Bijarniya & Mahawal
[2022] FedCFamC1F 675
•7 September 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Bijarniya & Mahawal [2022] FedCFamC1F 675
File number(s): MLC 3413 of 2021 Judgment of: STRUM J Date of judgment: 7 September 2022 Catchwords: FAMILY LAW – DIVORCE – NULLITY – Application for divorce – Application for decree of nullity – Husband allegedly still married to another person at time of marriage to wife – Decree of nullity purportedly made by Judicial Registrar by consent – Decree of nullity made without delegated power – Decree of nullity ultra vires and set aside – Whether decree of nullity may be made by consent – Ground of nullity must be established – Risk of self-incrimination by consent to decree of nullity – Court to inform of right against self-incrimination. Legislation: Evidence Act 1995 (Cth) ss 128, 132
Family Law Act 1975 (Cth) s 51
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 98
Marriage Act 1961 (Cth) ss 23B(1)(a), 88A, 88C(1)(a), 88D(1), 88F, 88G(1), 94
Cases cited: Hest Pty Ltd v Sweetman Renewables Ltd [2022] FCA 337
LGM v CAM (2011) FLC 93-481; [2011] FamCAFC 195
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185; [1984] HCA 82
Starr v George [2019] NSWSC 60
Division: Division 1 First Instance Number of paragraphs: 54 Date of hearing: 6 September 2022 Place: Melbourne Counsel for the Applicant: Ms Malik Solicitor for the Applicant: Parminder Sandhu Solicitors Counsel for the Respondent: Ms Teicher Solicitor for the Respondent: Jessy & Bhullar Lawyers ORDERS
MLC 3413 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BIJARNIYA
Applicant
AND: MR MAHAWAL
Respondent
order made by:
STRUM J
DATE OF ORDER:
7 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The Decree of Nullity pronounced by a Judicial Registrar on 7 February 2022 be set aside for want of jurisdiction.
2.The Application for Divorce filed 28 March 2021 be reinstated.
3.The Application for Divorce filed 28 March 2021, the Response to the Application for Divorce filed 26 September 2021, the Initiating Application seeking a Decree of Nullity filed 8 December 2021 and the Application in a Proceeding filed 23 August 2022 be adjourned before the Honourable Justice Strum for Defended Hearing on 16 March 2023 at 10.00 am (with an estimated hearing duration of 1 day).
4.The Respondent file and serve a Response to an Initiating Application and a Response to an Application in a Proceeding by not later than 4.00 pm on 20 September 2022, to be listed to the adjourned date.
5.By 4.00 pm on 2 February 2023, the Applicant file and serve:
(a)Any Amended or Further Amended Initiating Application setting out with precision the orders sought at trial; and
(b)The Affidavits of evidence in chief of all witnesses (lay and expert) relied upon at trial (noting that affidavits filed for previous hearings cannot be relied upon as evidence in chief without leave).
6.By 4.00 pm on 16 February 2023.the Respondent file and serve:
(a)Any Amended or Further Amended Response to Initiating Application setting out with precision the orders sought at trial; and
(b)The Affidavits of evidence in chief of all witnesses (lay and expert) relied upon at trial (noting that affidavits filed for previous hearings cannot be relied upon as evidence in chief without leave).
7.By 4.00 pm on 23 February 2023 the Applicant file and serve any Affidavit/s limited strictly in reply to the Affidavit/s of the respondent.
8.No party file any further material other than as provided by these orders without leave of the Court.
9.All parties have leave to issue subpoenas for the production of documents by arrangement with the Judicial Registrar docketed with the management of the file.
Disclosure
10.Upon receipt of a list of documents, including further or outstanding documents, sought by the requesting party, the requested party, within 14 days thereof (“the prescribed period”), provide the requested documents, and in the event there is an objection or asserted inability to produce any of the requested documents, the requested party advise the requesting party within the prescribed period, by letter between their respective solicitors, why such documents have not been provided or the grounds of objection to production of same.
Expert evidence
11.The provisions of rules 7.10 and 7.11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”) be dispensed with in relation to expert evidence regarding the legal status in Country B (if any) of the Respondent’s marriage to Ms C in 2006 in Country B.
12.Pursuant to rule 7.11 of the Rules, each party have leave to call adversarial expert evidence in relation to the issue referred to in the preceding order.
