H and C
[2003] FMCAfam 329
•14 July 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| H & C | [2003] FMCAfam 329 |
| FAMILY LAW – DISSOLUTION – Application to rescind decree nisi by reason of miscarriage of justice – joint application for dissolution – applicant wife cannot read or speak English – application not translated into her language – applicant husband planned to participate in marriage for fraudulent immigration purposes – wife aware of fraudulent purpose – decree nisi rescinded – parties referred to Attorney-General’s Department for investigation of possible offences under federal laws. |
| Applicant: | M H H |
| Respondent: | J F C |
| File No: | PAM1802 of 2003 |
| Delivered on: | 14 July 2003 |
| Delivered at: | Parramatta |
| Hearing date: | 14 July 2003 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Solicitor for the Applicant: | Ms M.Shen |
| Solicitors for the Applicant: | Ma and Company |
| Solicitor for the Respondent: | Mr L.Lai |
| Solicitors for the Respondent: | Lai and Company |
ORDERS
The decree nisi pronounced 16 June 2003 is set aside.
The Court refers J F C and M H H to the Attorney-General's Department for investigation in relation to a possible fraud or conspiracy to defraud under the Migration Act 1987.
The Court refers M H H and J F C to the Attorney-General's Department for investigation in relation to a possible fraud or conspiracy to defraud the Department of Social Security.
A transcript of these proceedings is to be made available to the Attorney-General’s Department.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM1802 of 2003
| M H H |
Applicant
And
| J F C |
Respondent
REASONS FOR JUDGMENT
This is an application by M H H in which she asks that the Court rescind a decree nisi ordered by a Sessional Registrar on 16 June 2003. She relies on s.58 of the Family Law Act 1975 and alleges that there has been a miscarriage of justice as a consequence of perjury. The perjury complained of is her husband’s assertion as to separation contained in the affidavit that comprises part of the application for divorce filed 2 May 2003.
The application for divorce was a joint application. Hence the applicant in these proceedings was a joint applicant in the divorce proceedings. She affixed her signature on the same day that the husband did before the same solicitor, swearing the same evidence that the husband did. This suggests that if he has committed perjury so has the wife.
The application to rescind the decree nisi was filed on 2 July 2003. The applicant relied on a number of affidavits. These attest the circumstances surrounding completion of the joint application and factual errors that she says deprived the court of jurisdiction to grant the divorce.
These proceedings came before the Court on short notice and were listed before me on Friday last. That day there was no appearance by or on behalf of the respondent. I adjourned the proceedings until today because I was not in a position to hear the matter in the course of a duty list. I directed that the applicant’s solicitor notify the respondent that the matter had been adjourned for final hearing. Mr Lai, who acted for the applicant’s on the impugned joint application, appeared on behalf of the respondent. He asked that the Court adjourn the proceedings so that he could take further instructions from his client. That application was refused. Mr Lai previously advised the applicant’s solicitor he had instructions to accept service of this application. Accordingly service of the rescission application and affidavits in support of it was effected on him. Mr Lai has had a number of discussions with the respondent. In spite of his solicitor’s request that he attend upon him, the respondent has chosen not to. Nor has he arranged to collect the documents.
The applicant and the respondent still cohabit. On Thursday last the respondent advised the applicant that he did not intend to come to Court. The applicant was at the family home over the weekend. The respondent told her last night that it was for the Court to decide her application without his participation.
This morning I granted the applicant leave to file in court an additional affidavit that concerns the circumstances of her attendance upon Mr Lai. Mr Lai had a copy of this affidavit. Because of its contents I gave him the opportunity to cross-examine the applicant before he departed. He did not challenge the applicant's evidence of this issue.
Short history
The applicant wife was born in China on 10 June 1959.
The respondent husband was born in China on 5 June 1960.
The parties commenced cohabitation in September 1982. Their only child, a son, H C was born in 1984.
The parties married on 23 October 1989 in Fuquing City, FuJng, China.
In 1990 the respondent migrated to Australia. At some stage he attained Australian citizenship. Together with their son, the applicant migrated to Australia in December 1998. The family lived together from the time that the applicant arrived in Australia.
From May 2000 until June 2002 the applicant worked full time as a food packer. In June 2002 she lost her job.
