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".[1]
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".[2]
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[3] 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,[4] 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
