Forman & Calhoun
[2024] FedCFamC2F 1230
•6 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Forman & Calhoun [2024] FedCFamC2F 1230
File number(s): MLC 10747 of 2023 Judgment of: JUDGE A. HUMPHREYS Date of judgment: 6 September 2024 Catchwords: FAMILY LAW – DIVORCE – husband’s application for divorce in relation to an overseas marriage – respondent wife opposes application for divorce asserting the marriage the subject of the husband’s amended application was to a person other than her – court satisfied the respondent wife was a party to the marriage the subject of the amended divorce application – application for divorce granted – court satisfied proper arrangements have been made for the care, welfare and development of the child of the marriage – divorce order made, to take effect after the expiration of a period of one month. Legislation: Evidence Act 1995 (Cth) ss. 91, 140
Family Law Act 1975 (Cth) ss. 39, 48, 55A, 102, 102NA
Marriage Act 1961 (Cth) ss. 23B, 88C, 88D, 88G
Cases cited: Blatch v Archer (1774) 1 Cowp 63; 98 ER 969
Henry & Henry (1996) 185 CLR 571; FLC 92–685
Keene & King [2011] FMCAfam 1117
Kuhl v Zurich Financial Services AustraliaPty Ltd (2011) 243 CLR 361; [2011] HCA 111
Lengyel v Rasad (No 2) (1990) FLC 92–154
Rahimi & Moradi [2023] FedCFamC1F 151
T & T (1984) FLC 91–588; [1984] FamCA 66
Wei & Xia (No 5) (2023) 67 Fam LR 421; [2023] FedCFamC1F 679
Division: Division 2 Family Law Number of paragraphs: 107 Date of hearing: 12 – 14; 16 August 2024 Place: Melbourne Counsel for the applicant: Mr Riordan Solicitor for the applicant: Hartleys Lawyers Representative for the respondent: Self-represented ORDERS
MLC 10747 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR FORMAN
Applicant
AND: MS B CALHOUN (ALSO KNOWN AS MS CALHOUN)
Respondent
ORDER MADE BY:
JUDGE A. HUMPHREYS
DATE OF ORDER:
6 SEPTEMBER 2024
THE COURT FINDS THAT:
1.The marriage of the parties, Mr Forman and Ms B Calhoun (also known as Ms Calhoun) in Country C in early 2014, is proved.
2.The applicant was at all material times domiciled in Australia.
3.The ground for the application for a divorce order, namely that the marriage has broken down irretrievably, is proved.
THE COURT ORDERS THAT:
4.A divorce order be made, to take effect on 7 October 2024, terminating the marriage from that date.
BY WAY OF ORDER, THE COURT DECLARES:
5.There is only one child of the marriage who has not attained the age of 18 years, being X born in 2015.
6.The court is satisfied proper arrangements in all the circumstances have been made for the care, welfare and development of that child.
THE COURT FURTHER ORDERS THAT:
7.All extant applications be dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE A. HUMPHREYS:
INTRODUCTION
The applicant, Mr Forman, seeks to be divorced from the respondent, Ms B Calhoun who he claims is also known as Ms Calhoun. I will refer to the parties as the husband and the wife.
The husband asserts he married Ms B Calhoun in Country C in early 2014 and he seeks a divorce order in respect of that marriage. The application is opposed by the wife. She contends she is Ms Calhoun, not Ms B Calhoun, and she did not marry the husband in early 2014.
The husband asserts there have been three marriages registered in Country C in respect of which the wife was a party:
(a)The “first marriage”, being a marriage in 2012, between Ms Calhoun and Mr D, as registered on the Marriage Register in Country C in 2013. In respect of this marriage, the husband asserts the wife adopted the identity of her cousin, Ms Calhoun, to marry the wife’s brother and support her migration to Australia. The wife admits the first marriage to Mr D, but denies he is her brother. The wife gave evidence a divorce was granted in respect of this marriage, some time before late 2014;
(b)The “second marriage”, being a marriage between the husband and Ms B Calhoun in early 2014, as registered on the marriage register in Country C in early 2014. This is the marriage in respect of which the husband seeks a divorce, by way of his amended application for divorce filed on 5 April 2024. The wife denies she is Ms B Calhoun and that she married the husband in early 2014. She asserts the husband married another person in early 2014; and
(c)The “third marriage”, being a marriage between the husband and Ms Calhoun in late 2014 recorded in the marriage register in Country C in late 2014. It is not disputed this marriage was recorded as a marriage of the parties. The husband asserts this marriage was registered to support his application to migrate to Australia and the wife used the name and identity of Ms Calhoun for that purpose. The wife asserts this is the only marriage between the parties and that it is invalid because the husband was at that time married to another person, Ms B Calhoun, by virtue of the second marriage. Notwithstanding their respective claims in relation to third marriage, neither party seeks a declaration of nullity in relation to that marriage.
The parties have one child of their marriage, X born in 2015, who is nine. X spends time with both parties on a week about basis pursuant to final parenting orders made in this court at Dandenong on 27 September 2023 (“final parenting orders”).[1] The parties were identified in that proceeding, including in the final parenting orders, as Ms Calhoun born in 1980 and Mr Forman born in 1991.
[1] In proceeding DCG1214/2023.
The wife does not dispute the husband was domiciled in Australia and ordinarily resident in Australia at the time his application for divorce was filed and for one year immediately preceding that date, meeting the jurisdictional requirements of section 39(3) of the Family Law Act 1975 (Cth) (“the Family Law Act”) for the divorce proceeding.
She does not dispute the parties separated on 2 July 2022 and had been living separately and apart for no less than 12 months at the time his application for divorce was filed on 18 September 2023.
The wife has been served with the application for divorce and amended application for divorce. She filed responses, opposing the initial application and the amended application, and has participated in these proceedings, acting on her own behalf.
The husband deposed there are ongoing proceedings in Country C in relation to divorce and family law.[2] Neither party otherwise adduced evidence in relation to the Country C proceedings. In an affidavit she sought to rely upon at the hearing on 12 August 2024, the wife did suggest the matters the subject of this proceeding might be better investigated in Country C. Leave was not granted to the wife to rely on that affidavit, but I did say to the wife I would hear any submissions she wished to make if she contended Australia was a clearly inappropriate forum for the determination of the husband’s divorce application. I provided her with a copy of the High Court’s decision in Henry & Henry (1996) 185 CLR 571 and outlined some of the considerations to be taken into account if she was to contend Australia is a clearly inappropriate forum for determination of the husband’s application for divorce. The wife did not seek a stay of the divorce proceeding or submit Australia was an inappropriate forum for the determination of the husband’s divorce application. She submitted only in her closing submissions that the application for divorce should be dismissed by this court, in which case the husband can apply for divorce in Country C where she said it would be easier for her to obtain evidence to disprove the allegations made by him. She specifically confirmed she was asking the court to dismiss the husband’s application.
[2] In an affidavit on 22 February 2024 (“the husband’s February affidavit”).
ISSUES TO BE DETERMINED
The issues for determination are therefore:
(a)Is the second marriage proved, being a marriage between the parties in early 2014 in respect of which the husband seeks a divorce?
