Jain & Hingston
[2021] FamCA 644
•30 August 2021
FAMILY COURT OF AUSTRALIA
Jain & Hingston [2021] FamCA 644
File number(s): BRC17930 of 2020 Judgment of: HOWARD J Date of judgment: 30 August 2021 Catchwords: FAMILY LAW – NULLITY OF MARRIAGE – where the fraud relied upon by the applicant wife is not the kind of fraud contemplated by section 23B of the Marriage Act 1961, being neither fraud in relation to “identity” nor fraud in relation to the “nature of the marriage ceremony” – application for a decree of nullity dismissed – where the respondent husband failed to file a response – where the husband did file an affidavit in which he admitted making fraudulent statements and providing fraudulent documents – where there is no need to hear from the respondent prior to the referral of papers – where the papers are to be referred to the Commonwealth Director of Public Prosecutions in respect of the husband’s admitted fraudulent statements and fraudulent documents. Legislation: Family Law Act 1975 (Cth) s 51
Marriage Act 1961 (Cth) ss 23B, 42, 48.
Cases cited: Aird & Hamilton-Reid [2007] FamCA 4
Australian Building and Construction Commission v Parker (No. 2) [2017] FCA 1082
Gani & Drasher [2017] FamCA 475
Huda & Huda (No 2) (2020) 61 Fam LR 257
In the Marriage of Deniz (1977) 31 FLR 114
In the Marriage of Hosking [1994] FamCA 87
In the Marriage of Otway (1986) 11 FLR 99
Kennedy & Smith [2003] FamCA 136
Malpass & Mayson [2000] FamCA 1253
Moss v. Moss [1897] P. 263
Normandy Woodcutters Ltd v Simpson[2002] NTSC 43
Osman & Mourrali (1990) FLC 92-111
Simpson & Hodges [2007] NSWSC 1230
Teves III & Campomayor (1994) 18 Fam LR 844
Tirta & Lim [2012] FamCA 63Anthony Dickey QC, Family Law (Thomson Reuters, 6th ed, 2014), 161.
Number of paragraphs: 34 Date of last submission/s: 30 August 2021 Date of hearing: 30 August 2021 Place: Brisbane The Applicant attended as a self-represented litigant. There being no appearance by or on behalf of the Respondent. ORDERS
BRC17930 of 2020 BETWEEN: MS JAIN
AND: MR HINGSTON
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
30 AUGUST 2021
THE COURT ORDERS ON A FINAL BASIS:
1.That the application for a decree of nullity of dismissed.
2.That the Registrar of the Federal Circuit and Family Court of Australia forward to the Commonwealth Director of Public Prosecutions the Reasons for Judgment delivered 30 August 2021 as well as the transcript of the entire proceedings along with the exhibits (relating to those proceedings) for the consideration by the Commonwealth Director of Public Prosecutions as to whether or not Mr Hingston should be prosecuted (either in Australia or in the United Kingdom in which case the Commonwealth Director of Public Prosecutions should forward the papers to the relevant authority in that country) having regard to the findings made by the Court against Mr Hingston referred to in the Reasons for Judgment – and in particular Mr Hingston’s admissions in his Affidavit filed 19 March 2021 that he created a false document which purported to be decree of nullity made by the High Court of Justice (Family Division) in the United Kingdom.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jain & Hingston has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
A. These reasons were delivered ex tempore on 30 August 2021 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court.
The matter before the Court is an application for a decree of nullity of marriage. The applicant is Ms Jain and the respondent is Mr Hingston. The applicant was born in 1969. The respondent was born in 1970. The respondent, Mr Hingston, had been married before. He was married in 1998 to Ms B Hingston. They were married in the United Kingdom. That marriage was annulled by a decree of the High Court of Justice, Family Division, in the United Kingdom on 29 August 2012.
The applicant, Ms Jain, met Mr Hingston in the United Kingdom in July 2016. The applicant accepts that the respondent told her that he had been previously married in 1998. He also told her that almost immediately – the previous marriage was annulled and Ms Jain says that Mr Hingston told her that a decree of annulment was made in 1999. The parties in this case commenced a relationship in or about April 2017. The parties were married in 2019 at Suburb C in Queensland. This Application for Nullity was filed on 17 December 2020.
