AMARNATH & KANDAR

[2015] FamCA 1138

FAMILY COURT OF AUSTRALIA

AMARNATH & KANDAR [2015] FamCA 1138

FAMILY LAW – NULLITY – Applicant for declaration – where applicant still married at time of subject marriage – declaration made.

FAMILY LAW – PRACTICE AND PROCEDURE – Whether the wife should be referred to the Commonwealth Attorney-General following a declaration of nullity on the grounds of bigamy – where appropriate for referral.

Marriage Act 1961 (Cth) ss 23B(1), 94

Hiu & Ling [2010] FamCA 743

APPLICANT: Ms Amarnath

RESPONDENT: Mr Kandar

FILE NUMBER: PAC 4796 of 2015

DATE DELIVERED: 18 December 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 14 December 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Michael Vassili Barristers & Solicitors

SOLICITOR FOR THE RESPONDENT: In person

Orders

1. A declaration be made that the marriage between the applicant and the respondent conducted at Suburb B, New South Wales on … 2011 is a nullity.

2. That the Registrar forward the documents referred to in the last paragraph of these reasons for judgment to the Commonwealth Director of Public Prosecutions.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Amarnath & Kandar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4796  of 2015

Ms Am

Applicant

And

Mr Kandar

Respondent

REASONS FOR JUDGMENT

Context

1. The applicant wife in the present proceedings seeks a declaration that the marriage between her and the respondent husband conducted in 2011 be declared a nullity. The respondent husband does not oppose the making of the declaration.

Background

1. The applicant wife is 45 years of age. The respondent husband is 38 years of age. The applicant and respondent commenced cohabitation in 2011 on the day on which they married. There are no children of their marriage.

2. In 1996 the applicant married Mr Amarnath in a ceremony in City C, India. The marriage was thereafter registered under the Hindu Marriage Act 1955 with the application for registration it appears having been signed by both parties to the marriage. A copy of the registration as to the marriage forms part of the affidavit of the applicant filed on 14 December 2015. The registration somewhat inexplicably appears to have been effected on 13 November 1998.

3. The applicant gives evidence that she married her first husband in a “religious ceremony” in 1996. There are two children of that relationship now aged 16 and 9.

4. It appears that prior to the marriage there was little interaction between the present applicant and her first husband. The applicant expressed some doubts as to the validity of the ceremony asserting that it lacked some of the traditional aspects of a wedding. She says that no certificate was provided to her and her first husband after the ceremony and she considered the ceremony to be more of a commitment ceremony. That assertion is at significant odds with the subsequent registration of the marriage under the relevant legislation in India, such application being signed by herself and her first husband and the other matters referred to below.

5. The applicant and the first child of the marriage migrated to Australia in 2002 under the skilled migration program. The first husband joined the applicant in Australia in November 2002.

6. In 2002, presumably in relation to his immigration application, the applicant’s first husband requested that she sign documents that would facilitate him obtaining a copy of their original marriage certificate.

7. The applicant asserts that she and her first husband thereafter lived separately and apart under the one roof. She further asserts that by reason of family pressure she and her first husband agreed to have a second child. That child was born in 2006.

8. Notwithstanding that the applicant procured the registration of her marriage to her first husband in November 1998, the applicant asserts that she and the present respondent, her second husband attended at the Registry of Births Deaths and Marriages at Suburb B in 2011 to enquire as to whether the applicant’s marriage in India had been registered in Australia. Why the marriage would be registered in New South Wales is a matter for conjecture.

9. The applicant and present respondent were informed that the previous marriage was not registered in Australia. The applicant and present respondent completed a Notice of Intended Marriage with the applicant writing on the form the words “never validly married”. That assertion was completely false and in contradiction of her procuring the registration of her earlier marriage as referred to above.

10. The applicant and present respondent were married in 2011 at the Registry at Suburb B. The applicant thereafter moved from premises occupied by her and her first husband to live with the present respondent.

11. Subsequent to the marriage of the applicant and respondent the applicant sought to sponsor the respondent to Australia on a permanent partner visa. In 2012 the present respondent received a provisional residency visa.

12. Subsequently in June 2014 the applicant received information from the Department of Immigration that Centrelink records reveal details of her first marriage and the two children of that marriage. As a consequence the present respondent’s immigration status was changed to that of a “protection visa” in September 2014.

13. Subsequently on 23 October 2004 in a joint application for divorce the present applicant and her first husband obtained a divorce order in relation to their marriage solemnised in 1996.  That marriage was terminated on 24 November 2014.

Discussion

1. Section 23B(1) of the Marriage Act 1961 (Cth) (“the Marriage Act”) provides that, inter-alia, a marriage is void where “either of the parties is, at the time of the marriage, lawfully married to some other person”.

