Hills and Killen (No 2)

[2015] FamCA 761

FAMILY COURT OF AUSTRALIA

HILLS & KILLEN (NO 2) [2015] FamCA 761

FAMILY LAW – NULLITY – where bigamous marriage – where husband’s conduct an offence under the Marriage Act 1961 – whether husband’s conduct should be referred to the Commonwealth Attorney General following a declaration of nullity – where husband’s conduct so referred.

Marriage Act 1961 (Cth)

Hiu & Ling (2010) FamCA 743

APPLICANT: Ms Hills

RESPONDENT: Mr Killen

FILE NUMBER: PAC 597 of 2015

DATE DELIVERED: 9 September 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 9 September 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Arnel Bautista & Associates

COUNSEL FOR THE RESPONDENT: Litigant in person

Orders

1. That the Registrar of the Family Court of Australia at Parramatta forward the documents referred to in the last paragraph of these reasons for judgment to the Commonwealth Director of Public Prosecutions.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hills & Killen (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 597 of 2015

Ms Hills

Applicant

And

Mr Killen

Respondent

REASONS FOR JUDGMENT

1. On 2 July 2015, the Court delivered reasons for judgment in relation to the wife’s application for a declaration of nullity as to the marriage that took place in 2014 in City A, USA between the applicant wife and the respondent husband.  The Court declared the marriage a nullity.

2. However, by reason of matters disclosed in the applicant wife’s application for the requisite declaration, the Court considers it appropriate to give to the respondent husband an opportunity to make submissions as to why the papers should not be referred to the Commonwealth Attorney-General for consideration as to the circumstances of the respondent husband’s bigamous marriage. 

3. The considerations touching upon whether to refer the papers were considered by Mushin J in Hiu & Ling (2010) FamCA 743, where his Honour said:

   Referral of Papers to the Attorney-General

   The offence of bigamy

   16. The Marriage Act provides:

   94(1) A person who is married shall not go through a form of ceremony of marriage with any person.

   (1A) For the purposes of the offence against subsection (1), strict liability applies to the physical element of circumstance, that the person was married when the form of ceremony took place.

   The penalty for an offence under subsection 94(1) is imprisonment for five years…

   Referral of papers - common law authority

   18. In T and T (1984) FLC 91-588, the Full Court held at page 79,746:

   In our opinion there can be no doubt (leaving aside any statutory prohibition) that where the evidence or other material discloses breaches of Commonwealth laws a judge exercising jurisdiction under the Family Law Act 1975 is entitled to bring these breaches to the notice of the Commonwealth Attorney-General.

   19. In In the Marriage of P and P (1985) FLC 91-605, Lindenmayer J found that one of the parties to the proceedings had committed one or more offences relating to tax evasion which is a crime against the Commonwealth. His Honour held at page 79,925:

   ...I am of the opinion that this Court, as a federal court exercising the judicial power of the Commonwealth, has a duty to protect the revenue of the Crown in right of the Commonwealth.  That duty extends to requiring this Court to take such steps as it is able to take to ensure that the revenue laws of the Commonwealth are not defrauded or evaded by litigants who come before it.

   20. In Malpass and Mayson (2000) FamCA 1253, the Full Court held at paragraph 31:

   Despite these authorities we do not think that it necessarily follows that the Court is always under a duty to report the fact of commission of possible offences to relevant authorities including revenue authorities, although it clearly has the power to do so.  Questions of degree must be relevant.  There are many cases where minor irregularities are revealed in relation to taxation, social security and other issues.  We think it unreasonable for the Court to burden itself with a duty to report all of these matters.  Different considerations may apply in relation to more blatant and substantial irregularities.  We leave the determination of this issue to be determined in a case where the point arises directly.

   21. In Georginas & Kostrati (1988) 49 SASR 371, in the Full Court of the Supreme Court of South Australia, Von Doussa J at page 376 said:

   Where a tax fraud or evasion is disclosed in evidence it is the court's duty to draw the evidence to the attention of the executive branch of government for such action as may be appropriate.

   22. Accordingly, I conclude that not only am I am able to refer the papers in this matter to the appropriate authorities for consideration of whether to prosecute the respondent for bigamy but I have a duty to do so.  While I do not have a duty to refer the papers in every case, the question of whether I do refer the papers in this matter is to be decided on its own facts and regard should be had to the seriousness of the potential offence.

4. In this matter the evidence is clear that at the time that the parties married in City A, USA, the respondent husband clearly was aware that he had previously married and that the marriage that took place in 1998 in Queensland was subsisting at the time of the marriage in City A. 

5. The respondent husband was afforded the opportunity of making submissions as to whether the Court should refer the papers to the Commonwealth Attorney-General. By telephone link on 9 September 2015, he did not dispute the circumstance that he was aware that he remained married at the time he underwent a ceremony of marriage in City A to the present applicant. He submitted to the Court that it was “a romantic idea” and “I did not think it mattered much”. He says he was of the opinion that the marriage in City A had no legal consequences in relation to his circumstances in Australia.

6. Otherwise, the respondent submitted that he was 76 years of age and in poor health. 

7. The conduct of the respondent in blatantly entering into a further marriage knowing that he remained married is a blatant disregard of circumstances that were prohibited by the provisions of the Marriage Act 1961 (Cth), circumstances that carry a substantial penalty, the maximum being a period of five years imprisonment.

8. The respondent’s conduct was a complete and wilful disregard of his obligations at the time of the subject marriage to ensure that he was legally able to enter into the ceremony. 

9. Whilst it is noted that the Court has a discretion as to whether the papers should be referred to appropriate authorities in these circumstances, the Court considers it appropriate that the papers be referred and the question as to whether the respondent is to be prosecuted be dealt with by the relevant authorities.

10. It is requested that the Registrar do so.

11. It is directed that the following documents be referred to the appropriate authorities: 

    a)The initiating application filed by the applicant on 11 February 2015;

    b)The affidavit of the applicant filed on 11 February 2015;

    c)The reasons for judgment delivered on 2 July 2015;  and

    d)A copy of these reasons for judgment.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 9 September 2015.

Associate: 

Date:  16 September 2015