…]" of the names [applicant's mother's name] had been struck through then reinstated.
* ↑ The use of "official ceremony in [Country D]" raised the issue of the status of any ceremony in Australia not being official. The point was not pursued in cross-examination, however.
* ↑ T 36 L 24.
* ↑ T 71 L.
* ↑ T81 L30.
* ↑ (1990) 19 NSWLR 263.
* ↑ T 78.
* ↑ T 84.
* ↑ T 86 L 36.
* ↑ T 86 L 46.
* ↑ T 53.
* ↑ T 53 L 36.
* ↑ T 53 L 46.
* ↑ T 54 L 1.
* ↑ Marriage Act 1961, s23B(1).
* ↑ Sikander & Vashti [2018] FamCFC111, In the Marriage of Osman & Mourrali (1989) 13 Fam LR 444, In the Marriage of Najjarin & Houlayce (1991) 14 Fam LR 889, In the Marriage of Hosking (1994) 18 Fm LR 581, AK v NC (2003) 32 Fam LR 16, Carroll & Sinclair [2011] FamCA 651, Khwaja v Sinha (2011) 46 Fam LR 309, Oliver & Oliver [2014] FamCA 57, Azmi & Shinde [2014] FamCA 824, Bown & Jalloh [2014] FamCA 785, Sita & Bedi [2015] FamCA 1105, Radtke & Pagano [2016] FamCA 784, Breust & Devine [2016] FamCA 892, Hill & Spiteri [2016] FamCA 1136, Sarvari & Atapati [2017] FamCA 928, Kemal & Kemal [2017] FamCA 915, Chirag & Karelka [2018] FamCA 476, Pannos & Fotinos [2020] FamCA 102, Fatisi & Hasila [2020] FamCA 209, Fern & Fern (No 2) [2021] FamCA 643, Alford & Lyden [2021] FamCA 38, Catesby & Dhillon [2021] FedCFamC1F 124, Pen & Vun [2021] FamCA 294, Gaffney & Sorenson [2023] FedCFamC1F 327, Damus & Anders [2024] FedCFamC1F 419, Kevric & Nilsson [2024] FedCFamC1F 484.
* ↑ (1998) 194 CLR 355.
* ↑ (1976) 137 CLR 208.
* ↑ (1951) 147 CLR 297.
* ↑ (1985) 157 CLR 309
* ↑ (2009) 239 CLR 27.
* ↑ (2008) 235 CLR 619.
* ↑ (2022) 65 Fam LR 461.
* ↑ Section 23B(1)(a).
* ↑ Section 23B(1)(b).
* ↑ Section 23B(1)(c).
* ↑ Section 23B(1)(e).
* ↑ Garner & Lee [2011] FamCA 1000, Ngo & Ngo [2010] FamCA 1053 and Parsa v Hamidi [2023] FedCFamC1F 8.
* ↑ [1932] 49 TLR 99.
* ↑ (1925) 133 LT 830.
* ↑ [2009] FamCA 69.
* ↑ T 2 L 33.
* ↑ T 3 L 17.
* ↑ T 9 L 36.
* ↑ T 16.
This work is a decision of an Australian court and is copyrighted in Australia for 50 years after publication pursuant to section 180 of the Copyright Act 1968 (Cth).
However, as an edict of a government, it is in the public domain in the U.S.
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