By section 51 of the Family Law Act 1975 (Cth) (“the Act”), an application under the Family Law Act for a decree of nullity of marriage shall be based on the ground that the marriage is void. It is then necessary to have regard to the Marriage Act 1961 (Cth). Section 23B sets out the grounds on which marriages are void. That section states:-
“(1) A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:
(a) either of the parties is, at the time of the marriage, lawfully married to some other person;
(b) the parties are within a prohibited relationship;
(c) by reason of section 48 the marriage is not a valid marriage;
(d) the consent of either of the parties is not a real consent because:
(i) it was obtained by duress or fraud;
(ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
(iii) that party did not understand the nature and effect of the marriage ceremony; or
(e) either of the parties is not of marriageable age;
and not otherwise.
(2) Marriages of parties within a prohibited relationship are marriages:
(a) between a person and an ancestor or descendant of the person; or
(b) between 2 siblings (whether of the whole blood or the half-blood).
(3) Any relationship specified in subsection (2) includes a relationship traced through, or to, a person who is or was an adopted child, and, for that purpose, the relationship between an adopted child and the adoptive parent, or each of the adoptive parents, of the child shall be deemed to be or to have been the natural relationship of child and parent.
(4) Nothing in subsection (3) makes it lawful for a person to marry a person whom the first-mentioned person could not lawfully have married if that subsection had not been enacted.
(5) For the purposes of this section:
(a) a person who has at any time been adopted by another person shall be deemed to remain the adopted child of that other person notwithstanding that any order by which the adoption was effected has been annulled, cancelled or discharged or that the adoption has for any other reason ceased to be effective; and
(b) a person who has been adopted on more than one occasion shall be deemed to be the adopted child of each person by whom the first-mentioned person has been adopted.
(6) For the purposes of this section:
"adopted" , in relation to a child, means adopted under the law of any place (whether in or out of Australia) relating to the adoption of children.
"ancestor" , in relation to a person, means any person from whom the first-mentioned person is descended including a parent of the first-mentioned person.”
It is said by the applicant that her consent to the marriage was not a real consent because it was obtained by fraud. The fraud that the applicant alleges relates to fraudulent paperwork that she says was submitted in order to satisfy the requirements of the Marriage Act, including section 42. That section requires that parties who intend to marry are obligated to produce to the authorised marriage celebrant various documents including a declaration in writing concerning such matters as the parties’ conjugal status, the parties’ belief that there is no legal impediment to the marriage, and such other matters as are prescribed.
Section 42(8) states that an authorised celebrant shall not solemnise a marriage unless the authorised celebrant has satisfied himself or herself that the parties are the parties referred to in the notice – if the authorised celebrant has reason to believe that a notice given under this section in relation to the marriage contains a false statement or an error, or is defective. Section 42(8)(a) and (b) state:-
“(8) An authorised celebrant shall not solemnise a marriage:
(a) unless the authorised celebrant has satisfied himself or herself that the parties are the parties referred to in the notice given under this section in relation to the marriage; or
(b) if the authorised celebrant has reason to believe that:
(i) a notice given under this section; or
(ii) a declaration made and subscribed under this section, or a statutory declaration made for the purposes of this section; in relation to the marriage, contains a false statement or an error or is defective.”
In the documentation provided to the marriage celebrant, in accordance with section 42 of the Marriage Act, the respondent included a document which purported to be, it seems, evidence that the High Court of Justice in the Family Division in the United Kingdom had granted a decree of nullity on 29 August 1999 to the husband, Mr Hingston, in respect of his first marriage to Ms B Hingston. A copy of that document is annexed to the affidavit of Ms Jain filed 17 December 2020.