2. It is clear that at the time the applicant participated in the marriage ceremony at the registry with the respondent in 2011 she was lawfully married to another person.

3. The applicant is entitled to the relief that she seeks and a declaration will be made that the marriage between the applicant and the respondent conducted at Suburb B, New South Wales in 2011 is a nullity.

Another issue

1. Section 94 of the Marriage Act provides for the offence of bigamy. The penalty for such an offence is imprisonment for five years.

2. It is noted that on the marriage certificate relating to the marriage in 2011 the applicant is described as “never validly married”. That assertion on the evidence before the Court is blatantly false and appears to have been made simply to facilitate her marriage to the present respondent.

3. As a consequence it is incumbent upon the Court to consider whether the papers in these proceedings should be referred to the Commonwealth Attorney General so as to give consideration as to whether the applicant should be charged with the offence referred to.

4. The considerations touching upon whether to refer the papers were considered by Mushin J in Hiu & Ling [2010] FamCA 743 where his Honour said:

   REFERRAL OF PAPERS TO THE ATTORNEY-GENERAL

   The offence of bigamy

   16. The Marriage Act provides:

   94(1) A person who is married shall not go through a form of ceremony of marriage with any person.
   (1A) For the purposes of an offence against subsection (1), strict liability applies to the physical element of circumstance, that the person was married when the form of ceremony took place.

   The penalty for an offence under subsection 94(1) quoted above is imprisonment for five years.

   17.      Counsel for the respondent conceded that his client had committed the

   offence of bigamy created by the legislation quoted in the previous paragraph.

   Referral of papers - common law authority

   18.      In T and T (1984) FLC 91-588, the Full Court held (at p 79,746):

   In our opinion there can be no doubt (leaving aside any statutory prohibition) that where the evidence or other material discloses breaches of Commonwealth laws a judge ... exercising jurisdiction under the Family Law Act 1975 is entitled to bring these breaches to the notice of the Commonwealth Attorney-General.

   19.      In In the Marriage of P and P (1985) FLC 91-605, Lindenmayer J found

   that one of the parties to the proceedings had committed one or more offences relating to tax evasion which is a crime against the Commonwealth. His Honour held (at p 79,925):

   ... I am of the opinion that this Court, as a federal court exercising the judicial power of the Commonwealth, has a duty to protect the revenue of the Crown in right of the Commonwealth. That duty extends to requiring this Court to take such steps as it is able to take to ensure that the revenue laws of the Commonwealth are not defrauded or evaded by litigants or others who come before it.

   20.      In Malpass and Mayson [2000] FamCA 1253; (2000) FLC 93-061, the Full

   Court held (at p 87,996):

   31. Despite these authorities we do not think that it necessarily follows that the Court is always under a duty to report the fact of commission of possible offences to relevant authorities including revenue authorities, although it clearly has the power to do so. Questions of degree must be relevant. There are many cases where minor irregularities are revealed in relation to taxation, social security and other issues. We think it unreasonable for the Court to burden itself with a duty to report all of these matters. Different considerations may apply in relation to more blatant and substantial irregularities. We leave the determination of this issue to be determined in a case where the point arises directly.

   21.      In Georginas v Kostrati (1988) 49 SASR 371, in the Full Court of the

   Supreme Court of South Australia, Von Doussa J held (at p 376):

   Where a tax fraud or evasion is disclosed in evidence it is the court's duty to draw the evidence to the attention of the executive branch of government for such action as may be appropriate.

   22.      Accordingly, I conclude that not only am I am entitled to refer the papers in

   this matter to the appropriate authorities for consideration of whether to prosecute the respondent for bigamy but I have a duty to do so. While I do not have a duty to refer the papers in every case, the question of whether I do refer the papers in this matter is to be decided on its own facts and regard should be had to the seriousness of the potential offence.

5. The applicant’s conduct was, at best, reckless in the extreme and, at worst, a complete and wilful disregard of her obligations at the time of her remarriage to ensure that she was legally able to enter into the ceremony. The matters discussed above clearly indicate that the applicant was well aware that she was legally married at the time of her second marriage notwithstanding her protestations to the contrary. Her explanation is inherently incredible.

6. Whilst it is noted that the Court has a discretion as to whether the papers should be referred to the appropriate authorities, in these circumstances the Court considers it appropriate that the papers be referred and that the question as to whether the Applicant is to be prosecuted be dealt with by the relevant authorities and the Registrar is requested to do so.

7. It is directed that the following documents be referred to the appropriate authorities for consideration:

   a)Initiating Application filed 30 September 2015;

   b)Affidavit of the applicant filed 30 September 2015;

   c)Affidavit of the applicant filed 14 December 2015; and

   d)A copy of these Reasons for Judgment.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 18 December 2015.

Associate: 

Date:  18 December 2015