Ceballos and Ceballos (No. 2)

[2013] FamCA 973

FAMILY COURT OF AUSTRALIA

CEBALLOS & CEBALLOS (NO. 2) [2013] FamCA 973

FAMILY LAW – PRACTICE AND PROCEDURE – Whether the husband should be referred to the Commonwealth Attorney-General following a declaration of nullity on the grounds of bigamy

Hiu & Ling [2010] FamCA 743

APPLICANT: Mr Ceballos

RESPONDENT: Ms Ceballos

FILE NUMBER: PAC 1946 of 2013

DATE DELIVERED: 13 December 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 4 December 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Michael Vassili Lawyers

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. 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 Ceballos & Ceballos (No. 2) 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 1946  of 2013

Mr Ceballos

Applicant

And

Ms Ceballos

Respondent

REASONS FOR JUDGMENT

The Proceedings

1. On 12 November 2013 the Court delivered reasons for Judgement ([2013] FamCA 879) in relation to the husband’s application for a declaration of nullity as to the marriage that took place in March 2000 to the Respondent.

2. The Court made a declaration that the said marriage is a nullity.

3. However, by reason of the matters disclosed in the husband’s application for the requisite declaration, the Court considers it appropriate to give to the Applicant the opportunity to adduce evidence and make submissions to the Court as to why the papers should not be referred to the Commonwealth Attorney-General for consideration as to the circumstances of the Applicant’s bigamist marriage.

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. In this case, the marriage certificate was before the Court as evidence in the Applicant’s nullity application, and in relation to the certificate, the Court observed in its earlier Judgment in respect of the nullity at [7]:

   Surprisingly the marriage certificate evidences the conjugal status of the applicant at the time of this marriage as “never validly married”. That assertion by the applicant in the registration particulars of this marriage was clearly false.

6. In his further affidavit, which was filed 2 December 2013 and relied upon, the Applicant asserts that he has no recollection of ever indicating to anyone that he had never been married before. He asserts several conversations with the Respondent to the nullity application where he indicated he had been previously married.

7. He denies any recollection of assertions as to his status described on the relevant marriage certificate.

8. He says that at the time of the marriage ceremony he honestly believed that his first wife had attended to the application and that the divorce order was still in effect. He says that when he became aware that he was still married to his first wife he was shocked and embarrassed.

9. Subsequent to this knowledge coming to his attention he asserts that in July 2011 he voluntarily provided statements to the New South Wales police and attended Sydney Suburb D Police Station and offered to be interviewed at that time.

10. During the course of submissions in relation to the present application it was conceded that the Applicant was never interviewed by the police, nor is there available, any police record of his attendance at Sydney Suburb D police station.

11. The Applicant’s earlier marriage took place in December in 1994 and he and his former wife separated in about 1997. He says that in 1999 he contacted his then wife and informed her of his proposal to remarry with that marriage ultimately taking place in March 2000. He says that his former wife said that she was dealing with the divorce application and the filing fees at that time and it would be “all over and done very soon”.

12. Regrettably, the Applicant made no further enquiry in circumstances where his former wife’s whereabouts appear to have been clearly known to him. He was under an obligation to ensure that at the time of his remarriage in March 2000 he was legally able to do so.

13. His conduct was, at best, reckless in the extreme and, at worst, a complete and wilful disregard of his obligations at the time of his remarriage to ensure that he was legally able to enter into the ceremony.

14. 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 I request the Registrar to do so.

15. I direct that the following documents be referred to the appropriate authorities for consideration:

    a)Initiating Application filed 9 May 2013;

    b)Affidavit of the husband filed 9 May 2013;

    c)Affidavit of the husband filed 2 December 2013;

    d)Reasons for Judgment delivered 12 November 2013; and

    e)A copy of these Reasons for Judgment.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 13 December 2013.

Legal Associate:      

Date:    13 December 2013