The applicant became a permanent resident in October 2002. In October 2002 the applicant rented a room in Liverpool so that she could undertake English language classes. Thereafter she divided her time between the home at Ingleburn (weekends) and Liverpool.
Relevant law
Pursuant to s.55 a decree nisi will ordinarily become absolute one month and one day from the date upon which the decree nisi was ordered. This means that unless the Court intervenes the decree nisi will become absolute on 17th July 2003. A Court may, on the application of the parties rescind a decree nisi on the grounds that the parties have reconciled s.57. Any such application must be made by both of the parties to the dissolution. The respondent does not join the applicant in such an application.
The Court that ordered the decree nisi may also rescind it before the decree has become absolute. Either on the application of a party to the proceedings or on the intervention of the Commonwealth Attorney General. The rescission will be ordered if the Court it is satisfied that there has been a miscarriage of justice by reason of fraud, perjury, suppression of evidence, or any other circumstance, see s.58. If the Court rescinds the decree it may make an order that the dissolution proceedings are re-heard.
Applying the law to the facts
Has there been a miscarriage of justice by reason of perjury or suppression of evidence? The divorce application signed on 8 April 2003 attested that final separation occurred on 15 January 2002. Mr Lai prepared the application on instructions from the respondent. The respondent took the applicant to see Mr Lai so that she could sign the joint application. The parties and solicitor are all fluent in spoken Mandarin. The applicant cannot speak or read English. She knew that the purpose of attending the solicitor was so that she could sign a divorce application. In her written and oral testimony she said that her husband told her "I want to do a fake divorce and fake marriage." This was first raised with her in December 2002. Initially she refused and his request became a subject of regular discussion between them. Her understanding was that her husband wanted to obtain a divorce as a matter of form only. He would then remarry, sponsoring a foreign national using a marriage visa so that that person could gain permanent residence in Australia. It was intended that this marriage would be fraudulent in the sense that the parties to it would not live together and that the respondent would be paid for his participation. The applicant said “What he intended to do is to marry someone for the purpose of making money”. The applicant understood that she and her husband would continue as husband and wife and eventually remarry.
In April 2003 the respondent said to the applicant “If you are afraid that it is not a fake divorce. I will give you $70,000 as a security to be put in our son’s bank account. I don’t want it to be put in your account because I don’t want you to be married to someone else. When we remarry, we will still be husband and wife.” Because the respondent continued to harass her about the issue the applicant relented and agreed to go along with the plan. Satisfied with the payment of money the applicant signed the application.
When she went to Mr Lai's office she went intending, with her husband, to sign documents, which she knew, or reasonably suspected, would be false. Her intention, no less than his, was to commit a fraud on this Court. Her solicitor emphasised that the applicant did not know that prior to filing an application for a divorce, the parties had to have lived separately and apart for 12 months in order to prove that their marriage had irretrievably broken down. As a consequence, she submits, the failure of Mr Lai to translate the joint application into Mandarin is a fundamental failure on his part of his obligation as a solicitor and that the applicant should be excused, in essence, for her perjury in the divorce application. I agree with applicant’s solicitor that Mr Lai was obliged to ensure that the applicant understood the contents of the document before she signed it. He should have ensured that the document was read to her in a language that she understood. However his failing part does not detract from the attention that must be focused on the parties. Their joint intent was clear, that is to commit a fraud on the Court and perhaps others.
In late April 2003 the parties adult son transferred title in the home to the respondent and the respondent gave the applicant $70,000. The first instalment of $30,000 was paid on 1 May 2003.
The joint application established jurisdiction and in Paragraph 11 said that the parties separated on 15 January 2002. There are no children under 18 years. Accordingly the decree nisi was ordered.
The applicant's evidence in these proceedings, which is unchallenged, is that the parties did not separate on 15 January 2002. She says that the parties continued to live in the same house as husband and wife until October 2002. In June 2002 the applicant lost her job which led to arguments about money. Although actively looking for employment the applicant was unsuccessful and she decided that her job prospects were limited by her lack of English language skills. So she decided that she would undertake English language classes at Liverpool TAFE. In October 2002 she left the family home at Ingleburn and moved into a rented room in Liverpool. On 28 October 2002 she moved into her current flat. She moved out of the home at Ingleburn because she said this provided a peaceful study environment and was not as far for her to travel. When she moved the applicant says that she and the respondent both regarded their marriage as continuing. At least twice every week he came to visit her, they would enjoy a meal together and continued their sexual relationship. Every weekend, on either Friday evening or Saturday morning, the respondent collected the applicant and she returned to Ingleburn where the parties continued to share their matrimonial bedroom. The applicant cooked, cleaned and spent time with her husband as husband and wife. They did the grocery shopping together, watched television and went for walks. She returned to Liverpool on Monday mornings.