13.The adversarial experts confer and prepare a written report identifying the matters upon which they agree, those upon which they disagree and the reasons for such disagreement by 23 February 2023.
14.The parties have leave to call their adversarial expert witnesses by Microsoft Teams if they are based outside of the state of Victoria.
Objections
15.If either party takes reasonable objection to any evidence of the other party:
(a)Any objections be taken no later than 2 March 2023 by service of written notice of such objections on the solicitor for the other party;
(b)The party so served notify the objecting party in writing no later than 9 March 2023 of which objections are the subject of agreement and which reasonably require determination.
Case Outline
16.The practitioners and/or the parties in the event that they are not legally represented file electronically by email to ... and serve upon all other parties by 4.00 pm on 9 March 2023 the following:
(a)A minute setting out with precision the orders sought, if different from those sought in their most recent filed Initiating Application/Response (as amended);
(b)A list specifying the most recent filed Initiating Application/Response and/or Application in a Proceeding / Response (as amended) and the affidavits filed pursuant to these orders to be read and, if not the whole affidavit, the relevant paragraphs relied upon;
(c)A chronology of relevant events (identifying, by reference to the affidavits, the supporting evidence);
(d)A list of objections to evidence upon which rulings are reasonably required, if any; and
(e)A bullet-point summary of argument in relation to the legal and factual issues in dispute; and
(f)A list of authorities.
Miscellaneous documents
17.Not later than 4:00pm on 13 March 2023, the parties’ legal representatives or the parties if self-represented confer and prepare, and the Applicant forward to the Chambers of the Honourable Justice Strum:
(a)A joint chronology in Microsoft Word format setting out all agreed facts that the parties ask the Court to take into account; and
(b)An agreed trial plan.
Court Book
18.By 4.00 pm 13 March 2023 on upload the court documents sought to be relied upon at trial into an eBrief Ready shared folder by way of joint Court Book and the solicitor for the Applicant advise the Associate to the Honourable Justice Strum of the link to the eBrief Court Book, to be paginated and to include only the following documents and in the following order:
(a)Case Outlines of all parties;
(b)the most recent filed Initiating Application/Response and/or Application in a Proceeding/ Response (as amended);
(c)filed trial affidavits of the Applicant and the Applicant’s witnesses and the Respondent and the Respondent’s witnesses;
(d)expert reports;
(e)any relevant orders previously made in the proceeding to which the Court will be referred at trial; and
(f)copies of any documents (discovered or produced upon subpoena) sought to be tendered in evidence-in-chief, if not already annexed to filed trial affidavits.
Cross-examination books
19.For the purposes of cross-examination, each party upload the documents upon which they propose to cross-examine the other party and their witnesses (lay or expert), being documents previously discovered or produced upon subpoena) into an eBrief Ready shared folder, by way of a paginated cross-examination book, and provide the link to the Court and the lawyers for all other parties prior to the commencement of cross-examination on behalf of that party.
General
20.All parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these Orders to ensure readiness for trial.
21.Should any party fail to comply with these Orders or any ensuing amending directions of the docketed registrar, the party who has complied have leave immediately thereafter to file an Application in a Proceeding (if so advised), supported by affidavit/s, seeking for the matter to proceed on an undefended basis.
22.The applicant pay all setting down and trial fees by 4.00 pm 9 March 2023 or obtain the requisite waiver thereof.
23.The practitioners (or the parties, in the event that they are not legally represented) be at liberty to approach the Associate to the Honourable Justice Strum by email to ... (copied to the other parties) for an urgent listing of the matter, if required.
24.If any of the practitioners (or the parties, in the event that they are not legally represented) at any stage form(s) the view that the matter may not be ready to proceed to trial on the allocated dates or may require a longer or shorter time for hearing than the allocated dates or any other factor may impact the hearing, they contact the Associate to Justice Strum (copied to the other parties) to seek that the matter be urgently relisted as soon as practicable.
25.The Applicant and the Respondent not permitted cross examine each other in these proceedings.
26.UPON NOTING that a party (the “examining party”) intends to cross-examine another party (the “witness party”) at trial and that there is an allegation of family violence between them:
(a)Pursuant to section 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth), the Applicant and the Respondent not personally cross-examine each other in these proceedings.
(b)If a party becomes unrepresented hereafter, that party notify the Associate to the Honourable Justice Strum by way of email to ... within 24 hours of becoming unpresented.
AND THE COURT NOTES THAT:
A.As, there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to cross-examine the other party personally.
