Bijarniya & Mahawal

Case [2022] FedCFamC1F 675

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…

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AGLC
Bijarniya & Mahawal [2022] FedCFamC1F 675
Case
[2022] FedCFamC1F 675
Decision Date

CaseChat Overview and Summary

Bijarniya & Mahawal involved a dispute between Mr Mahawal and Ms Bijarniya regarding the validity of their marriage and the subsequent proceedings for divorce and a decree of nullity. The case was heard before a judicial officer in the Family Court of Australia. The primary issue revolved around whether Mr Mahawal was still legally married to another woman, Ms C, at the time of his marriage to Ms Bijarniya. Ms Bijarniya discovered a death certificate indicating that Mr Mahawal was listed as Ms C's husband, leading her to question the validity of her marriage to Mr Mahawal.

The legal issues before the court included whether the Judicial Registrar had the authority to make a decree of nullity by consent and whether such a decree could be validly made without establishing the grounds for nullity. The court also considered the implications of Mr Mahawal consenting to a decree of nullity, including the potential criminal consequences of admitting to bigamy. The court found that the decree of nullity was made without proper jurisdiction and was therefore void. The Judicial Registrar did not have the authority to make a decree of nullity by consent, and the ground of nullity must be established through proper evidence and proceedings.

The court set aside the decree of nullity, reinstated Mr Mahawal's application for divorce, and outlined procedural orders for the upcoming hearing. The court emphasised the importance of ensuring that any consent to a decree of nullity is informed and voluntary, with the parties aware of the potential legal consequences. The case was adjourned to allow both parties to gather the necessary evidence, with a hearing date set for 16 March 2023. The court also issued specific directions for the filing and service of further affidavits and documents by the parties.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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