CHHIBBER & KUDVA

[2014] FamCA 499

FAMILY COURT OF AUSTRALIA

CHHIBBER & KUDVA [2014] FamCA 499

FAMILY LAW – NULLITY – Bigamy – applicant legally married at the time of marriage to the respondent – where a divorce had been granted but had not yet become final – marriage declared null and void – consideration of whether applicant requires a certificate pursuant to s 128 of the Evidence Act 1975 (Cth) – whether the matter should be referred to the Australian Federal Police – papers referred to the Chief Justice for referral to the appropriate authority – where the applicant has been interviewed by a media program – consideration of whether there has been a breach of s 121 of the Family Law Act 1975 (Cth).

Evidence Act 1995 (Cth)
Family Law Rules 2004 (Cth)
Marriage Act 1961 (Cth) s 94

T & T (1984) FLC 91-588

APPLICANT: Mr Kudva

RESPONDENT: Ms Chhibber

FILE NUMBER: MLC 5238 of 2013

DATE DELIVERED: 9 May 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 9 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Henwood

SOLICITOR FOR THE APPLICANT: Andrew P Melville

COUNSEL FOR THE RESPONDENT: Ms Barclay (duty lawyer)

SOLICITOR FOR THE RESPONDENT: N/A

Orders

IT IS ORDERED THAT

1. The marriage solemnised at Melbourne on … July 2011 between MR KUDVA and MS CHHIBBER is declared to be absolutely null and void.

2. A sealed copy of these orders, a certified copy of the reasons for judgment delivered this day, a sealed copy of the applicant’s initiating application filed 28 March 2014, the applicant’s affidavit in support thereof filed 28 March 2014, the respondent’s response to initiating application filed 6 May 2014 and the respondent’s affidavit in support thereof filed 6 May 2014, and any other documents which may be considered relevant be referred to the Chambers of the Chief Justice of the Family Court of Australia for referral to the appropriate authorities of the Commonwealth of Australia for consideration of prosecution of the applicant for a breach of s 94 of the Marriage Act 1961 (Cth).

3. By 4.00 pm on 16 May 2014 the respondent deliver to the subpoena clerk of this Court a copy of the Media Program K interview with the applicant.

4. The matter be adjourned for mention before Justice Macmillan at 9.00 am on 27 May 2014.

5. The respondent’s application for a change of the child’s name be otherwise transferred to the Federal Circuit Court.

IT IS CERTIFIED THAT

Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chhibber & Kudva 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 MELBOURNE

FILE NUMBER: MLC 5238 of 2013

Mr Kudva

Applicant

And

Ms Chhibber

Respondent

REASONS FOR JUDGMENT

1. The application in this case is for a Decree of Nullity.  The ground relied upon by the applicant in this case is bigamy.  The applicant in this case says that at the time of entering into the marriage, he was still married to another person. 

2. The applicant who is 41 years of age and the respondent who is 37 years of age commenced their relationship in or about November 2010 and were married in Melbourne on … July 2011.  There is one child of their relationship who is two years of age and lives with the respondent.  The applicant and the respondent separated in or about April 2013.

3. The applicant deposes that early in his relationship with the respondent he advised her that he was married to one Ms L and that he would need to obtain a divorce before he and the respondent could marry.  It is his evidence that he and Ms L married in May 2010 separating approximately nine days later following which Ms L left Australia. 

4. The applicant says that he applied for a divorce which was heard in the Federal Magistrates Court of Australia, as it then was, two days before his marriage in July 2011 and that both he and the respondent were present when the divorce order was made.  He says that he and the respondent had made arrangements to marry the following Saturday, that they both attended upon the marriage celebrant and he says that, although he cannot remember what he produced, he produced the documentation requested by the marriage celebrant in anticipation of their marriage.  Not only does the applicant say that the respondent was aware of and present at the hearing of his application for divorce but that her parents, who had travelled from India for the wedding, waited for he and the respondent in the car park during that hearing.

5. Although the respondent disputes the applicant’s evidence in relation to both her knowledge of his previous marriage and the application for divorce – in fact, she denies being present at the hearing of that application for divorce – what is not in dispute is that the applicant was still legally married to Ms L at the time he married the respondent. 