This current application before the Court was served upon the respondent Mr Hingston in the United Kingdom via electronic means. I am satisfied that the initiating process was adequately brought to the attention of Mr Hingston, noting as I do that there is an affidavit of service filed by the applicant, and that document notes that the respondent signed an acknowledgment of service. Furthermore, whilst he has not actually filed a response to the application, the respondent filed a case outline on 7 June 2021 and provided what purports to be a certified copy of a document which seems to be a decree of nullity or a confirmation that a decree of nullity has issued in the High Court of Justice Family Division. This particular document I will mark today as exhibit 1. This document is confirmation that the decree of nullity obtained from the High Court of Justice in respect of the marriage between Mr Hingston and Ms B Hingston did not take effect until 29 August 2012. In addition, and of particular concern to this Court is the fact that the respondent, Mr Hingston, filed an affidavit in this Court on 19 March 2021 whereby he swore to the following:-
“2. The nullity certificate dated 1999 which I submitted to the celebrant for the notice of intended marriage was not a true certificate of nullity. My marriage to Ms B Hingston was annulled in 2012.”
This document was sworn or affirmed by Mr Hingston in the presence of a solicitor, Mr D, of the firm E Solicitors, F Street, G Town, in the United Kingdom. The document was signed on 15 March 2021, and it certainly appears on its face to be a sworn admission by the respondent to the fact that he submitted to the marriage celebrant in Australia an annulment document or a certificate of nullity which was false. It also appears to be an admission by that person that he, that is Mr Hingston, knew that the certificate of nullity that he submitted was false. In the affidavit filed by the applicant on 17 December 2020, she states, inter alia:-
“1. I married Mr Hingston on … 2019 in Suburb C, Qld, Australia. The wedding ceremony was performed by an authorised celebrant (Ms H).
2. I met Mr Hingston in July 2016 in City J, United Kingdom while I was studying in City J, UK. Mr. Hingston and I maintained a long-distance dating relationship from November 2016-April 2018 while he was living in the United Kingdom and I was living in Brisbane, Australia.
3. From April 2018 - December 2018, both Mr. Hingston and I lived in City K, United Kingdom and continued to date.
4. In September 2019, Mr. Hingston relocated to Brisbane, Australia.
5. Prior to our marriage, Mr. Hingston informed me that he had been previously married in 1998 in the United Kingdom. Mr. Hingston informed me that on his wedding night, his wife changed her mind about marrying him. As a result, they immediately separated and then annulled their marriage in 1999.
6. Mr. Hingston provided an annulment certificate dated May 1999 to me and our marriage celebrant as the required evidence of nullity for the "Notice of Intended Marriage" form that was submitted for our marriage.
7. However, I recently discovered that Mr. Hingston lied to me about his prior marriage. Mr. Hingston married and lived with his previous wife for 14 years. Mr. Hingston did not annul his marriage to her until 2012, when his wife went to live in a care home due to the progression of her terminal illness.
8. Mr. Hingston admitted to me on 11 October 2020 that he submitted a fraudulent annulment certificate to our authorised celebrant as evidence of nullity for the "Notice of Intended Marriage" form.
9. Mr. Hingston admitted that the nullity of marriage certificate was fraudulent in the presence of two other witnesses: 1) Mr L, Pastor of M Church Brisbane church 2) Ms N, another member of M Church Brisbane .
10. I believe that Mr. Hingston lied to me about his previous marriage because he was aware that I would never have consented to marry him had I known he was previously married for 14 years. Mr. Hingston was aware that due to my religious beliefs, I would not have considered it acceptable to re-marry someone after they annulled a 14 year marriage.
11. As a result of Mr. Hingston's dishonesty and the fraudulent paperwork that he submitted for our Notifice of Intended marriage form; I did not provide a valid consent to this marriage. Had I known the true length of time of Mr. Hingston's previous marriage and the date of his annulment, I would never have consented to marry Mr. Hingston.
12. I refer the court to the witness statements attached.
13. I also refer the court to the two certificates of annulment found on Mr. Hingston's computer devices which have the exact same document numbers but are dated 14 years apart as further evidence of the fraudulent nature of the annulment certificate Mr. Hingston submitted and of his dishonesty.
