Hiu & Ling

[2010] FamCA 743

FAMILY COURT OF AUSTRALIA

HIU & LING [2010] FamCA 743

FAMILY LAW – DECLARATION – Validity of marriage – Bigamy – Marriage declared null and void – Papers referred to the Chief Justice for referral to the appropriate authority – Certificate granted pursuant to s.128 of the Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)
Marriage Act 1961 (Cth)
Evidence Act 1995 (Cth)

T and T (1984) FLC 91-588
Malpass and Mayson (2000) FLC 93-061
In the Marriage of P and P (1985) FLC 91-605
Georginas v Kostrati (1988) 49 SASR 371

APPLICANT: Ms Hiu

RESPONDENT: Mr Ling

FILE NUMBER: MLC 5288 of 2010

DATE DELIVERED: 24 August 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 9 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Vohra

SOLICITOR FOR THE APPLICANT: Forte Family Lawyers

COUNSEL FOR THE RESPONDENT: Dr Ingleby

SOLICITOR FOR THE RESPONDENT: Gadens Lawyers

Orders

IT IS ORDERED THAT

1. A certificate be granted pursuant to section 128 of the Evidence Act 1995 (Cth) to the respondent MR LING with respect to all evidence given by him in this application on 9 August 2010.

2. The marriage solemnised at Melbourne on … February 2010 between MS HUI and MR LING is declared to be absolutely null and void.

3. A sealed copy of this order, a certified copy of the reasons for judgment delivered this day, sealed copies of the applicant's Initiating Application and affidavit in support thereof filed on 11 June 2010 and any other document which may be considered relevant be referred to the chambers of the Chief Justice of this Court for referral to the appropriate authority of the Commonwealth of Australia for consideration of the prosecution of the respondent for a breach of section 94 of the Marriage Act 1961 (Cth).

IT IS CERTIFIED

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

IT IS NOTED that publication of this judgment under the pseudonym Hiu & Ling is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5288  of 2010

MS HIU

Applicant

And

MR LING

Respondent

REASONS FOR JUDGMENT

introduction

1. This is an application for a Decree of Nullity of Marriage.  The ground relied on by the applicant is bigamy on the basis that at the time of entering into the marriage, the respondent was married to another person and that marriage had not been dissolved.

2. The respondent has admitted the facts which are relied upon by the applicant in her application.  Accordingly, I indicated that I will grant the Decree as sought by her.

3. However, there is an outstanding issue which was strenuously argued before me on behalf of both parties.  That is whether the papers in this matter should be referred to the appropriate authority of the Commonwealth of Australia for consideration of a prosecution against the respondent for bigamy which is a criminal offence under the Marriage Act 1961 (Cth) ("the Marriage Act"). Counsel for the respondent submitted that I should not refer the papers for cultural reasons. Counsel was supported in that submission by the Counsel for the applicant.

The hearing

1. Both parties were represented by highly experienced Counsel practising in this jurisdiction.  Counsel for the applicant relied on her client's application and affidavit of evidence in chief.  Counsel for the respondent called his client to give viva voce evidence.  At the conclusion of the brief evidence, both Counsel made submissions.

2. There is no issue of credibility relevant to my determination of this matter.

Application for nullity

The applicant

1. The applicant was born in China and is presently aged 26 years.  She came to Australia in February 2002 to undertake tertiary studies and upon their completion she remained in Australia and obtained employment.  Subsequently, she obtained the status of permanent resident in Australia and became an Australian citizen in April 2010.  Other than short trips to China to visit her family, she has remained living in Australia.  She continues in the same employment.

The respondent

1. The respondent was also born in China and is presently aged 27 years.  He first came to Australia in approximately June 2000 for the purpose of study and is also a permanent resident in Australia.  He also lives in Australia and visits his family in China from time to time.

The parties' marriage

1. The parties married in Melbourne in a civil ceremony on … February 2010.  The evidence before me includes a copy of the Certificate of Marriage.  There is no child of their marriage.  The marriage has not been dissolved.

The respondent's prior marriage

1. In her affidavit of evidence in chief the applicant deposed that a friend of the parties had come to Australia to visit them from China on 1 March 2010.  On the friend's first day in Australia -

   … she told me that [the respondent] had married a former girlfriend in December 2009 in Hong Kong.  [The respondent] had travelled to China from 26 December 2009 to 11 January 2010.  He had told me he went to China to visit his family.  I told [the respondent's] mother that I had married him in February 2010.  She was shocked to hear about our wedding and did not know anything about it.

2. The applicant confronted the respondent with this information.  She deposed:

   [The respondent] admitted to me that he had married his former girlfriend in Hong Kong during his trip to China.  I only know his former girlfriend by the name [A].  [The respondent] told me that his parents and [A's] parents had arranged the marriage and that he had felt pressured to follow his parents' wishes.

3. The applicant searched for A on Facebook.  She found her account which contained wedding photos of A and the respondent.

4. The respondent did not dispute any of the facts detailed above. His Counsel made the respondent's concession of those facts clear. Further, the respondent gave sworn evidence during the hearing in respect of which I gave him a Certificate pursuant to the provisions of section 128 of the Evidence Act 1995 (Cth) ("the Evidence Act").