This requires me to be satisfied of two things:
(i)Of the marriage that the husband asserts took place in early 2014 between him and Ms B Calhoun;
(ii)That the respondent wife, who identifies herself as Ms Calhoun is one and the same person as Ms B Calhoun, and that she was a party to the marriage with the husband in early 2014; and
(b)If I am satisfied of the parties’ marriage in early 2014 and determine a divorce order is to be made, am I satisfied proper arrangements been made for the care, welfare and development of the parties’ son, for the divorce order to take effect?
THE HEARING
The defended divorce hearing commenced on 12 August 2024 and was conducted over four days in circumstances which I will explain shortly.
This was the fourth occasion the matter had been before me following a compliance and readiness hearing before the Chief Judge on 1 March 2024. The husband was represented by counsel on each of those occasions. The wife attended at court acting on her own behalf at each hearing. She has been assisted by advice from duty lawyer services from time to time and a duty lawyer appeared on her behalf at a mention on 15 March 2024 and again briefly on the first morning of the defended hearing, on 12 August 2024. On each occasion the matter was before me, I encouraged the wife to seek legal advice, including from a community legal service if she was unable to secure representation funded by legal aid, and to attend at court early to avail herself of duty lawyer services.[3]
[3] Notations to orders made on 15 March, 1 May and 28 June 2024 reflect this.
The duty lawyer appearing for the wife at the mention on 15 March 2024 asked that an order be made pursuant to section 102NA of the Family Law Act prohibiting the parties from cross-examining one another personally and enabling the wife to seek legal representation under the Commonwealth Family Violence and Cross-Examination of Parties Scheme. However, it was not submitted the mandatory protections in section 102NA applied pursuant to any of sub-sections 102NA(1)(c)(i), (ii) or (iii) and the duty lawyer was unable to point me to any evidence to support the making of an order pursuant to sub-section 102NA(1)(c)(iv). The wife’s intention to make a further request for an order pursuant to section 102NA was recorded in a notation to the orders made that day, but she did not subsequently make such a request or adduce evidence to support the making of such an order.
The wife remained self-represented at the hearing of the divorce application. She cross-examined the husband personally and made submissions on her own behalf.
The wife has been assisted by interpreters at each of the hearings before me, sometimes by phone and sometimes in person. The husband’s oral evidence was given through an interpreter.
The defended divorce hearing was listed for one full day but ultimately proceeded over four days – commencing on 12 August 2024, continuing on 13 and 14 August 2024 and concluding on 16 August 2024. The hearing was significantly protracted to accommodate other cases listed for defended final hearings throughout the week; to enable the wife to obtain advice from a duty lawyer; owing to the time required for me to explain court processes, legal concepts and options available to the wife as a self-represented litigant through an interpreter; due to the availability (and unavailability) of various interpreters; technical difficulties accessing interpreters by phone; and the significant additional time required to allow for translation throughout the hearing. The matter was listed to a third day, on 14 August 2024, alongside other defended hearings, to conclude cross-examination of the wife and that was achieved. Closing submissions were then unable to be progressed that day as bad weather in Brisbane impacted the telephone interpreter’s phone connection. The connection cut out more than a dozen times in the morning and a working connection was unable to be established with the interpreter in the afternoon. Efforts to obtain the assistance of another interpreter were unsuccessful. Counsel for the husband suggested written closing submissions to avoid the hearing extending into a fourth day but I was concerned that would significantly disadvantage the wife who is self-represented and requires the assistance of an interpreter. Accordingly, the matter was listed on 16 August 2024 for oral closing submissions. I again thank the parties and the husband’s legal representatives for their patience and cooperation in progressing the matter throughout the week, particularly in dealing with the challenges experienced with interpreters.
DOCUMENTS RELIED UPON
In the absence of any objection by the parties, given the procedural history of this matter, the issues in dispute, and where the wife is self-represented, I permitted the parties to rely on each of the documents they had filed in these proceedings, including late-filed documents.
Accordingly, the husband relied upon:
(a)Application for divorce filed 8 September 2023;
(b)Amended application for divorce filed on 5 April 2024;
(c)His affidavits filed on 22 February 2024, 8 March 2024, 5 April 2024 and 5 June 2024 and the annexures to those affidavits which have been received as exhibits; and
(d)Tendered exhibits, including marriage records and documents produced by the Department of Home Affairs pursuant to subpoena.
The wife relied upon:
(a)Response to application for divorce filed on 30 October 2023;
(b)Response to amended application for divorce filed on 23 May 2024; and
(c)Her affidavits filed on 28 February 2024, 13 March 2024, 24 April 2024 and 21 May 2024[4] and the annexures to those affidavits which have been received as exhibits.
[4] Noting this affidavit appears a second time on the court file, marked as filed on 23 May 2024.
The wife was refused leave to rely on what purported to be an affidavit of Ms G made in Country C, dated 25 June 2024, stating Ms G married the husband in 2013. I gave oral reasons for this determination at the final hearing, which included that the application to rely on evidence from Ms G was made late (after the matter had already been before me on three occasions), the affidavit was not prepared in proper form and sworn or affirmed with an appropriate jurat, the proposed witness was not available to be cross-examined, and I was not persuaded of the relevance of the evidence sought to be adduced to the matter of the husband’s application for divorce in respect of the second marriage. The need for those matters to be addressed in support of any application to rely on evidence from Ms G had been flagged with the wife at a previous hearing on 28 June 2024, as was reflected in a notation to orders made that day.
THE LAW TO BE APPLIED
Divorce and nullity of marriage is governed by Part VI of the Family Law Act.
Section 48(1) of the Family Law Act provides that an application for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably. Sub-section 48(2) provides that this ground is established by the court being satisfied the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date on which the application for divorce was filed. Sub-section 48(3) provides a divorce order shall not be made if the court is satisfied there is a reasonable likelihood of cohabitation being resumed.
Pursuant to section 55A(1) of the Family Law Act, a divorce order does not take effect unless the court has made an order declaring that it is satisfied proper arrangements have been made for the care, welfare and development of any children who have not attained the age of 18 years or if the court is not satisfied such arrangements have been made, that there are circumstances by reason of which the divorce order should nevertheless take effect.
EVIDENCE / ONUS OF PROOF
Section 140 of the Evidence Act 1995 (Cth) (“Evidence Act”) provides as follows:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject‑matter of the proceeding; and
(c)the gravity of the matters alleged.
In Wei & Xia (No 5) (2023) 67 Fam LR 421; [2023] FedCFamC1F 679, Harper J helpfully explained some of the key evidentiary principles applying in this matter, by reference to legal authorities, as follows:
148. It is trite to observe that all parties bear the onus of establishing their case on the balance of probabilities (s 140 of the Evidence Act). Bowen LJ long ago observed in Abrath v North Eastern Railway Co (1883) 11 QBD 440 at [457]:
Wherever a person asserts affirmatively as part of his case that a certain state of facts is present or is absent ... that is an averment which he is bound to prove positively.