14. I am asking the Court to annul our marriage based on the above facts. Thank you for your consideration of this matter.”
It seems clear enough that the applicant has sworn to the fact that if she had known that Mr Hingston had been previously married for 14 years, she would not have consented to marry him. The question for consideration is whether the fraud which it is said has been perpetrated by the respondent is a sufficient basis to ground a decree of nullity. I note, for instance, what was said by Lindenmayer J in Teves III & Campomayor (1994) 18 Fam LR 844. At page 857, his Honour stated inter alia:
“A nullity decree is not to be granted lightly. Moreover, the grant of a decree of nullity is not discretionary. If the facts establish that the marriage is invalid, relief must issue.”
The applicant, Ms Jain is a self-represented litigant and has drawn the Court’s attention to the case of Deniz. In In the Marriage of Deniz (1977) 31 FLR 114, Frederico J granted a decree of nullity in circumstances where a young girl living in Australia was induced by a Turkish visitor in Australia to marry him. The parties went through a marriage ceremony, but the man in that case, it seems, had no intention of living together as a married couple with the woman, and the man used the marriage as an attempt to obtain residency in Australia. Frederico J had regard to section 23 of the Marriage Act 1961 (as the relevant section was then known), and came to the conclusion that a more broad interpretation of the word “fraud” was intended by the legislature than had been the case under the previous law.
For a long period of time prior to the decision in Deniz it had been the case that the fraud which needed to be proved in order to ground a decree of nullity was very limited. It was limited to either the identity of one of the parties to the marriage or to the nature of the ceremony. Frederico J stated from page 4, inter alia:-
“However statutory enactments have now introduced entirely new concepts, and jurisdiction is no longer derived from ecclesiastical principles. If fraud is still to be limited to the identity of a party or to the nature of the ceremony, then it would seem that the words 'or fraud' after 'duress' in Section 18(d)(i) of the Matrimonial Causes Act 1959, in Section 51(2)(d)(1) of the Family Law Act 19 V5 (as originally enacted) and now in Section 23(1)(d)(1) of the Marriage Act 1961 (as amended) are merely surplusage, for fraud as to identity or as to nature of the ceremony is essentially included in the provisions relating to mistake which are immediately following the reference to fraud in each enactment.
The legislature must have intended the words 'or fraud' to have some wider meaning, and it would follow that the Court is bound in the exercise of its jurisdiction under the Family Law Act to give effect to such wider meaning. The Court should not be detered from doing so merely by reason of there being no reported case under the superseded Matrimonial Causes Act which appears to give such effect to the words. Perhaps any previous reluctance of the Courts in this regard was influenced by difficulty in providing proper safeguards. For instance there would be general consternation if an application was granted on the basis of fraud by reason of one party deceiving the other as to being possessed of natural teeth. The case of the person who marries to gain money rank or title as distinct from the more usually professed reasons would also cause concern. Clearly the fraud relied on must be one which goes to the root of the marriage contract.
But however stringent are the limitations to be placed on the words 'or fraud' as used in the legislation, if they are to be given any meaning they must be taken to include the gross circumstances of the present case.
This is a case of consent being induced by trick, not as to identity or as to the nature of ceremony, but as to the very concept of the marriage itself. Despite the warnings in cases such as Moss v. Moss (1897 Pat 269) of the dangers of too closely equating a marriage contract with a commercial contract, this is a case in which there has been a total failure of consideration.
The Respondent has not had the slightest intention of fulfilling in any respect the obligations of marriage. He has used the unfortunate Applicant as a tool of his own convenience. His conduct amounts to a total rejection of the institution of marriage and what it stands for. He clearly deceived the Applicant into marriage for his own personal motives and with the intention of summarily rejecting her immediately after the ceremony.
In my opinion if this Court is not to protect the victim of such a deception then it would be failing to give effect to the provisions of Section 51 of the Family Law Act, and in addition it would be failing to fulfil its obligation under Section 43(a) of the Act to have regard to the need to preserve and protect the institution of marriage. Accordingly I will grant a decree of nullity of marriage, which will be a decree absolute in the first instance.”