6. At the commencement of the hearing I raised with counsel for the applicant whether there were grounds for the applicant to make an application for a certificate pursuant to s 128 of the Evidence Act 1995 (Cth) and was advised that, in all of the circumstances of this case, no certificate was sought. In any event, the divorce order was made two days before his marriage in July 2011 and that order and the certificate of marriage speak for themselves.

7. Section 23(1)(a) of the Marriage Act 1961 (Cth) (‘the Marriage Act’) provides that a marriage is void if either of the parties to that marriage was, at the time of the marriage, lawfully married to some other person. I am satisfied on the basis of the evidence before me that as at the date of his marriage to the respondent the applicant was legally married, that marriage having taken place in May 2010, and the divorce order made two days before his marriage in July 2011 not having taken effect until one month later in August 2011. On that basis, I propose to grant the decree of nullity.

8. The respondent in her affidavit alleges that at the time of his marriage to Ms L he had not obtained a divorce from his first wife. It is not necessary for me to make findings in relation to these allegations for the purposes of the application before me and I note that the applicant has not had the opportunity to respond to the affidavit filed by the respondent nor has that evidence been tested. It is an offence pursuant to s 94 of the Marriage Act for a person who is married to go through a form of ceremony of marriage with another person.

9. In T & T (1984) FLC 91-588 the Full Court said at [79746] as follows:

   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.

10. Although I am entitled to refer this matter to the appropriate authorities if I consider it appropriate to do so, I am not required to do so in every case and must have regard in each case to the seriousness of the possible offence and the particular facts and circumstances of that offence in each case.

11. Bigamy is a serious offence punishable by a sentence of up to five years imprisonment.  The circumstances in this case, however, are somewhat unusual given that the respondent has already referred the matter to the Australian Federal Police, although as at the date upon which the applicant swore his affidavit he had not been contacted by the Australian Federal Police.  The respondent deposes that the documents she has provided to the Australian Federal Police include the affidavit sworn by Ms L on 14 September 2013 with respect to her marriage which is annexed to the respondent’s affidavit.

12. The respondent has also brought this matter to the attention of Media Program K, as a result of which the applicant deposes he was interviewed without any notice outside his home by a journalist associated with that program and that, when the program went to air, he was clearly identifiable. 

13. The tenor of the applicant’s evidence is that he did not appreciate that he was not free to remarry however there are many aspects of his evidence which are disputed by the respondent.  Whilst this does not alter the fact that the marriage is void it is a relevant matter for the purposes of my decision as to whether I should refer this matter to the authorities.

14. Although the respondent acknowledges that she has brought this matter to the attention of the Australian Federal Police, and although no action appears to have been taken by the Australian Federal Police at this stage, I am satisfied that it is still appropriate in all of the circumstances of this case to nonetheless refer the matter to the appropriate authorities for consideration.  It does not necessarily mean that the Australian Federal Police will take any steps to investigate the matter or that the applicant will be prosecuted.  That ultimately is a matter for the authorities and not a decision for me.

15. Bigamy is a strict liability offence however the fact that the applicant may not have understood the ramifications of the divorce order and that it would become effective one month from the date upon which it was made would certainly be relevant matters for the purposes of any penalty that might be imposed. 

16. In her response to the applicant’s application the respondent sought an order that she be permitted to change the child of the relationship’s surname to her maiden name. As I have previously mentioned, the applicant has not had the opportunity to respond to the material filed on behalf of the respondent in relation to this issue and, as this matter was previously before the Federal Circuit Court, both parties agree that I should transfer the matter to that Court.

17. Finally, as previously discussed, the applicant deposes that he was the subject of an interview put to air by Media Program K. Although the respondent has instructed Ms Barclay that the program made no mention of the proceedings, not having seen the program it is difficult for me to draw any conclusions as to whether there may have been a breach of s 121 of the Family Law Act 1975 (Cth) (‘the Act’). If there had been such a breach it would be a serious matter and in all of the circumstances I consider that the appropriate course to adopt is for me to adjourn the matter for mention before me and to require the respondent to produce a copy of the program in question.

18. I will otherwise reserve the question of whether I should or should not refer the matter to the authorities with respect to any breach of s 121 of the Act until I have had the opportunity to view that program.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 9 May 2014.

Associate: 

Date:  11 July 2014