5. The essence of the respondent's evidence was to produce a Certificate of Marriage of a marriage which was celebrated in Hong Kong on … December 2009 and which is evidence before me.  The name of the bridegroom is the same as the name of the respondent in these proceedings, his age is 27 years, he states his marital condition as being "bachelor" and gives a residential address which, subject to a typographical error, appears to be in Melbourne.  The respondent conceded that he was the bridegroom in the ceremony which is certified in that document.

6. The Marriage Act provides that a marriage -

   88D(2) … shall not be recognized as valid … if

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

   In this matter, the term "the last-mentioned marriage" refers to the respondent's marriage in Hong Kong.  In my view the Hong Kong marriage was recognized in Australia.  Neither Counsel submitted to the contrary.

7. On the basis of all of the evidence, I find that on … February 2010 when the respondent was a party to the marriage with the applicant as certified in the evidence before me, he was married to [A] in a marriage which had taken place in Hong Kong on … December 2009 which marriage had not been dissolved.  Accordingly, I will grant a Decree of Nullity of Marriage to the applicant in respect of the marriage which took place in Melbourne on … February 2010.

Referral of papers to the attorney-general

The offence of bigamy

1. 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 an 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) quoted above is imprisonment for five years.

2. Counsel for the respondent conceded that his client had committed the offence of bigamy created by the legislation quoted in the previous paragraph.

Referral of papers - common law authority

1. In T and T (1984) FLC ¶91-588, the Full Court held (at p 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.

2. 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 p 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 or others who come before it.

3. In Malpass and Mayson (2000) FLC ¶93-061, the Full Court held (at p 87,996):

   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.

4. In Georginas v Kostrati (1988) 49 SASR 371, in the Full Court of the Supreme Court of South Australia, Von Doussa J held (at p 376):

   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.

5. Accordingly, I conclude that not only am I am entitled 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.

Privilege against self-incrimination

1. The tendering of the Marriage Certificate of the Hong Kong marriage is a vital part of the evidence which incriminates the respondent in respect of the offence of bigamy.  The fact that that was tendered by the respondent as part of his sworn evidence amounts to self-incrimination.

2. Section 128 of the Evidence Act enshrines the law with regard to self-incrimination. Subsection (1) enables a witness to object to "giving particular evidence" if that evidence -

   … may tend to prove that the witness:

   (a) has committed an offence against or arising under an Australian law … .

   It was conceded on behalf of the respondent that he has committed such an offence being the offence of bigamy.

3. Upon my determination that there were "reasonable grounds" for the objection, several options arise for both the Court and the witness as follows:

   ·          the witness may give the evidence voluntarily; or

   ·          the Court may require the witness to give the evidence; or

   ·the witness may decline to give the evidence and is not required to do so by the Court.

   In the event that the witness gives evidence voluntarily or the Court requires the witness to give the evidence, the Court must give the witness a Certificate in accordance with the section.

4. The effect of a Certificate granted pursuant to the section is as follows:

   128(7) In any proceeding in an Australian court:

   (a) evidence given by a person in respect of which a certificate under the section has been given; and

   (b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence;

   cannot be used against the person.  However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.

5. On the basis that the respondent voluntarily gave the evidence I was required to give him a Certificate in accordance with the subsection quoted in the previous paragraph.  That Certificate was in respect of the entirety of his evidence in these proceedings.  Accordingly, no part of the sworn evidence given by the respondent may be used against him in any prosecution.  That would include the Marriage Certificate tendered on his behalf.  However, in my view there is sufficient material in the applicant's evidence to enable a prosecutor to make sufficient enquiries without resort to the respondent's evidence such as may enable a prosecution to be undertaken.

Should the papers be referred?

1. As I have noted, the respondent supported the submissions made on behalf of the applicant against my referral of the papers.  The basis for the submission was that the cultural embarrassment and shame which would be brought on both the applicant and the respondent would be so significant as to create family tensions of considerable proportions.

2. I am sympathetic to the submission of cultural embarrassment and shame referred to in the previous paragraph.  My experience confirms that such embarrassment and shame would be visited on the parties as a result of any prosecution. 

3. However, the question of whether a prosecution should or should not take place for that reason is not one for me to determine.  Ultimately, that is a matter for the prosecuting authorities.  In the event that a prosecution might be considered, it is open to both parties to take whatever step she or he determines appropriate at the time.

4. In my view, which is supported by past authorities, I would act contrary to my duty as a Judge of the Commonwealth if I were to decline to refer the papers in this matter.  There is strong evidence to suggest that the respondent is guilty of a serious crime under Commonwealth law which is punishable by up to five years imprisonment.  I distinguish that offence from an offence such as a minor fraud against the revenue or the like.

Conclusions

1. I will order a Decree of Nullity of Marriage in the usual terms in respect of the marriage between the applicant and the respondent which took place in Melbourne at a Civil Ceremony Office on … February 2010.

2. The appropriate procedure is to direct that the papers in this matter be forwarded to the Chief Justice of this Court for referral to the relevant prosecuting authorities for the purpose of considering a prosecution against the respondent for a breach of section 94 of the Marriage Act 1961 in that when he participated in the ceremony referred to in paragraph 8 hereof, he was then married to another person as evidenced by the Certificate of Marriage dated … December 2009 referred to above.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  24 August 2010