149. This statement of onus is deceptively simple. The concept of onus can be applied in various senses. Heydon J in Strong v Woolworths Ltd (2012) 246 CLR 182 (“Strong v Woolworths”) said at [44] that the appropriate material to support a discharge of onus of proof “could include direct evidence, evidence from which circumstantial inferences can be drawn, and the teachings of common experience”. His Honour then at [46]–[65] explained the operation of the concepts of the “persuasive” onus of proof and “evidential” burdens of proof and the different senses in which these expressions have been used. It is unnecessary to repeat this discussion at any length, except to distinguish three analytical categories for the Court as trier of fact. The first is whether the party with the legal or persuasive burden of proof, usually the applicant, has called sufficient evidence “to raise an issue as to the existence or non-existence of a fact in controversy” (Strong v Woolworths at [52]). Failure to do so leads to a conclusion that the burden of proof is not satisfied. The second situation is where a party, usually the applicant, calls evidence “sufficiently weighty to entitle, but not compel, a reasonable trier of fact to find in [that party’s] favour” (Strong v Woolworths at [53]), which then places a “provisional” or “tactical” burden on the opposing party, to call contradicting evidence or risk losing on the issue. The third situation is where the party bearing the persuasive burden adduces evidence so powerful is would compel a reasonable trier of fact to find in that party’s favour if the evidence is not answered (Strong v Woolworths at [54]).
150. In Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371 (“Hampton”), the High Court (per Dixon CJ) made clear that where the evidence relied upon by a party bearing the onus of proof does not itself clearly discharge the onus, the failure by that party to call or give evidence that could cast light on a matter in dispute is relevant to determining whether the onus is being discharged citing inter alia, Blatch v Archer (1774) 1 Cowp 63 (“Blatch v Archer”). In the frequently cited decision of Payne v Parker [1976] 1 NSWLR 191 at 201 (“Payne v Parker”), Glass JA, who cited Hampton, interpreted the principle in Blatch v Archer to mean “the direct evidence of the party with the onus of proof can be more readily accepted, and inferences in his favour may be more confidently drawn” if that party calls evidence which could cast light on a matter in dispute.
151. In Ho v Powell (2001) 51 NSWLR 572 (“Ho v Powell”), Hodgson JA (with whom Beazley JA and Davies AJA agreed) made the following comment about the civil standard of proof and the balance of probabilities:
14.There is a long-standing controversy whether the civil standard of proof requires a numerical probability in excess of 50 per cent (see Davies v. Taylor [1974] AC 207 at 219), or belief amounting to reasonable satisfaction (see Briginshaw v. Briginshaw (1938) 169 CLR 638 at 642-3). My own opinion is that the resolution of the controversy involves recognition that, in deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision. I discussed this in some detail in an article published at (1995) 69 ALJ 731…
15.In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so: cf. 69 ALJ at 732-3, 736, 740. As stated by Lord Mansfield in Blatch v. Archer (1774) 1 Cowp. 63 at 65; 98 ER 969 at 970: “[A]ll evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.”…
152. More recently, Gleeson J (as she then was) explained the subtleties of shifts in the onus of proof as between applicants and respondents. In BCI Finances Pty Ltd (in liq) v Binetter (No 4) (2016) 348 ALR 227, (affirmed on appeal in BCI Finances Pty Ltd (in liq) v Binetter (2018) 362 ALR 597), her Honour said:
122.Where a plaintiff has the onus of proving a matter, and “relevant facts are peculiarly in the knowledge of the defendant or where the defendant has the greater means to produce evidence relating to those facts”, then if the plaintiff provides sufficient evidence from which the matter may be inferred, “the defendant then comes under an evidential burden, or an onus of adducing evidence”: Krstic v Brindley [2006] NSWSC 1414 at [26].
123.Where a fact is peculiarly within the knowledge of a party to litigation, slight evidence of that fact may suffice to prove the fact unless that evidence is explained away by the party with the knowledge of the fact: Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 at 375; Tyco Australia Pty Ltd v Optus Networks Pty Ltd [2004] NSWCA 333 at [121]; Parker v Paton (1941) 41 SR (NSW) 237 at 243; Ex parte Ferguson; Re Alexander (1944) 45 SR (NSW) 64 at 67, 70.
124.A failure by respondents to deny or explain facts when it was in the respondents’ exclusive power to do so allows increased strength or weight to be given to primary facts favourable to the applicants and allows inferences favourable to the applicants to be more confidently drawn: United Group Resources Pty Ltd v Calabro (No 5) [2011] FCA 1408; (2011) 198 FCR 514 at [75]–[76]. The silence of a party may serve to resolve a doubt or an ambiguity regarding the existence of a fact, especially where the facts are peculiarly within the knowledge of the silent party: Transport Industries Insurance Co. Ltd v Longmuir [1997] 1 VR 125; (1996) 9 ANZ Insurance Cases 61-385 at 142.
125.All evidence “is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”: Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450 at [80], quoting Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970. This maxim also bears upon the appropriateness of deciding whether a fact has been proved when only limited evidence is available. In Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 at [14]–[15]…
153. These authorities highlight the importance of inferential reasoning in reaching a conclusion about proof generally and discharge of an onus of proof. Such reasoning has long been understood as a process that requires the application of general human experience to determine whether the hypothesis that is sought to be proved is a conclusion that can be drawn given the alternatives that reasonably may be suggested and the standard of proof required (Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163 at 173 (Knox CJ and Dixon J)).
His Honour continued to discuss these principles and in particular, the process of inferential reasoning and the Blatch v Archer principle from [154] to [165] of his reasons. In particular he explained at [161]:
So this understanding of the principle derived from Blatch v Archer would permit a Court to make an assessment of the overall weight of the evidence unfavourable to the party who has failed to call evidence which was in their power to call, and which could be expected to shed light on a matter in dispute, or, in other words, discount the evidence actually called.
I have read, listened to and considered all of the evidence adduced by the parties. If I have not mentioned a piece of evidence or an argument presented at the hearing that does not mean I have not considered it.
In assessing the evidence, I have applied the balance of probabilities as the standard of proof. In doing so, I have taken into account the nature of the application, relating to the significant matter of the parties’ marital status. I have also taken into account the gravity of the matters alleged by each of the parties, including the husband’s allegation the wife has engaged in fraudulent conduct, including by adopting the identity of her cousin, Ms Calhoun, for migration purposes and that she has lied to this court about her identity. I have also taken into account the gravity of the wife’s allegation that the husband has lied to this court by claiming she is Ms B Calhoun.
Each of the parties were informed of their right to object to giving evidence under cross-examination on the ground the evidence may tend to prove they have committed an offence or expose them to liability to a civil penalty and they were informed of the provisions of section 128 of the Evidence Act. The husband was given an opportunity to take legal advice about those matters from his counsel during the course of the defended hearing. The wife was informed of these matters at previous court events and again at the defended hearing. The duty lawyer who briefly appeared in court on behalf of the wife on the morning of 12 August 2024, was also asked to advise the wife in respect of those matters. Neither party raised an objection of this nature during the hearing.
Preliminary observations of parties’ evidence
I make some preliminary comments in relation to the parties’ evidence generally, before turning to consider the evidence more closely in respect of each of the issues requiring determination.