The applicant in the present case relies upon that decision in Deniz. The difficulty in relying upon that case is that since that decision of Frederico J in 1977 there have been a large number of cases in the Family Court of Australia which have simply not followed the reasoning of Frederico J. The Court today drew to the attention of the applicant a decision of the Family Court of Western Australia, In the Marriage of Otway (1986) 11 FLR 99. In that case, McCall J declined to follow the decision in Deniz. McCall J at pages 101 and 102 stated as follows inter alia:-
“In the past once a marriage ceremony had been proved there was, and still is, a presumption of consent. The onus of proving the absence of consent rests upon the person who seeks to have the marriage annulled. What is clear from the past cases is that the fraud that is referred to, to show that there was no real consent to the marriage, does not include fraud inducing a consent. Accordingly, fraudulent misrepresentations relating to the quality of a person or as to future intentions was never regarded as sufficient to annul a marriage: Moss v Moss [1897] P 263. Nor also have mental reservations on the part of one or both of the parties to a marriage affected its validity: Silver v Silver [1955] 2 All ER 614 at 615.”
McCall J continued at page 102:
“In my view, whatever the meaning of "fraud" may be, it has so far not been extended in English law to include fraudulent representations or marriages where one party has a mental reservation concerning the future of the marriage even where such reservations are unknown to the other party. Nor, in the light of the history of the interpretation of the concept in the past, do I believe that there is sufficient statutory warrant to depart from this established interpretation. In my view the provisions of the Marriage Act were doing little more than putting into statutory form the law as it was then understood, and did not intend to liberalize or expand the meaning of "fraud". At best the separation of fraud from mistake and the qualifications attached to mistake in the sub-paragraph only clarified the fact that an innocent as well as fraudulent mistake could result in the relevant lack of consent to the marriage.”
The decision in Otway has been followed many times since. The decision in Deniz was specifically not followed by Watts J in Aird & Hamilton-Reid [2007] FamCA 4. The limited grounds in relation to the concept of fraud in this area of the law was previously confirmed by Nygh J in the Marriage of Osman & Mourrali (1990) FLC 92-111. Specifically in that case, Nygh J declined to follow Deniz. His Honour referred to Otway. His Honour specifically applied the law from the case to which I have referred, Moss & Moss, and quoted from Sir Francis Jeune at pages 268, 269. In that case, the Court stated:-
“But when in English Law fraud is spoken of as a ground for avoiding a marriage, this does not include such fraud as induces a consent, but is limited to such fraud as procures the appearance without the reality of consent. The simplest instance of such fraud is personation . . . in every case where fraud has been held to be the ground for declaring a marriage null, it has been such fraud as has procured the form without the substance of agreement, and in which the marriage has been annulled, not because of the presence of fraud, but because of the absence of consent.”
Nygh J in Osman & Mourrali at page 366 explained that when considering whether there should be a decree of annulment the Court must be satisfied that:-
“The purported consent was given to something other than a marriage or to a marriage with someone other than the person physically standing at the altar.”
As noted, in the decision in Osman & Mourrali, Nygh J – specifically at pages 364 and 365 – declined to follow the decision in Deniz. Subsequent to that decision in Osman & Mourrali, Lindenmayer J In the Marriage of Hosking [1994] FamCA 87 came to the conclusion, essentially, that in the absence of evidence that there was fraud as to the identity of the other party or as to the ceremony itself, then there ought not be a decree of nullity granted. In more recent times, as I noted earlier, Watt J in Aird & Hamilton Reed specifically declined to follow Deniz, but did follow the more conventional approach.