The applicant says her intention had always been that when her studies were over she would return to live at Ingleburn on a full-time basis. In December 2002 her husband encouraged her to move back into the house on a full-time basis. She did not do so preferring to complete her studies and wait until her lease expired because she did not want to lose the bond paid for her accommodation.
Curiously, in spite of the fact that the parties, according to the applicant’s evidence, regarded the marriage as continuing, maintained their sexual relationship and spent a significant amount of time together, the applicant claimed and received a NewStart allowance from the time she took the Liverpool room. She has received government benefits from 15 September 2002. The applicant says that she advised Centrelink of the precise details of her living arrangements qua the respondent and the fact that she and her husband regarded themselves as still married and that their marital relationship continued. During the hearing I expressed concern about the effect of this evidence. I gave her a warning that I may refer this matter to Centrelink for investigation. Her solicitor told me that the applicant has nothing to be concerned about as Centrelink were fully apprised of the entire circumstances. I intend to refer this matter to the Attorney general’s Department and recommend that the papers be forwarded to Centrelink for investigation. I will include a transcript of the evidence and the affidavits that have been filed in these proceedings. It does not accord with my understanding that a party to an intact and continuing marriage is entitled to NewStart allowance.
The applicant's nephew came to Australia in April 2003. Each weekend together the parties took the nephew on outings. The parties maintained to the nephew that they were still married.
The gravamen of the applicant’s evidence is that the answers to questions 11, 12, 14 and 15 in the joint divorce application filed 2 May 2003 were untrue. The parties did not separate on 15 January 2002. Until late May 2003 they regarded the marriage as continuing and lived as husband and wife. Although the applicant had a room in Liverpool, the parties agreed that she would live there for study reasons. They continued their sexual relationship and many other indicia of married life. It was only on 1 June 2003 that the respondent told the applicant that he regarded their marriage as at an end. Neither party had evinced such an intention previously. When they filed the joint application they joined in a collateral purpose of facilitating, firstly, a fraud on this Court and co‑operated to commit a potential fraud under the Migration Act. The wife says that she was coerced into take this course of action. The onus was on her to prove coercion. Nagging is not coercion. With respect to her, she does not demonstrate to my satisfaction that she acted against her will or was unaware of the wrongfulness of her actions. Her rationale in bringing this matter to the Court's attention now is that she believes her husband has tricked her because he has repartnered. She was content with to participate in a fraud on the Court but she is discomforted by a fraud on herself.
I am satisfied that there has been a miscarriage of justice by reason of perjury. For the reasons I have outlined, I am satisfied that the parties presented perjured evidence in the divorce application filed 2 May 2003. The parties did not separate until 1 June 2003. When they filed the application the marriage was continuing and the parties, although using two places of residence lived as husband and wife. These living arrangements were established as a stop gap measure so that the applicant had the best chance of completing her studies. Living between the two homes had nothing to do with the state of their marriage or their mutual intention to continue life as husband and wife. In those circumstances they were not entitled to a decree nisi.
I contemplated whether I should refuse the rescission application for public policy reasons. That is should an applicant who has willingly participated in a fraud on the court be relieved of the consequences of her fraudulent application? I decided that because the divorce application was so defective the court should not allow it to stand. The court could not stand by and allow fundamental elements of the Act to be ignored. Hence the decree nisi will be rescinded.
For the reasons I have already given, I am satisfied that the applicant presented false evidence in her application filed 2 May 2003. The perjury, in terms of the details, is not as extensive as that provided by the respondent as he actually gave the instructions for completion of the document. She was unaware of the precise details in the application but was certainly aware that was participating in a fraud.
I indicated during the course of these proceedings, after I had warned the applicant, that I may refer this matter for investigation in relation to offences under the Migration Act (s.245) and I will do so. The material will be forwarded to the Attorney-General with a recommendation that he refer the matter to the Immigration Department.
For these reasons I make the orders identified at the start of this judgment.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 12 August 2003
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