First, in relation to the husband’s evidence. If his case is accepted, he was complicit in registering the third marriage with the wife under a false name to support his immigration to Australia and he initially filed an application for divorce in respect of the third marriage without disclosing the second marriage. These matters alone cause me to consider his evidence carefully, looking to the supporting documents and photographs adduced by him to corroborate his evidence.
The wife adduced little evidence in support of her opposition to the husband’s application for divorce, save for her own evidence she is Ms Calhoun and her denial of the matters put by the husband. She did not adduce evidence in the form of documents or from witnesses to corroborate her own evidence that she is Ms Calhoun and not Ms B Calhoun. In relation to the evidence she did give, I find the wife was not a reliable or credible witness, even allowing for the difficulties of acting on a self-represented basis and that she was giving her evidence through an interpreter. She on numerous occasions demonstrated a reluctance to answer questions put to her and the answers she did give were frequently vague and non-responsive, particularly when asked questions about her familial relationships. I put little weight on the evidence of the wife in these circumstances.
BACKGROUND AND PROCEDURAL HISTORY
The husband was born in Country C in 1991.
The wife identifies herself as Ms Calhoun and deposes she was born in 1980 in Country C. Tendered marriage records documenting the first marriage[5] and the third marriage[6] record that Ms Calhoun was born in 1980, is from Town H, Region J, Country C, and her father is Mr K. The wife gave oral evidence confirming this. She did not otherwise provide evidence about her origins, background or family.
[5] Annexure MRF-3 to the husband’s affidavit filed on 22 February 2024. (Duplicated at Annexure MRF-3 to the husband’s affidavit filed on 8 March 2024 and Annexure MRF-5 to the husband’s affidavit filed on 5 June 2024).
[6] Annexure 2 to the wife’s affidavit filed on 28 February 2024 and Annexures MRF-1 and MRF-3 to the husband’s affidavit filed on 22 February 2024.
Tendered records purporting to document the second marriage[7] record that that Ms B Calhoun was born in Country C in 1987, her father is Mr F and she comes from Town H, Region J, Country C.
[7] Exhibit B and Exhibit C, copies of which were annexed to various affidavits of both parties.
In respect of the first marriage, it is not in dispute the wife married Mr D in 2012. What is in dispute is if Mr D is the wife’s brother and if she married him using the name and identity of her cousin, Ms Calhoun, as is asserted by the husband.
The only evidence given by the wife on affidavit in response to this claim was as follows:[8]
The applicant saying in previously affidavit I was married [Mr D] and [Ms Calhoun].
[…]
When I married with [Mr Forman] I provide divorce certificate [Mr D] and [Ms Calhoun]. I am not [Ms B Calhoun] he tell a lie.
[8] Paragraphs 10 and 26 of the wife’s affidavits filed on 24 April 2024 and 21 May 2024.
The husband tendered a copy of an extract from the Country C Marriage Register recording the first marriage (“the first marriage record”) and the family details of the parties to this marriage.[9] The wife did not challenge that record. When cross-examined, the wife confirmed the father of Mr D is Mr F as recorded on the first marriage record. She denied Mr D is her brother. She confirmed her evidence that she and Mr D are divorced but could not recall the date of the divorce, only that she was divorced before the third marriage in late 2014.
[9] As identified in footnote 4.
The wife migrated to Australia in or around early 2013.
In respect of the second marriage, the husband asserts that in early 2014, the parties married in Country C, the wife using her true name and identify, Ms B Calhoun. I will return to consider the evidence in relation to this marriage carefully, being the marriage the subject of the divorce application.
In relation to the third marriage, the husband deposed:[10]
… I say my marriage date is [early] 2014 with [Ms B Calhoun] and [late] 2014 there was no marriage that took place.
and:[11]
… I have only been married once to the respondent wife and I have provided the original marriage certificate dated [early] 2014.
…I confirm there are two marriage certificates. The [Country C] certificate was registered first but with the wife’s name as [Ms B Calhoun], whist the second [Country C] Register certificate was registered second and lists the wife’s name as [Ms Calhoun]. Both reflect my marriage to the same woman, known by two different names.
[10] At paragraph 18(c) of his affidavit filed on 5 June 2024.
[11] At paragraphs 18(o) and (p) of his affidavit filed on 5 June 2024.
Notwithstanding the husband’s evidence in respect of the third marriage, the wife deposed only:[12]
The applicant husband and I were married [in late] 2014 in [Country C].
Save for a copy of the marriage registration record, she adduced no further evidence in relation to the third marriage by way of affidavit or by tendering documents or photographs for example.
[12] At paragraph 4 of each of her affidavits.
The parties’ son, X, was born in 2015.
The husband migrated to Australia in early 2017, having been granted a partner (provisional) visa in early 2017.
In mid-2022, the parties’ visas were cancelled. The husband adduced evidence of a letter from the Department of Home Affairs addressed to him dated mid-2022 which advised:[13]
The ground for cancellation arose when [Ms Calhoun] provided incorrect information in her […] visa application and a number of incoming passenger cards and submitted bogus documents in support of her […] visa application and her visa was subsequently cancelled.
[13] Annexure MRF-9 to the husband’s affidavit filed on 5 June 2024.
The parties did not adduce evidence of their current visa status by way of affidavit. They both gave oral evidence that they are in Australia on bridging visas. I had the impression from the wife’s oral evidence that the decision to cancel her visa is the subject of a pending review proceeding, although details of that proceeding was not provided.
It is not in dispute the parties separated on 2 July 2022, being the date of separation relied upon by the husband in his application for divorce, including as amended.
Application for divorce
On 18 September 2023, the husband filed an application for divorce (“application for divorce”). That application identified the respondent wife as Ms Calhoun born in 1980 and sought a divorce in respect of the third marriage.
On 30 October 2023, the wife filed a response to divorce document claiming the husband “is married to someone else before our marriage. His first marriage is still valid without divorce he did cheat me and marry me.” Her response sought that the husband’s application for divorce be dismissed.
On 2 November 2023 orders and directions were made requiring, among other things, for the wife to file an affidavit by 2 February 2024, specifically addressing the grounds raised by her to contest the application for divorce and for the husband to do likewise by 16 February 2024. A notation made to those orders recorded that the contested nature of the application relates to the wife’s assertion that at the time of the purported marriage between the parties to the application for divorce, the husband was lawfully married to some other person.
On 22 February 2024, the husband belatedly filed an affidavit in which he denied he was married to someone else before he married the wife and deposed that he had only ever married one person, “namely, [Ms Calhoun], the Respondent Wife in these proceedings.”
On 28 February 2024, the wife belatedly filed an affidavit in support of her response to the divorce application (“the wife’s February affidavit”). She deposed the husband was married in early 2014 with a registration date in early 2014, according with the dates subsequently provided in respect of the second marriage. She did not say to whom the husband had previously been married or from where she obtained this information. The wife deposed she was seeking a copy of the marriage certificate in relation to the second marriage and “collecting all documents with proof of marriage”. She deposed she required six months to obtain the documents from the relevant department in Country C and would submit that material to the court once she received it. Annexed to her February affidavit was a notarised statement from a person named Mr L dated 23 February 2024 referring to the second marriage of the husband (but not identifying the other party to the marriage) and explaining a delay in the unnamed department issuing a marriage certificate for that marriage. I rely on this statement only as evidence that the wife was at that time (in February 2024) seeking to obtain copy records relating to the second marriage from Country C.