It is that orthodox approach as explained by Nygh J in Osman & Mourrali and as explained by Lindenmayer J In the Marriage of Hosking which has been consistently followed by the Judges of this Court for a very long time. The mere fact, for instance, that both parties may in fact be consenting to a decree is not sufficient. The Court must be satisfied that there is some proper basis for granting the decree. This point was made by Rees J in a case called Tirta & Lim [2012] FamCA 63 at paragraph 1:-
“The application before the court is an application by Mr Tirta (“the husband”) for a decree of nullity in relation to his marriage to Ms Lim (“the wife”). The marriage was solemnized on … March 2011 in Sydney. The wife consents to the application for a decree of nullity but her consent is insufficient to ground the decree and I must be satisfied, on the evidence, that a ground for the relief sought has been established. As Justice Lindenmeyer said in In the Marriage of Theves III and Campomeyar (1994) 18 Fam LR 844, ‘a nullity decree is not to be granted lightly. Moreover the grant of a decree of nullity is not discretionary. If the facts establish the marriage is invalid, relief must issue.’”
In 2017, Tree J in a decision called Gani & Drasher [2017] FamCA 475 declined to follow Deniz and preferred to follow the orthodox position as stated by Nygh J in Osman & Mourrali and as stated by Lindenmayer J in Hosking & Hosking. At paragraph 25, his Honour stated:-
“25. The fraud relied upon by the husband in this case was not as to the identity of the wife or as to the nature of the ceremony which he undertook in 2008. Therefore unsurprisingly, the evidence does not establish fraud within the meaning of that term in s 23(B)(1)(d)(1). However to cover the eventuality that fraud of the kind relied on by the husband can be considered under s 23B, I should record that I am nonetheless not satisfied there was any fraud practised upon the husband. Particularly (and bearing in mind that the onus is on the husband):
·The husband’s traverse of the wife’s version of their January/February 2007 face-to-face conversation in Melbourne is somewhat equivocal. Initially he points out that paragraph is contradictory to an earlier paragraph (which he subsequently successfully objected to) but then does not specifically deny the conversation, instead rather saying “I have never been told about her legally married status…” To my mind that is consistent with him being aware of a Hindu ceremony which had not been followed up by the more traditional series of receptions;
·The husband’s failure to otherwise challenge the wife’s version of events on that occasion by cross-examination at trial is a matter which I give some, but not great, weight;
·I am satisfied that thereafter indeed the husband and family did stay with the wife’s parents in India, but that any coldness which he may have experienced from those visits was likely associated with her family’s perception that her earlier marriage had indeed brought shame on the family;
·I am not satisfied that the wife’s solicitor’s conduct is indicative of any attempt to continue to conceal the wife’s earlier marriage from the husband. “
The argument put forward on behalf of the applicant (who was the husband) in Gani & Drasher was that if he had known of an earlier marriage and divorce by the wife, he would not have consented to marry her. Apart from anything else, Tree J was of the view that to the extent that there was any fraud, it was not fraud sufficient to ground a decree of nullity. Tree J also made mention of a decision of the Full Court in Kennedy & Smith [2003] FamCA 136 which his Honour said did not appear to support the decision in Deniz but preferred the orthodox view of Nygh J and Lindenmayer J in Osman and Hosking respectively. Anthony Dickey QC in “Family Law” (Thomson Reuters, 6th ed, 2014) provides a helpful analysis of the relevant cases. I note in particular paragraphs 10.560, 10.570, 10.580. In those paragraphs Dr Dickey considers the decisions In theMarriage of Deniz and In theMarriage of Otway, and Dr Dickey stated at page 161 of his text, inter alia:
“Subsequent cases at first instance have left no doubt that the interpretation of ‘fraud’ in the Marriage of Otway is to be preferred to that in the Marriage of Deniz.”
In the case currently before the Court, there appears to be evidence and a sworn admission by Mr Hingston that he submitted a false document and made a false statement in the form of the decree of nullity purportedly dated 1999.
When the matter was here before the Court, on 14 June 2021, the Court noted to the self-represented applicant that it would be worthwhile to file a more comprehensive case outline and, in fact, this was done on 25 August 2021. Also, when the matter was before the Court on 14 June, I suggested to the self-represented litigant (ie, the applicant) that she should consider the cases of Osman & Mourrali, as well as Hosking & Hosking and Tirta & Lim and, in her written submissions, filed 25 August, the applicant has noted that she considers that those cases can be distinguished.
