HILLS & KILLEN

[2015] FamCA 536

FAMILY COURT OF AUSTRALIA

HILLS & KILLEN [2015] FamCA 536

FAMILY LAW – MARRIAGE – Declaration as to invalidity of overseas marriage – Where respondent already married at the time of overseas marriage – Consideration of Part VA of the Marriage Act 1961 (Cth) – Overseas marriage declared invalid – Respondent to file submissions as to the offence of bigamy and consideration of whether the file should be referred to the Commonwealth Attorney General.

Marriage Act 1961 (Cth) Part VA, s 94

APPLICANT: Ms Hills

RESPONDENT: Mr Killen

FILE NUMBER: PAC 597 of 2015

DATE DELIVERED: 2 July 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 2 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bautista

SOLICITOR FOR THE APPLICANT: Arnel Bautista & Associates

Orders

1. The marriage solemnised on … 2014 at City A, USA between Ms Hills and Mr Killen be declared invalid.

2. By no later than 28 August 2015 the Respondent file and serve written submissions as to whether these papers should be referred to the Commonwealth Attorney General for consideration as to prosecution for bigamy.

3. The matter is adjourned to Monday 7 September 2015 at 9:30am for a further Case Management hearing.

4. In the event of there being no representations received by the Respondent and there being no appearance by or on his behalf on the adjourned date the papers shall be forwarded to the Registrar of this Court with a request that they be referred to the Commonwealth Attorney General for consideration as to prosecution.

5. The Applicant be excused from further attendance in these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hills & Killen 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. The applicant wife in the present proceedings seeks a declaration that the marriage between herself and the respondent solemnised in City A in the United States of America in 2014 is invalid by reason of the provisions of the Marriage Act 1961 (Cth) (“the Marriage Act”).

2. In support of the application the applicant relies upon her affidavit sworn on 2 February 2015 and filed on 11 February 2015.

3. The applicant was born in the Country B in 1964 and she is presently 51 years of age.  She was twice married before her marriage to the respondent, Mr Killen. 

4. The respondent in these proceedings is now 75 years of age. The applicant’s first marriage solemnised in 1982, ended when there was a declaration that her then husband was presumed dead by reason of a Court order in the Country B in 1992. The applicant subsequently married Mr Hills in 1995. In 2002 Mr Hills passed away, as evidenced by the death certificate attached to the applicant’s affidavit.

5. The applicant had known the respondent in these proceedings for some time, having initially been introduced to him in Saudi Arabia in 1990. She says that she was informed by the respondent that he was divorced from his first wife, Ms C Killen, on 20 February 1978, that marriage having been solemnised some years before in 1960. That divorce is evidenced by the decree nisi of dissolution of marriage exhibited to the applicant’s affidavit.

6. The respondent subsequently married Ms D Killen. That marriage was subject to a decree nisi of dissolution of marriage on 9 October 1997 in relation to that marriage solemnised in 1978. 

7. Subsequent to the decree nisi of dissolution of marriage on 9 October 1997, the respondent married again in 1998 in Queensland. That marriage was between the respondent and a Ms E.

8. The parties resumed a relationship in about August 2010. In May 2013, the respondent and the applicant visited the Country B for a few weeks and in June 2013 the respondent proposed marriage to the applicant. The respondent, says the applicant, suggested they should marry in City A, USA. In 2014 the parties married in a ceremony in City A as evidenced by the marriage certificate exhibited to the applicant’s affidavit.

9. It appears to be conceded by the respondent in his correspondence with the Court that at the time of the marriage in City A he remained married to Ms E. 

10. The applicant’s application for a declaration as to invalidity is made pursuant to the provisions of Part VA of the Marriage Act that deals with the recognition of foreign marriages. The validity of foreign marriages is governed by the provisions of section 88D(1) of the Marriage Act that provides that:

    Subject to this section, a marriage to which this Part applies shall be recognised as valid in Australia.

11. However section 88D(2) provides that a marriage to which this Part applies shall not be recognised as valid in accordance with subsection (1) if:

    (a)either of the parties was at the time of marriage a party to a marriage with some other person and the last mentioned marriage was at that time recognised in Australia as valid.

12. There is no doubt that as at the date of the purported marriage in City A, USA the respondent remained validly married to Ms E. 

13. There is an issue between the applicant and the respondent as to whether the applicant was aware of the fact that the previous marriage existed and had not been dissolved.  That is immaterial for the purpose of the present application. 

14. It is clear that the applicant is entitled to her declaration and, accordingly, a declaration will be made pursuant to section 88D of the Marriage Act that the marriage solemnised in 2014 at City A, U.S.A. between Ms Hills and Mr Killen be declared invalid.

15. However, another issue arises as a consequence of the evidence before the Court today. Section 94 of the Marriage Act provides for the offence of bigamy. The penalty for such an offence is imprisonment for five years. The strong inference before the Court is that notwithstanding the respondent to the present application knowing full well that he remained married, he wilfully entered into a marriage with the applicant in these proceedings in City A, USA.

16. As a consequence of that circumstance, it is incumbent upon the Court to consider whether the papers in these proceedings should be referred to the Commonwealth Attorney-General to give consideration as to whether the respondent should be charged with the offence referred to. The Court will accord to the respondent an opportunity to provide to the Court further submissions that would assist the Court’s deliberation in this regard.

17. Accordingly, as to the remaining aspect of the proceedings, these proceedings will be adjourned to 9:30am on 7 September 2015 in order that the respondent has the opportunity of making submissions to the Court as to whether he should be referred to the Commonwealth Attorney-General for consideration for prosecution as to bigamy. 

18. Orders will be made accordingly.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 2 July 2015.

Associate:

Date:  2 July 2015