A compliance and readiness hearing was conducted on 1 March 2024 at which the Chief Judge made an order listing the application for divorce for a defended hearing before me on 15 March 2024 and requiring the parties to file further affidavit material they sought to rely upon at the defended hearing. A notation to that order again recorded the issue in dispute. The notation also recorded the wife indicated she needed a further six months to obtain evidence the husband was married to another person prior to their marriage and the court was not prepared to adjourn the matter for six months.
On 8 March 2024, the husband filed a further affidavit (“the husband’s March affidavit”) and gave the following evidence [references to annexures omitted]:
There is an additional marriage certificate issued [in Region E, Country C] (‘the [Region E] certificate’) dated […] 2024. This certificate represents an earlier registration of marriage, however both the wife and I consider our later marriage certificate registered in the […] Marriage Register with the marriage date as [late] 2014 to be our primary marriage certificate. Notably, on the [Region E] marriage certificate the Wife’s name is different from the marriage certificate I have previously had in my possession and relied upon in these proceedings. This also differs from the marriage certificate that the wife annexed to her affidavit filed 28 February 2024.
The wife is noted by the name ‘[Ms B Calhoun], rather than [Ms Calhoun]. I confirm that this is the same person, and the picture attached to both marriage certificates is of the wife and I understand that the Wife was previously known as [Ms B Calhoun] in [Country C] but opted to become known as [Ms Calhoun]. [Ms B Calhoun] and [Ms Calhoun] are one and the same person, being the Respondent Wife. […]
Throughout out marriage I have known the wife to go by the names [Ms B Calhoun] and [Ms Calhoun] interchangeably. […]
On 13 March 2024, the wife filed a further affidavit (“the wife’s March affidavit”), responding to the husband’s March affidavit. She did not respond directly to each of the above matters deposed to by the husband in his March affidavit but asserted, “[t]he application husband all fake allegation on me this is wholly denied” and “[t]he applicant doing joke to the court”. She did not specifically deny the allegation she was Ms B Calhoun.
The matter came before me on 15 March 2024 for defended hearing. I adjourned the matter for further directions, granting leave to the husband to amend the application for divorce to seek a divorce in respect of the second marriage (being the first marriage he asserts took place between the parties) rather than the third marriage. I did so relying on the decision of Federal Magistrate Riethmuller (as his Honour then was) in Keene & King [2011] FMCAfam 1117 and the authorities cited in that judgment.
Amended application for divorce
The husband filed an amended application for divorce on 5 April 2024, naming Ms B Calhoun as the respondent (asserting she is the same person as the respondent identifying herself as Ms Calhoun) and seeking a divorce order in respect of the second marriage. He filed a further affidavit the same day (“the husband’s April affidavit”) in support of the amended application, in which he gave evidence in respect of the parties’ marriages in similar terms to his March affidavit.
On 24 April 2024, the wife filed a further affidavit, denying she is Ms B Calhoun and alleging the husband is lying to the court (“the wife’s April affidavit”). Significantly, she deposed:
I am not [Ms B Calhoun] he tell a lie.
[…]
When he did married me why he did not tell me his is married to [Ms B Calhoun].
[…]
Someone told me from [Country C] [Mr Forman] married to [Ms B Calhoun] I told to court. I applied for copy of certificate in [Country C] then he gave that marriage certificate to court.
Then he made story [Ms Calhoun] is [Ms B Calhoun].
The applicant every time tell a lie to court.
I am [Ms Calhoun] not [Ms B Calhoun].
At a further hearing on 1 May 2024, I listed the application for divorce, as amended, for a defended hearing on 28 June 2024 and made further procedural orders ahead of that hearing.
The wife filed a response to the amended application for divorce on 23 May 2024, again seeking the application be dismissed. At item 6 of the response form, when prompted to set out why the application for divorce should be dismissed, the wife wrote “He TELL a Lie Always. About marriage.” At item 7 when asked if she disagreed with any statement in the application for divorce, she checked the “yes” box, but did not identify which statement(s) she disagreed with. She filed a further affidavit sworn on 21 May 2024[14] (“the wife’s May affidavit”) in the same terms as her April affidavit.
CONSIDERATION OF ISSUES TO BE DETERMINED
[14] This affidavit was filed on both 21 and 23 May 2024.
Proof of the subject marriage (the second marriage)
The court must first be satisfied of proof of marriage before an application for divorce in relation to that marriage can be considered. Accordingly, I need to be satisfied of the marriage in respect of which the husband seeks a divorce, being the second marriage – the marriage he asserts took place in early 2014, between him and the respondent using the name Ms B Calhoun.
Part VA of the Marriage Act 1961 (Cth) (“Marriage Act”) deals with the recognition of foreign marriages. Section 88C provides that foreign marriages, recognised as valid under local law at the time they were solemnised, will be recognised as valid in Australia provided none of the prohibitions set out in section 88D apply. Section 88G(1) of the Marriage Act provides that a document purporting to be the original or a certified copy of a certificate, entry or a record of marriage alleged to have been solemnised in, or under the law of, a foreign country and purporting to have been issued by an authority of that country or part of the country in which the marriage was allegedly solemnised, is prima facie evidence of the validity of the facts stated in the document and of the validity of the marriage to which the document relates.
Section 102 of the Family Law Act provides that in proceedings under the Family Law Act, the court may receive evidence of the facts stated in it in a document purporting to be either the original or a certified copy of a certificate, entry or record of a birth, death or marriage alleged to have taken place, whether in Australia or elsewhere.
Section 88G(1) of the Marriage Act and section 102 of the Family Law Act are not mutually exclusive. Section 102 is more broad in that the term “record” in that provision is not restricted to official documents issued by public officials and extends to an historical recitation of an event.[15]
[15] Nygh J in Lengyel v Rasad (No 2) (1990) FLC 92-154 at 78,075.
As explained by Berman J in Rahimi & Moradi [2023] FedCFamC1F 151 at [35] and [36]:
Even where a document does not qualify as a Marriage Certificate within the meaning of s 88G of the Marriage Act, it may still be admissible as a record of marriage within the meaning of s 102 of the Family Law Act 1975 (Cth) (“the Act”). This is because a document within the meaning of s 102 of the Act is a historical recitation of an event and does not have to be an official document.
Section 102 of the Act provides that the Court may receive as evidence, a document purporting to be either the original or a certified copy of a Certificate of Marriage alleged to have taken place in Australia or elsewhere. The section therefore enables a party to prove that the parties went through a ceremony of marriage simply by tendering a document which, on the face of it, states that it is an original or certified copy of the Marriage Certificate without having to prove the seal or signature appearing on the certificate is true or is the official seal of the Court which issued it.
When the matter came before me on 28 June 2024 for defended hearing, the husband was unable to tender an original or certified copy of the document recording registration of the second marriage, photographs of which had been annexed to his affidavits (“the record of the second marriage”). I granted an oral application made on behalf of the husband for an adjournment, for the sole purpose of him obtaining an original or certified copy of the record of the second marriage, in circumstances where his counsel conceded the husband had provided little evidence on affidavit about marriage ceremony itself. The adjournment application was not opposed by the wife.