There is not much doubt that the cases in question have different facts to the current case before the Court. The question relates more to the general rule and the general principle, which I have also called the orthodox view, in relation to the fraud, which is contemplated by section 23B of the Marriage Act. Again, today, I had my Associate provide the applicant with a copy of the decision in Otway for her consideration, and the applicant made some submissions about that, as well. I have not provided copies of every case to the applicant. It seems to me that the cases that were suggested to her and the cases that were provided to her today, copies of which included Deniz, as well as Otway, were sufficient to fulfil the Court’s obligation to a self-represented litigant.
The very clear principle enunciated in the cases to which I have referred, including Otway, Osman & Mourrali and Hosking is to the effect that the fraud contemplated by section 23B and the fraud that is required to be proved before that would be sufficient to ground a decree of nullity is fraud in relation to the identity of the person or the nature of the marriage ceremony. It is argued by the applicant today that the provision of fraudulent paperwork by the respondent to the marriage celebrant is sufficient to distinguish the current case before the court from the other cases to which I have referred. I drew the applicant’s attention to section 48 of the Marriage Act. This is because the applicant had submitted that the documentation provided with the fraudulent paperwork was submitted by the respondent in accordance with section 42 of the Marriage Act, and the applicant maintains that the marriage should never have been solemnised.
The difficulty is that section 48 specifically deals with this kind of situation. Section 48 states:-
“Certain marriages not solemnised in accordance with this Division to be invalid
(1) Subject to this section, a marriage solemnised otherwise than in accordance with the preceding provisions of this Division is not a valid marriage.
(2) A marriage is not invalid by reason of all or any of the following:
(a) failure to give the notice required by section 42, or a false statement, defect or error in such a notice;
(b) failure of the parties, or either of them, to make or subscribe a declaration as required by section 42, or a false statement, defect or error in such a declaration;
(c) failure to produce to the authorised celebrant a certificate or extract of an entry or a statutory declaration as required by section 42, or a false statement, defect or error in such a statutory declaration;
(d) failure to comply with any other requirement of section 42, or any contravention of that section;
(e) failure to comply with the requirements of section 44 or 46;
(f) failure to comply with the requirements of section 13.
(3) A marriage is not invalid by reason that the person solemnising it was not authorised by this Act to do so, if either party to the marriage, at the time the marriage was solemnised, believed that that person was lawfully authorised to solemnise it, and in such a case the form and ceremony of the marriage shall be deemed to have been sufficient if they were such as to show an intention on the part of each of the parties to become thereby the lawfully wedded spouse of the other.”
A marriage is not invalid by reason of failure to give the notice required by section 42, or by reason of a false statement in such a notice.
The applicant argued today that section 48 doesn’t apply because it wasn’t a false statement – it was fraudulent paperwork. That’s as I understood the oral submission made today. One of the difficulties I have with that argument is that – in the applicant’s own case outline, on page 2, beside the date September 2019, the applicant herself refers to the documents provided by the respondent to the marriage celebrant as containing:-
“…the false statement that his first marriage was annulled on 29 August 1999.”
It’s clear that the false statement in writing provided by Mr Hingston to the marriage celebrant is a “false statement” as that term is contemplated in section 48(2)(a) of the Marriage Act. Specifically, therefore, I note that section 48, subsection (2) of the Act disposes of the argument put forward by the applicant relating to false documentation provided to the marriage celebrant.
The ambit within which the Courts have interpreted section 23B and the concept of fraud in relation to applications for nullity has been very limited for a very long time with good reason. There is no suggestion that there was any fraud perpetrated by the respondent in relation to his identity. There is no evidence of fraud as to the nature of the ceremony performed in Suburb C in 2019. It was a marriage ceremony and known to be one by both the applicant and the respondent. The application for a decree of nullity is therefore dismissed.