B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the trial.
C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
D.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public or a section of the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
E.The parties’ lawyers’ attention is drawn to rule 12.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 which provides that, in certain circumstances, the Court may, on its own initiative, make an order for costs against a lawyer, including that the lawyer not charge the client for certain work or that the lawyer repay money that the client has already paid towards those costs.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Bijarniya & Mahawal has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRUM J:
INTRODUCTION
An Application in a Proceeding filed by Ms Bijarniya on 23 August 2022 was first returnable before me this day. The respondent, Mr Mahawal, has not yet filed a Response thereto. The orders sought in that application have, as their genesis, a decree of nullity which a Judicial Registrar of this Court purported to make, by consent, on 7 February 2022.
Upon perusing the Court file, it became apparent to me that there were several difficulties associated with the decree of nullity, first and foremost, that the decree appeared to have been made ultra vires the delegated powers of the Judicial Registrar.
Both parties were represented by counsel, with whom I raised this issue. I indicated that I would give the parties a few weeks to consider the issues but that, in circumstances where the validity of the decree of nullity was in doubt, I was reluctant to let it stand without prompt resolution. Issues of jurisdiction and power of courts must be promptly resolved: cf R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 202.
The matter was stood down briefly and, when it resumed, counsel for the parties informed me that they did not wish to make submissions in opposition to the decree of nullity being set aside. However, given the nature of the matter, I think it important to given short written reasons explaining the concerns I had in relation to the decree of nullity.
APPLICATIONS, PAST AND PRESENT
On 28 March 2021, Mr Mahawal filed an Application for Divorce.
On 26 September 2021, Ms Bijarniya filed a Response to an Application for Divorce seeking that the divorce application be dismissed on the ground that the marriage was null and void, as Mr Mahawal was allegedly married at the time of the parties’ marriage, such that a decree of nullity should be made.
On 8 December 2021, Ms Bijarniya filed an Initiating Application seeking a “declaration [sic]” that the parties’ marriage was “null and void [sic]”. That application was supported by an affidavit of Ms Bijarniya.
No Response to Initiating Application was filed by Mr Mahawal. However, on 20 December 2021, he filed an affidavit in response to that of Ms Bijarniya.
On 7 February 2022, the Judicial Registrar purported to make a declaration by consent that the parties’ marriage was null and void and dismissed Mr Ghuman’s Application for Divorce. Both parties were represented by solicitors that day.
On 23 August 2022, Ms Bijarniya filed an Application in a Proceeding seeking orders that:
1.The Applicant be allowed to disclose documents below pertaining to Family Law proceedings in the matter of MLC3413/2021 between [Ms Bijarniya] and [Mr Mahawal] before the Federal Circuit and Family Court of Australia to the relevant prosecuting authority to consider laying a charge of bigamy and to the Department of Home Affairs to make a report concerning the Respondent’s Australian immigration:
A.Affidavit of the Applicant filed 8 December 2021 in the above proceedings;
B.Affidavit of the Respondent filed 4 February 2022 in the above proceedings; and
C.The final Court Order made on 7 February 2022 by [the Judicial Registrar].
2.The Applicant be allowed to provide the final court order made on 7 February 2022 by [the Judicial Registrar] in the matter of MLC3413/2021 between [Ms Bijarniya] and [Mr Mahawal] before the Federal Circuit and Family Court of Australia, to Births, Deaths and Marriages Victoria.
That is the application that was listed before me this day.
BACKGROUND
Mr Mahawal was born in Country B in 1981 and he is currently 41 years of age. Ms Bijarniya was born in Country B in 1983 and she is currently 38 years of age. The parties immigrated to Australia separately, where they met in 2015.
They were married in 2016 in Melbourne and they separated on 28 July 2018.
A copy of the parties’ Australian marriage certificate was filed in the Court on 28 March 2021, together with Mr Mahawal’s Application for Divorce.
PRIMARY ISSUE
Ms Bijarniya deposes at [33] of her affidavit filed 26 September 2021:
One day, I was using our laptop and I came across a document, a death certificate of a women [sic] named [Ms C] who resided at [Mr Mahawal’s] home in [Country B] at [D Street, City E]. The death certificate showed that [Ms C] died [in] 2016 and the certificate was issued [in late] 2016. After reviewing the death certificate carefully, I realised [Mr Mahawal] was stated as the women’s [sic] husband. The death certificate is annexed to [Ms Bijarniya]’s affidavit.