On 7 August 2024, the husband filed electronically, a copy of what he described in his oral evidence as the “original” record of the second marriage, being the marriage recorded as having taken between him and Ms B Calhoun in early 2014. That document was tendered at the final hearing and I will refer to it as the “original marriage record”.[16] It presents consistently with the copy of that document filed by the husband on 7 August 2024.
[16] Exhibit B.
The original marriage record contains a colour photograph affixed to the front page of the document, which the wife agreed was a photograph of her and the husband from their marriage. I observed for the transcript, the paper around the photograph was torn. Whilst the document was described as an original, two photographs on the rear of the page are copy photographs printed onto the page itself. Each of those photographs showed four people standing side by side. Below each photograph are typed names, purporting to correspond with each person pictured and what appear to be original handwritten signatures of each named person. The first photograph was labelled (from left to right) “Father ([Mr M]), [Ms B Calhoun], [Mr Forman] and [Mr N]”. The second photograph was labelled (from left to right) “Father ([Mr F]), [Ms B Calhoun], [Mr Forman] and [Mr O]”. The wife agreed she appears in each of those photographs alongside the husband. She agreed the other man beside her in the second photograph is Mr F. However, she denied she is Ms B Calhoun and that Mr F is her father, as described below the photographs. The parties agreed the persons to the far right of each photograph, standing beside the husband, were identified as witnesses.
Counsel for the husband pointed to a number of features on the original marriage record he submitted pointed to the authenticity of the document, including what he described as a “wet” signature and stamp purported to be of a Registrar of Marriage on the bottom right-hand side of the front page of the document and over the original photograph of the parties on the bottom left hand side of the page. He also pointed to what appeared to be original “wet” signatures of each of the people featuring in the copy photographs on the rear of the page.
The wife cross-examined the husband in relation to the original marriage record and in particular, why it did not bear an official seal. The husband gave evidence his father obtained the original marriage record from Country C following the last hearing. The wife submitted it is implausible an authority would permit the original document to be removed from their records as suggested by the husband. This I cannot say without evidence from either from the office that provided the certificate or from an expert in Country C.
After being cross-examined in relation to the original marriage record, the husband then produced what was described as a notarised copy of the marriage record which did bear an official seal, stamps and signatures and annotations recording the copy was notarised in early 2014.[17] That original notarised copy presented consistently with the copy previously annexed to affidavits of both parties.[18] I will refer to this document as the “notarised copy” of the marriage record.
[17] Exhibit C.
[18] Including annexure MRF -4 to the husband’s affidavit filed on 8 March 2024 and Annexure MSC-1 to the wife’s affidavit filed on 13 March 2024.
There was some attention given at the hearing to differences between the original and notarised copy of the marriage record. For example, aside from signatures and stamps applied on the notarised copy, counsel for the husband acknowledged the signatures of the people photographed on the rear of the certified copy document appeared different between the original and notarised copies of the marriage record, even to the eye of a non-expert. The date of registration was handwritten in a different format on each document (with dashes on one and slashes on another). However, as submitted by counsel for the husband, the information contained in both documents is the same, as are the photographs. The stamps applied to the notarised copy but not to the original are to be expected, being applied by a notary. The signature and stamp it appears have been applied by the Registrar of Marriage, have been applied across the photograph and the page in both the original and certified copy.
At the conclusion of her cross-examination of the husband, the wife asserted the marriage record was false and asked how the husband made it. The husband denied what was put to him by the wife and confirmed his evidence that the original marriage record had recently been obtained by his father from an office in Country C and the notarised copy was some ten years old. He denied that he had lied about the wife’s identity and confirmed his evidence that the wife is Ms B Calhoun.
The husband gave oral evidence that when the parties married, he received an original record of the marriage which was taken by the wife to support her sponsorship of his visa application. He said he retained the notarised copy. When the wife put it to the husband that there could not be two originals of the same document, the husband answered that there were two, one which was taken by her and one taken by him. He said the notarised copy he received had been stored at his paternal home in Country C and posted to him for the hearing along with the original record he said was obtained by his father. I accept the submission of counsel for the husband that it is plausible that more than one record of the marriage was prepared at the time of the marriage, for example, to be provided to each family and/or retained as an official record.
Whilst the wife raised concerns about the marriage records tendered by the husband, she did not dispute the second marriage, only the identity of the bride. In fact, it was the wife who first gave evidence of the second marriage. In her February 2024 affidavit she deposed the husband was married in early 2014 with a registration date in early 2014, which accords with the dates provided in the original marriage record and the notarised marriage record. She did not say who had provided her with information about that marriage. She did not say how she was aware of the date of the second marriage and of the date of registration of the second marriage, save that “someone” told her from Country C. She deposed in February 2024 that she was trying to obtain a copy of the marriage certificate but required six months to do so. When asked at the final hearing, almost six months later, why she did not do so she said she withdrew her effort once the husband provided the marriage record himself. I find it unlikely she would have done so if she disputed the accuracy of the marriage record. I note she annexed the same copy of the notarised marriage record to her own affidavits, pointing to it as proof the husband was previously married to Ms B Calhoun, without challenging the accuracy of the marriage record.
Having considered all of the above matters, I accept the original and notarised copy marriage records as evidence of the marriage between the husband and Ms B Calhoun in early 2014 and of the facts stated in those records, pursuant to section 102 of the Family Law Act. Whilst not conclusive evidence of those matters, the wife has not adduced evidence to satisfy me to the contrary.
Identity of the wife
The determination of the two key issues in this case are related – namely proof the second marriage and proof the wife’s identify. Whilst I have separated the two issues in my reasons, my consideration of each has informed my consideration of the other.
As I have already observed, notwithstanding the matter of her identity had been put in issue in these proceedings, the wife did not adduce any evidence to corroborate her own evidence that she is Ms Calhoun and not Ms B Calhoun. She did not depose to her familial origins and relationships. She did not give evidence about her parents or siblings. She did not give evidence about her cousins, including to address the allegation she assumed the identity of her cousin, Ms Calhoun. She did not tender identity documents, photographs or other documentary evidence and she did not adduce evidence from any witnesses. It is significant that this evidence was within her power to call but she did not do so.
At the hearing on 1 May 2024 the wife was asked if she intended to rely on evidence from any witnesses and she foreshadowed adducing evidence from a witness named Mr P. An order was made for the filing of an affidavit by Mr P if the wife sought to adduce evidence from him, but she did not do so.
The marriage records for each of the first and the second marriages record that the father of each of Mr D and Ms B Calhoun is named Mr F and they are identified as coming from came from the same town. This is consistent with the husband’s evidence that Ms B Calhoun and Mr D are siblings. The wife confirmed in her oral evidence that the father of Mr D (her former husband) is Mr F. She denied the town is a small town and suggested there could be more than one person named Mr F but she did not give evidence that she knows of more than person named Mr F.
When cross-examined, the wife was asked to identify a man sitting in court who had accompanied her to court for this and previous hearings. The wife initially asked if she had to answer, and then identified the man sitting in court as Mr D. She denied he is her brother. The wife did not provide any explanation as to why her former husband, from whom she said she was divorced approximately 10 years ago, has regularly accompanied her to court in this proceeding. I find it is likely Mr D accompanied the wife to court because he is her brother.