One further matter
I indicated during argument that the affidavit sworn by the respondent which appears to make an admission that he provided a false document or made a false statement to the marriage celebrant requires some further consideration by the Court. I had contemplated providing to the respondent an opportunity to be heard in relation to this matter. What I have contemplated is whether or not the Court papers should be referred to the Commonwealth Director of Public Prosecutions for further review and investigation, as to whether or not a charge could or should be laid against Mr Hingston in relation to his apparent admissions of providing a false document in the nature of the decree of nullity of marriage, in which it was claimed that his first marriage had been annulled as at the date of 29 August 1999.
But I do not think it necessary for the Court to delay referring these papers to the relevant authority. The Court is not obligated to hear from a party before referring documentation. In the decision of Huda & Huda (No 2) (2020) 61 Fam LR 257 I reviewed the authorities in relation to the referral of papers to the Commonwealth Director of Public Prosecutions. I note cases such as Malpass & Mayson [2000] FamCA 1253. For present purposes of more significance I note a decision of Flick J of the Federal Court of Australia in the Australian Building and Construction Commission v Parker (No. 2) [2017] FCA 1082. Flick J in that decision had referred to a New South Wales case, the case of Simpson & Hodges [2007] NSWSC 1230, where Hall J stated at paragraphs 268 and 269:-
“268. A judicial officer who believes that offences have been committed is under a duty to refer the proceedings to the relevant authority: [Normandy Woodcutters Ltd v Simpson [2002] NTSC 43 at [53] per Mildren J]. Accordingly, where evidence is given in proceedings in this Court that reasonably suggests that an offence has or may have been committed in relation to proceedings conducted before it, the Court has a duty to refer the proceedings. As Mildren J observed in [Normandy Woodcutters Ltd v Simpson [2002] NTSC 43], referring the papers is not an exercise of judicial power and no findings are made and no injury to anyone’s reputation arises by a mere referral. Nor, as his Honour observed, is the judicial officer required to give anyone an opportunity to be heard in such a matter.
269. In light of the evidence to which I have referred and for the above reasons, the Registrar of this Court will be directed to forward a copy of these reasons for judgment to the Director of Public Prosecutions and to make available, as may be required, the full transcript of these proceedings and the exhibits for inspection by any officers authorised in that behalf by the Director of Public Prosecutions.”
In the current case before the Court, I note specifically that Hall J in the Simpson & Hodges decision had relied upon a Supreme Court of the Northern Territory decision in Normandy Woodcutters Ltd v Simpson[2002] NTSC 43. Flick J in the ABCC case supported Hall J’s observations in Simpson & Hodges to the effect that the referral of papers “is not an exercise of judicial power and no findings are made and no injury to anyone’s reputation arises by a mere referral”. I specifically rely on the decision of Flick J and the decision of Hall J in the ABCC case and the Simpson & Hodges cases respectively when considering that this Court is not required to give anyone an opportunity to be heard before the referral of papers.
For clarity and by way of further explanation, if the respondent in this case had actually ever filed a response, and if he had bothered engaging in the proceedings, if, for instance, he had turned up today or sought leave to appear by telephone, which I note would have been granted because he is apparently currently in the United Kingdom, then I would more than likely have called upon him for a submission in relation to whether or not I should refer the papers to the Commonwealth Director of Public Prosecutions. He has chosen not to file a response, he has chosen to not file anything other than a sworn affidavit confirming the provision of the false statement and the false decree of nullity.
In the circumstances I do not think it’s necessary or appropriate for the Court to delay the matter any further and seek a submission from him as to whether or not the papers should be referred to the Commonwealth Director of Public Prosecutions for consideration as to whether or not they should lay a charge against Mr Hingston in respect of the provision by him of a false document which he represented to the marriage celebrant was a decree of nullity of the High Court of Justice in the Family Division dated 1999.
It is a matter for the Commonwealth director of Public Prosecutions as to what they may or may not do. It may or may not involve a prosecution in this country, it may involve a prosecution in the United Kingdom, given that the document purports to be a document of the High Court of Justice. These are matters for the Commonwealth Director of Public Prosecutions to consider. I will be referring the papers to the Commonwealth Director of Public Prosecutions for the reasons stated.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 17 September 2021
7
2