Ms Bijarniya deposes that the address specified in the death certificate, as being that at which the death occurred, is the address in Country B where Mr Mahawal’s parents reside and which is specified in the Country B passports of Mr Mahawal and his mother as being their address there.
Ms Bijarniya further deposes that the parties’ marriage certificate describes Mr Mahawal as being “never validly married” and that, prior to their marriage (and until receipt of Ms C's death certificate) she was not aware of his earlier marriage.
She also deposes to having sighted, and exhibits to her affidavit, photographs purportedly of Mr Mahawal’s wedding to Ms C.
In Mr Mahawal’s affidavit, he deposes that he married Ms C in 2006 in Country B; that it was an “arranged and forced” marriage; that the marriage was never consummated; that he never considered her his wife; and (most relevantly) that, whilst a traditional cultural wedding ceremony was held, the marriage was never validly registered, such that he held the view that it was not valid or recognised in Australia. His affidavit is silent as to whether the wedding ceremony Ms C and he underwent is valid or legally recognised in Country B.
In conclusion, Mr Mahawal submitted that Ms Bijarniya’s and his marriage was valid and sought that his Application for Divorce be granted.
Nevertheless, for reasons which are not apparent, on 7 February 2022, represented by his solicitor (who remains on the record), he purported to consent to the decree of nullity, notwithstanding his evidence (which evidence, as to the legal status of his wedding ceremony in Country B, may or may not have been correct), which the Judicial Registrar proceeded to make.
RELEVANT STATUTORY PROVISIONS
Section 51 of the Family Law Act 1975 (Cth) (“the Family Law Act”) provides that:
An application under this Act for a decree of nullity of marriage shall be based on the ground that the marriage is void.
Section 23B(1)(a) of the Marriage Act 1961 (Cth) (“the Marriage Act”) relevantly provides that:
(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; …
Whether Mr Mahawal was, at the time of his marriage to Ms Bijarniya, lawfully married to Ms C, falls to be determined, in the first instance, pursuant to Pt VA of the Marriage Act, the object of which is to give effect to Chapter II of the Convention on Celebration and Recognition of the Validity of Marriages signed at The Hague on 14 March 1978: s 88A.
Section 88C(1)(a) of the Marriage Act provides:
(1)This Part applies to and in relation to every marriage solemnised, whether before or after the commencement of this Part, in a foreign country where:
(a)under the local law, the marriage was, at the time when it was solemnised, recognised as valid; …
Section 88D(1) of the Marriage Act provides that, subject to that section, a marriage to which Pt VA applies shall be recognised in Australia as valid.
At issue, therefore, is whether the marriage solemnised between Mr Mahawal and Ms C in Country B was, at the time it was solemnised there on or about early 2006, recognised as valid under Country B law.
Section 88F of the Marriage Act provides that:
Notwithstanding any other law, the question whether a marriage solemnised in a foreign country is to be recognised in Australia as valid shall be determined in accordance with the provisions of this Part, whether or not the determination of the question is incidental to the determination of another question.
Lastly, s 88G(1) of the Marriage Act provides that:
(1)A document purporting to be either the original or a certified copy of a certificate, entry or record of a marriage alleged to have been solemnised in, or under the law of, a foreign country and purporting to have been issued by:
(a)in the case of a marriage alleged to have been solemnised in a foreign country—an authority of that country or of that part of the country in which the marriage was allegedly solemnised; or
(b)in the case of a marriage alleged to have been solemnised under the law of a foreign country—an authority of that country;
is, for all purposes, prima facie evidence of the facts stated in the document and of the validity of the marriage to which the document relates.
Section 98(1) the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) provides that:
(1)The Chief Justice may make Rules of Court delegating any of the powers of the Federal Circuit and Family Court of Australia (Division 1) to a delegate or a prescribed class of delegate.
Section 98(2) specifies the kinds of powers of Division 1 of the Federal Circuit and Family Court of Australia that may be delegated, including in par (q) “the power to make an order the terms of which have been agreed upon by all the parties to the proceedings”.
Item 2.1 of Sch 4 to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 provides that power “to make an order the terms of which have been agreed on by all parties to the proceedings” is delegated to Senior Judicial Registrars and Judicial Registrars.
Importantly, however s 98(3)(b) of the FCFCOA Act provides that:
Powers that may not be delegated
(3)Despite subsection (1), the powers of the Federal Circuit and Family Court of Australia (Division 1) that the Rules of Court may not delegate are the following:
…
(b) the power to make a decree of nullity of marriage; …
In the circumstances, the Judicial Registrar did not have delegated power to make a decree of nullity of marriage and should not have done so. The decree was ultra vires and cannot stand. No contrary argument having been (or sought to be) made, it will be set aside.
However, that is not the end of the matter.
DECREES OF NULLITY BY CONSENT?
Section 4(1) of the Family Law Act defines a “decree” as meaning a “decree, judgment or order”. However, notwithstanding the term “decree of nullity of marriage” in s 51 of that Act, it is more akin to a declaration that a marriage is void, in that it is a judicial decision in relation to the rights or status of the parties.
In Starr v George [2019] NSWSC 60 at [6]-[7], Henry J said:
6.It is not the practice of this Court to make declarations by consent without a hearing on the merits or in the absence of any facts which support the grant of a declaration: George Zoltan Ajkay v Hickey & Co Pty Limited [2011] NSWSC 822 at [7]; Bokhari v Bokhari [2014] NSWSC 1474 at [7]; HOOSH Inc (Haberfield out of school hours) v State of New South Wales [2017] NSWSC 379 at [7].
7.I am however prepared to do so in this case having regard to the evidence which the parties put before me and rely on in support of the declaration.
In Hest Pty Ltd v Sweetman Renewables Ltd [2022] FCA 337 at [3]-[6], Lee J said:
3.… In Williams v Powell [1894] WN (Eng) 141, Kekewich J noted that a declaration was a judicial act and ought not to be made merely on admissions of counsel or by consent, but only if the court was satisfied by evidence.
4.The circumstances in which it is appropriate for the Court to exercise the power it has under s 21(1) of the Federal Court of Australia Act 1976 (Cth) to make binding declarations of right in civil proceedings, and the origins of that power, were traced by the Full Court in Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378 (see 381-385 [9]-[21] per Greenwood, Logan and Yates JJ). That judgment addressed the question of whether the Court was prevented from granting proposed declaratory relief when it had the consent of both parties, on the basis that there was no proper contradictor. It is well established, both in the United Kingdom and in this country, that a declaration usually cannot be made in the absence of a contradictor. This was considered by the High Court in Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421, in which Gibbs J observed (at 437-438) that a requirement for there to be a contradictor should “in general” be satisfied before the discretion is exercised. But as Bromwich J observed in Geneva Laboratories Limited v Prestige Premium Deals Pty Ltd (No 4) [2016] FCA 867; (2016) 120 IPR 133 (at 148-149 [79]-[83]), the requirement that there be a contradictor is not as onerous as it may at first appear.
5.As the Full Court explained in MSY Technology (at 382 [14]), there is a difference between having an interest to oppose the granting of declaratory relief and, having that interest, choosing whether or not to oppose the granting of that relief. The requirement for there to be a contradictor is met if there is a party before the Court, who has an interest to oppose the declaratory relief sought. This proceeding was regularly commenced by joining all necessary parties. It is clear that there are persons before the Court, in particular, the company and the existing directors who were the subject of the resolution at the meeting, who would have an interest to oppose the relief but, for reasons that will become obvious, have decided that there is no basis to oppose the relief. Of course, once the requirement of a contradictor is met, which I consider is met in this case, two further questions arise.
6.The first is whether the discretion to grant declaratory relief should be exercised in all the circumstances of the case; in particular, whether the Court is satisfied that there is some utility in making the declaration sought - a concept that is foundational to the granting of declaratory relief. The second is the distinct question of whether the Court, in granting the declaration, is licitly exercising Chapter III judicial power, which is dependent upon the existence of a “matter” (to use that word in its constitutional sense); that is, a justiciable controversy in respect of rights, duties, liabilities or obligations. As French J observed in IMF (Australia) Ltd v Sons Of Gwalia Ltd (Administrator Appointed) ACN 008 994 287 [2004] FCA 1390; (2004) 211 ALR 231 (at 243 [43]): “the availability of declaratory relief is confined by the boundaries of judicial power”.
By reason of my conclusion that the decree of nullity made by the Judicial Registrar was ultra vires, I do not presently need to determine this further issue at this stage. However, by reason of the combined operation of s 51 of the Family Law Act, which provides that an application for a decree of nullity of marriage shall be based on the ground that the marriage is void, and s 23B(1)(a) of the Marriage Act, which provides that a marriage is void where either of the parties is, at the time of the marriage, lawfully married to some other person, that ground must be established by evidence (as to which, see s 88G of the Marriage Act). To hold otherwise would be akin, for example, to making a divorce order without a marriage certificate or similar proof of the marriage sought to be dissolved.
In the present case, the only evidence adduced by Ms Bijarniya is the death certificate of Ms C which names Mr Mahawal as her husband. The photos do not advance the matter. The statement in the death certificate is not proof of their marriage; it is hearsay. Mr Mahawal’s evidence is that Ms C and he underwent a traditional cultural wedding ceremony which, he asserts, was never validly registered in Country B. As I have observed above, there is no evidence before me of the legal status, if any, in Country B of a traditional marriage ceremony which is not registered there.
If Ms Bijarniya wishes to pursue her application for a decree of nullity, I must be satisfied of the ground. She will need to produce a marriage certificate or adduce some expert evidence that the marriage of Mr Mahawal and Ms C was recognised as a valid marriage in Country B. If Mr Mahawal wishes to contest that application, he will need to adduce some expert evidence in support of his contention that an unregistered traditional cultural wedding ceremony is not recognised as a valid marriage in Country B (as well as file a Response to Initiating Application filed by Ms Bijarniya seeking a decree of nullity).
A FURTHER MATTER
When the divorce and nullity applications came before the Judicial Registrar, Mr Mahawal’s evidence was that he denied that, at the time of his marriage to Ms Bijarniya, he was lawfully married to Ms C. However, if, contrary to that evidence, he was lawfully married to Ms C, prima facie he committed an offence under Australian law by marrying Ms Bijarniya.
Section 94(1)-(1A) of the Marriage Act provides:
(1)A person who is married shall not go through a form or ceremony of marriage with any person.
Penalty:Imprisonment for 5 years.
(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 or ceremony took place.
There is no transcript of hearings before Judicial Registrars. I do not know how or why Mr Mahawal, who denied on his oath the validity of his marriage to Ms C, came to purportedly consent to the decree of nullity. I note that he was represented by a solicitor that day, who was also the solicitor who drew his affidavit and who remains his solicitor on the record.
By her Application in a Proceeding, Ms Bijarniya now seeks leave, inter alia, to disclose the parties’ respective affidavits and the decree of nullity made by the Judicial Registrar “to the relevant prosecuting authority to consider laying a charge of bigamy and to the Department of Home Affairs to make a report concerning [Mr Mahawal’s] Australian immigration”. The determination of that application must await the rehearing of Ms Bijarniya’s nullity application.
However, s 132 of the Evidence Act 1995 (Cth) provides:
If it appears to the court that a witness or a party may have grounds for making an application or objection under a provision of this Part, the court must satisfy itself (if there is a jury, in the absence of the jury) that the witness or party is aware of the effect of that provision.
Section 128 relevantly provides, inter alia:
(1)This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:
(a)has committed an offence against or arising under an Australian law or a law of a foreign country; or
(b)is liable to a civil penalty.
(2)The court must determine whether or not there are reasonable grounds for the objection.
(3)Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness:
(a)that the witness need not give the evidence unless required by the court to do so under subsection (4); and
(b)that the court will give a certificate under this section if:
(i)the witness willingly gives the evidence without being required to do so under subsection (4); or
(ii)the witness gives the evidence after being required to do so under subsection (4); and
(c) of the effect of such a certificate.
(4)The court may require the witness to give the evidence if the court is satisfied that:
(a)the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and
(b)the interests of justice require that the witness give the evidence.
(5)If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence.
In LGM v CAM (2011) FLC 93-481, the Full Court considered the operation of ss 128 and 132. In relation to s 128, the plurality said at [139]:
139.As can be seen from the terms of the section, it is only enlivened when a witness objects to giving particular evidence. It is not necessary for a witness to “object” in terms (see Ollis v Melissari [2005] NSWSC 1016 per Campbell J).
In relation to s 132, the plurality said at [140]:
140.Section 132 of the Evidence Act imposes an active obligation on a trial judge to be alert to circumstances in which an objection to giving the evidence might arise.
The plurality continued at [143] - [146]:
143.It is helpful to consider the nature and something of the history of the privilege against self incrimination. In Reid v Howard (1995) 184 CLR 1 at [5] Deane J said citing R v Sorby [1983] HCA 10; (1983) 152 CLR 281 (citations omitted):
“The privilege against self-incrimination is deeply ingrained in the common law”. It reflects “a cardinal principle” which lies at the heart of the administration of the criminal law in this country. It can be, and has increasingly been, overridden or modified by the legislature. It can be waived by the person entitled to claim it. Otherwise, it is unqualified. In particular, it should not be modified by judicially devised exceptions or qualifications. Unless it appears that the assertion of potential incrimination is unsustainable, a claim to the benefit of the privilege cannot, in the absence of statutory warrant, properly be disregarded or overridden by the courts.
144.In Song v Ying [2010] NSWCA 237, Hodgson JA (with whom Giles and Basten JJA agreed) said:
19.Under s 12 of the Evidence Act, except as otherwise provided in the Act, a person who is competent to give evidence is also compellable to give it. That compulsion can be exercised by use of subpoenas to get witnesses to court and into the witness box; and refusal to answer questions which a witness is compellable to answer (whether in chief or in cross-examination) can result in imprisonment.
145. Further his Honour said:
26.In my opinion, it is appropriate to construe s 128 against a background of the common law, where privilege against self-incrimination was relevantly a privilege against being compelled to give evidence that might tend to incriminate; and also against a statutory framework in which witnesses are generally compellable to give evidence...
146.In Ross v Internet Wines Pty Ltd [2004] NSWCA 195 Spigelman CJ Giles and McColl JJA said:
90....Depending on the circumstances, tendency to expose to self-incrimination may be obvious or sufficiently discernible. As was said by Clarke JA in Accident Insurance Mutual Holding Ltd v McFadden (1993) 31 NSWLR 412 at 430 –
“Whether the answer may tend to incriminate the witness is a point which the court will determine, under all the circumstances of the case, as soon as the protection is claimed. It will do so without requiring the witness fully to explain how the effect would be produced, for if this were necessary, the protection which the rule is designed to afford to the witness would at once be annihilated: Taylor, (at 1247)...
... In all cases of this kind the court must see, from the surrounding circumstances, and the nature of the evidence which the witness is called to give, that reasonable grounds exist for apprehending danger to the witness from his being compelled to answer. When, however, the fact of such danger is once made to appear, considerable latitude should be allowed to the witness in judging for himself of the effect of any particular question; for it is obvious that a question, though at first sight apparently innocent, may, by affording a link in a chain of evidence, become the means of bringing home an offence to the party answering. On the whole, as Lord Hardwicke once observed, ‘these objections to answering should be held to very strict rules’. Vaillant v Dodemead, [1743] EngR 41; 2 Atk 524”
Whilst it is unclear whether evidence was given by Ms Bijarniya before the Judicial Registrar (although unlikely), and Mr Mahawal was represented before him by a solicitor, I am of the view that, even if the Judicial Registrar had jurisdiction to make a decree of nullity (which he manifestly did not), he should, at the very least, have proceeded with great caution before making such a decree by consent (if same were possible), given the criminal consequences which could flow from that admission.
CONCLUSION
In the circumstances, the decree of nullity having been made ultra vires, it is itself a nullity and must be set aside.
I will make procedural orders for the hearing and determination of Ms Bijarniya’s Initiating Application filed 8 December 2021; Mr Mahawal’s Application for Divorce filed on 28 March 2021; Ms Bijarniya's Response to the Application for Divorce filed on 26 September 2021; and her Application in a Proceeding filed on 23 August 2022.
Whilst I was informed from the bar table by counsel for Ms Bijarniya (and I observed) that she was (understandably) very distressed by the setting aside of the decree of nullity, that cannot be helped. The defect cannot be remedied. I was informed by counsel for Ms Bijarniya that, in the intervening period since the decree of nullity was made on 7 February 2022, she has become engaged on the basis that she was never previously married and not divorced, being matters of cultural importance to her fiancé and her and their families. Again, that is regrettable but unavoidable. I proposed to list the nullity and divorce applications before me as soon as possible, within the coming weeks. However, I was advised by counsel for Ms Bijarniya that it may take several months for the requisite evidence to be obtained by her from Country B. Accordingly, I have listed the applications for hearing before me on 16 March 2023, that being the earliest time by which both parties estimated the matter will be ready.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 7 September 2021
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