When asked about the first marriage (between Ms Calhoun and Mr D in 2012), the wife initially provided an answer which was translated as “I don’t want to talk about it. That’s my past and I don’t want to talk about it”. When asked if MrD is the brother of Ms B Calhoun, she answered, “I don’t know because I am [Ms Calhoun]”. She answered further questions put to her in cross-examination about Mr D’s siblings as follows:
Counsel:So it’s your evidence that you’re not aware of who [Mr D]’s siblings are and whether or not he is related to [Ms B Calhoun]?
Wife: Yes.
Counsel: You don’t know who his siblings are? Is that your evidence?
[…]
Wife: No I don’t know. I just know about [Mr D].
[…]
Counsel: So it’s your evidence that you were married to [Mr D] in 2012?
Wife: Yes.
Counsel: So it’s your evidence that you were married to [Mr D], but you don’t know who his siblings are?
Wife: No.
Counsel: Is that no, you don’t know who the siblings are, or no that’s not your evidence?
Wife: This is my evidence that I came after marriage here, so I don’t know.
Counsel: So just to clarify, it’s your evidence that despite being married to [Mr D], you don’t know who his siblings are? Is that your evidence?
Wife: I never tried to know about it.
Counsel: You never met them at the wedding ceremony?
Wife: No.
Counsel: He never spoke to you about any siblings?
Wife: No.
When asked if the material filed in these proceedings referring to Ms B Calhoun being the sister of Mr D caused her to ask Mr D about any siblings he has, she answered through the translator, “that’s my past, I don’t want to discuss anything about him now.” I do not accept this evidence. I find it implausible the wife did not know of her former husband’s siblings, particularly given his attendance at court indicates he is someone she has maintained a close relationship with for some ten years after their divorce. Even if that were the case, it defies credibility that the wife did not ask Mr D if Ms B Calhoun is his sister given the dispute before the court and where she wishes to persuade the court she is not Ms B Calhoun.
The wife was asked if she had any siblings and initially answered that she cannot give an answer to that question, she doesn’t feel comfortable answering and does not want to answer. I sought to clarify with the wife if she was objecting to answer on the basis that her answer might expose her to a criminal or civil penalty and she answered, “no, I don’t have any siblings.” The wife’s initial response, coupled with her failure to adduce evidence of her familial relationships, cause me to doubt her subsequent answer.
The husband annexed copies of the notarised marriage record to each of his March and April affidavits.[19] The wife did not make any comment in relation to the photographs printed on the second page of the marriage record when responding to those affidavits in her April and May affidavits. When questioned about those photographs, the wife agreed she was pictured with the husband in the photographs and she agreed Mr F was pictured in one of the photographs, standing beside her. When asked if Mr F was standing there “as her father” she answered, “This is not correct. I don’t know. He is [Mr F]. I don’t know whether it is photocopied or not. I don’t know.” Only when asked to explain the photograph of her standing beside Mr F, identified as Ms B Calhoun’s father in the marriage records, did the wife question the authenticity of the photograph and suggest “it’s a fake thing”. She had not previously made this assertion in her affidavits or oral evidence. When asked if the signature of Ms B Calhoun was made in her handwriting she answered, “no. When I am not [Ms B Calhoun], then why would I write [Ms B Calhoun]?” I did not find this evidence of the wife convincing, even allowing for translation, where it was provided only in cross-examination and then in defensive terms. I also note the wife had not cross-examined the husband in respect of the authenticity of this photograph.
[19] Annexures MRF-1 and MRF-1.
The husband did not adduce evidence from family members or guests of the marriage ceremony in early 2014 to identify the wife, notwithstanding his oral evidence there were more than 100 guests in attendance. He did not explain why he did not do so.
The husband did tender a copy of a photograph he deposed was taken at the parties’ marriage ceremony in early 2014.[20] When cross-examined, the wife identified herself and the husband in that photograph, dressed in their wedding attire. She identified Mr D standing behind her and Mr F standing beside the husband in the same photograph. When asked if the woman standing beside her in the photograph was Ms R, she answered non-responsively through the interpreter, “I can see a lady, yes. And you are telling me that she is [Ms R].” When asked again if the person pictured standing beside her was Ms R, she answered, “Look this is what you are telling me, that she is [Ms R]. But I can see that there is a lady there in the photograph.” When asked, she said the people photographed beside her and the husband in this photograph from their wedding were not her parents. I do not accept that evidence. The wife did not cross-examine the husband in respect of this photograph. She did not challenge the authenticity of the photograph. She did not challenge the husband’s evidence of the date on which the photograph was taken. She did not provide any explanation as to why Mr D and Mr F were photographed with the parties at on the occasion of their wedding. I find there is no plausible reason they would be, if they were indeed her former husband recently divorced, and her former father-in-law. The more likely explanation is that the wife is Ms B Calhoun, Mr D is her brother and Mr F is her father, as asserted by the husband. From the wife’s unwillingness to answer if the woman pictured standing beside her was Ms R, I infer she did not wish to identify that person because doing so would not assist her case.
[20] Annexure MRF-8 to the husband’s affidavit filed on 5 June 2024.
Significantly, the wife did not call Mr D to give evidence on her behalf, in respect of her identity, her relationship with him, their marriage in 2012 and subsequent divorce, his relationship with Ms B Calhoun and his attendance at the parties’ marriage in 2014.
The principle commonly expressed as the “rule in Jones v Dunkel” was summarised by the High Court in Kuhl v Zurich Financial Services AustraliaPty Ltd follows (citations omitted):[21]
… the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. … The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn…
The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party. …
[21] (1959) 101 CLR 298 at [63]–[64].
Accordingly, in the absence of an explanation by the wife as to her failure to call Mr D to give evidence on her behalf when it is apparent from his attendance at court that he as available to do so and he was a person who could shed light on key factual issues in dispute, I draw an inference that his evidence would not have assisted her case.
The husband annexed to his June 2024 affidavit what was described as a true and correct copy of the Income Tax Department of Country C’s ID of Ms B Calhoun.[22] That document showed the names Ms B Calhoun and Mr F, showed a signature of the name Ms B Calhoun, and a photograph of a woman. The wife agreed in her oral evidence she was pictured in the photographs. However she denied it was her handwriting signing the name of Ms B Calhoun. The husband annexed to his affidavits copies of what he asserted were other identity documents of Ms B Calhoun and Ms Calhoun. However, they were poor copies and were provided without supporting evidence of the source of those records. The wife also pointed to inconsistencies in information recorded in those supporting documents annexed by the husband, including different dates of birth for Ms B Calhoun and different spelling of Mr F’s name. I have not relied upon the copy identity documents tendered by the husband where the authenticity of these records were not admitted by the wife, in the absence of evidence of their provenance. However, I do find it significant that the wife did not adduce any identification documents herself in response to this evidence or otherwise, to support her contention that she is Ms Calhoun not Ms B Calhoun. Such evidence was key to the primary issue and was within her power to call.
[22] Exhibit MRF-3 to the husband’s affidavit filed on 5 June 2024.
The husband tendered a photograph of a wedding invitation card, containing the following text:[23]
[23] Exhibit MRF-7 to the husband’s affidavit filed on 5 June 2024.
[Ms T] & [Mr F]
Request The Pleasure Of Your Company On The Auspicious
Occasion of the Wedding Ceremony Of Their daughter
[Ms B Calhoun]
With
[Mr Forman]
When & Where
ON […]., 2014
[…]
VENUE:-
[…]
[…]The information provided on this card matched the date and location of the marriage recorded in the original and notarised marriage records adduced in respect of the second marriage. When cross-examined, the wife said she had seen the card before, that it is a normal marriage card you see for all marriages and that this was Ms B Calhoun’s invitation card not hers. I note however, she did not adduce evidence of a like wedding invitation card to a wedding ceremony between the parties in late 2014 or on any other date, referring to her as Ms Calhoun.
The wife did not adduce any other evidence of a wedding ceremony between her and the husband. She relied only on the copy marriage records for the third marriage filed by the parties and annexed to their affidavits.
The only explanation offered by the wife for her failure to adduce evidence to challenge that adduced by the husband, was the submission made in her closing address that she was waiting to see how many fake documents would be produced by him. I do not accept this as an adequate explanation for the wife’s failure to adduce evidence herself of her identity or of the marriage between the parties she says occurred in late 2024, rather than in early 2014.
In her closing address, the wife submitted the husband’s application for divorce should be dismissed by this court and the husband can apply for divorce in Country C. She submitted she would more easily be able to obtain evidence from Country C for proceedings conducted there. However, she did not identify any particular evidence she had sought from Country C and not been able to obtain for the purpose of this proceeding in Australia or explain why it would be easier for her to obtain evidence for proceedings in Country C, where she lives in Australia.
The husband also relied on documents from the Australian Department of Home Affairs produced pursuant to subpoena recording:
(a)Decisions of that department to cancel the parties’ visas in 2022, following an investigation conducted by that department and findings the wife had relied on bogus documents in support of her visa application;[24] and
(b)Findings of the department that true identity of the wife, being the visa holder Ms Calhoun with a date of birth in 1980, is Ms B Calhoun born in 1981.[25]
[24] Annexure MRF-9 to the husband’s affidavit filed on 22 February 2024.
[25] Exhibit D.
When various findings of the department were put to the wife in cross-examination, she repeatedly responded that she had been unable to attend an interview with the department due to illness. However, she did not deny that she had a migration agent submit responses and supporting documents on her behalf for the purpose of that investigation as recorded in the notice of decision. The wife’s oral evidence in response to this and other matters put to her from the notice of decision was vague and non-responsive.
Whilst the tendered Department of Home Affairs records are consistent with the husband’s claim in relation to the wife’s identity and the wife’s evidence about this investigation was unsatisfactory, I have not relied on the Department’s findings, noting the wife’s oral evidence indicates the decision of the Department is the subject of review proceedings and, in any event, evidence of a decision, or of a finding of fact, in another proceeding is generally not admissible to prove the existence of a fact that was in issue in that proceeding in another proceeding.[26] I have undertaken my own assessment of the evidence before me in this proceeding without relying on the decision of the Department.
[26] Section 91 Evidence Act.
Having regard to my assessment of the combined weight of all evidence before me, I am persuaded on the balance of probabilities that the wife is one and the same person as Ms B Calhoun identified in the marriage records relating to the second marriage and the person who married the husband in early 2014 in Country C.
My finding the wife is one and the same person as Ms B Calhoun entails a finding that her father is Mr F and Mr D is her brother. Accordingly, even if the wife and Mr D were not divorced by early 2014, being the date of the second marriage, that marriage does not affect the validity of the second marriage in Australia. This is because Australia does not recognise foreign marriages between parties within a prohibited relationship, which includes a marriage between siblings.[27]
[27] Sections 88D(2)(c) and 23B of the Marriage Act 1961 (Cth).
CONCLUSION
Being satisfied of the following matters:
(a)The marriage between Mr Forman and Ms B Calhoun in Country C in early 2014 is proved, being the marriage identified in the husband’s application for divorce, as amended;
(b)The respondent wife is Ms B Calhoun, being a party to that marriage, also known as Ms Calhoun;
(c)The applicant husband was at all material times domiciled in Australia;
(d)The ground for the application for a divorce order is proved, it not being in dispute the marriage has broken down irretrievably and the parties lived separately and apart for 12 months immediately prior to the filing of the husband’s application for divorce; and
(e)There is no reasonable likelihood of the parties resuming their relationship,
I will make a divorce order in respect of the early 2014 marriage as sought by the husband.
Proper arrangements for the parties’ son
The husband submits proper arrangements have been made for X’s care by the final parenting orders. He deposed X spends equal time with both parents in accordance with the final orders, he is financially supported by both parents and he is in good health. The parties agree he is in grade 3 at S School. The husband deposed he is progressing well and meeting all developmental milestones. The wife deposed in her affidavit filed on 23 May 2024, that X’s “care is not good” and “my son everytime complaint me dad hurt me as well as Dad’s friend abuse and threat him at his home I already complaint to child protection.” However, she did not subsequently adduce evidence of any action taken by Child Protection, she has not initiated further parenting proceedings and she did not contend the court cannot be satisfied proper arrangements have been made for the parties’ son, as required by section 55A(1) of the Family Law Act for a divorce order to take effect. In the absence of further evidence from the wife and any cross-examination by her of the husband in relation to X and his care arrangements, including as set out in Part F of the amended application for divorce, I am satisfied proper arrangements in all the circumstances have been made for X’s care, welfare and development and I will make a declaration, by order, to that effect.
In accordance with section 55 of the Family Law Act, the divorce order will take effect and terminate the marriage at the expiration of a period of one month from the date of this order, so on 7 October 2024.
Third marriage
Neither of the parties applied for a declaration of nullity in respect of the third marriage. The husband has most recently deposed there was no marriage between the parties in late 2014. The wife has not adduced evidence of a marriage ceremony between the parties in late 2014. Neither adduced an original or certified copy of the marriage record in relation to the third marriage, they each relied only on copies annexed to their affidavits. Accordingly, I do not consider I am in a position to make any declaration in relation to the third marriage.
REFERRAL TO AUTHORITIES
The evidence in this matter points to the parties having provided false information to a Commonwealth government department in support of their respective applications for visas for entry to Australia.
In T & T (1984) FLC 91–588, the Full Court said that there can be no doubt that where evidence or material discloses breaches of the Commonwealth laws, a judge is entitled to bring those breaches to the notice of the relevant Commonwealth authorities.[28] It was also suggested by Simpson and Bartlett SJJ in that decision, that a trial judge might fail in his or her public duty by not brining such a breach to the notice of the authorities.[29]
[28] at 79,746.
[29] at 79,747.
I note however the circumstances of the parties’ visa applications have already been investigated by the Department of Home Affairs and the subject of decisions of that department, and the wife’s oral evidence suggests those decisions are under review. Accordingly, I will not make any referral of this matter to Commonwealth authorities.
I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A. Humphreys. Associate:
Dated: 6 September 2024
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