Farag & Farag [2025] FedCFamC1F 725 (26 September 2025)

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 the pseudonym Farag & Farag has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This is an application concerning a marriage entered into by the applicant with the respondent in the state of Country B.
2. The applicant was born in Country B in 1997 and immigrated to Australia with her mother when she was around two years of age. She gives evidence that her mother obtained citizenship in Australia and herself as a result of her father having citizenship when she came to Australia.
3. She lived with her parents in Australia until she was 15 years of age and at that time her parents took her back to Country B for what she believed was to be a holiday. After arriving in Country B she became aware that it was intended to arrange for her to be married to a relative of her father. She says in her affidavit she did not want to get married because she was in year nine and she wanted to finish her schooling and was told she did not have a choice. Later in her affidavit she says she did not think she had an option but to accept the proposal because she feared her father and grandfather getting angry if she said anything to the person that was to perform the ceremony. Her affidavit provides no detail as to why she held those fears or beliefs which makes it difficult to rely upon that part of it. Fortunately, duress is not the only basis upon which this case can proceed towards an application for a nullity order with respect to the marriage.
4. As the applicant was only 15 years of age at the time of the marriage, the marriage would be void if it took place in Australia due to her age, it would also be void if it took place overseas due to her age if she was domiciled in Australia at the time of the marriage. If she were not domiciled in Australia at the time of the marriage, it appears that s 88D of the Marriage Act 1961 (Cth) would have the result that the marriage would not have been recognised as valid whilst she was under 16 years of age but may well have been recognised as valid thereafter if it had not been repudiated or terminated in some way.
5. The question that arises for determination in this case is whether or not she was domiciled in Australia at the time she married in Country B.
6. A child's domicile is determined in accordance with the Domicile Act 1982 (Cth). Unfortunately, the representatives of the applicant appear to not have considered the terms of it when drawing her affidavit because s 9(1) sets out that a child who has their principal home with one of their parents, has the domicile of the parent and that domicile continues with the parent from time to time. It does not appear that in this case the rules relating to choice of domicile are operative as there is clearly evidence that, as a girl of 15 going to school in year nine, she was living with her parents and that therefore her principal home at the relevant time was with her parents in Australia. Her domicile was therefore dependent upon the domicile of her parents.
7. Her evidence in this case was that her and her mother came to Australia on visas on the basis her mother had married her father and that she was his child. Both obtained citizenship for the purpose of living with him in Australia. They have throughout her life, all lived in Australia. Although her father has returned to Country B from time to time, he has businesses in Australia. Whilst it is said he still has a house in Country B, the tenor of the evidence is to the effect that he was living in Australia and exercising, at least in the past, his Australian citizenship so that he could bring the applicant's mother to Australia for her to be able to obtain citizenship on the basis of her marriage to the father. However, he returned to Country B over a year ago and has not come back to Australia. On the applicant's evidence it seems that he was upset that she had chosen to separate and divorce from her husband and thereby left the family. However, the relevant time for consideration of domicile is at the time of her marriage not when he chose to leave Australia only a year ago.
8. The applicant is now 27 years of age. Her father had been living in Australia for many years both before and after the marriage. To the extent that domicile of choice applies in this case, it would be the domicile of choice of the applicant's father. Section 10 of the Domicile Act sets out that the domicile of choice must be one where a person intends to acquire a domicile in a country and that the intention is to make their home indefinitely in that country. There is no doubt on the evidence that the applicant's father was lawfully in Australia and that at the relevant time the evidence points clearly to him intending to make it his home indefinitely particularly given he brought her and her mother to live with him here and that it appears the only reason he left was his becoming upset at the separation or divorce.
9. In the circumstances of this case, I am persuaded that the applicant's father's domicile was Australia at the time of the marriage. I am also satisfied that the applicant mother's domicile of choice was in Australia as she chose to move here and live with the father and obtain citizenship here.
10. The domicile of choice of the parents of the applicant at the time she was living with them at her principal home is therefore her domicile. As her domicile was in Australia at the time of the marriage, the marriage is not a marriage that is lawfully recognised in Australia as she was under the age of 18 years and whether or not there is an argument about the potential for consent to have in someway been given by a parent, it is not relevant in this case as it could only possibly arise if she was at least of the age of 16 years and she was under the age of 16 years at the relevant time.
11. I therefore make a declaration that the purported marriage between the applicant and the respondent is void and that a decree of nullity should issue.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller.