Kailash and Manjalkar (No 2)

[2013] FamCA 592

FAMILY COURT OF AUSTRALIA

KAILASH & MANJALKAR (NO 2) [2013] FamCA 592

FAMILY LAW – PRACTICE AND PROCEDURE – following a declaration of nullity on the grounds of bigamy, consideration as to whether or not the papers should be referred

Hiu & Ling [2010] FamCA 743

APPLICANT: Ms Kailash

RESPONDENT: Mr Manjalkar

FILE NUMBER: SYC 5025 of 2012

DATE DELIVERED: 13 August 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 21 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Carp

SOLICITOR FOR THE APPLICANT: Parish Patience Lawyers

SOLICITOR FOR THE RESPONDENT: Litigant in person

Orders

1. The Registrar is to forward the documents referred to in the last paragraph of these Reasons to the Director of Public Prosecutions.

IT IS NOTED that publication of this judgment by this Court under the Kailash & Manjalkar 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 SYDNEY

FILE NUMBER: SYC 5025 of 2012

Ms Kailash

Applicant

And

Mr Manjalkar

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. In an ex tempore judgment delivered on 21 March 2013 I made (inter alia) a declaration that the marriage between the applicant and the respondent conducted at B Suburb, New South Wales on 26 June 2011 was a nullity. The basis of that decision was that the applicant had entered into a bigamous second marriage. At that time I reserved my decision in relation to whether or not the papers in the matter should be referred.

2. In Hiu & Ling [2010] FamCA 743, Mushin J considered, in the context of a bigamous marriage, whether to refer the papers. That case provides a useful summary of the law:

   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

   3.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.

   4.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.

   5.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.

   6.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.

THE SITUATION IN THIS CASE

1. As I have previously set out in my judgment of 21 March 2013, the applicant married a man in Country D on 3 December 2007.

2. Whilst knowing that she had not been “officially” divorced from that man, the applicant went through a second ceremony of marriage on 26 June 2011 at B Suburb, New South Wales.

3. In the applicant’s supplementary affidavit sworn 20 March 2013 (and relevant to the issue in respect of the referral of the papers), the applicant says as follows:

   2.I am a citizen of [Country D]. I was born in [City E], although I grew up in the village of [F], which is at the edge of the [City E Valley], outside the city of [City E]. I later returned to [City E] to live.

   3.I am [G]. The [G] are one of over thirty tribal groups native to [Country D]. It is [G] tradition for men to have more than one wife. For instance in my family two of my aunts are married to the same man. One of my uncles (who has died) had two wives. Other men in my village have more than one wife.

   4.Also, in [G] society a marriage is considered to be over when the husband and wife separate and live apart from each other for a time. So far as I know, no particular period is necessary. It is just that after some time apart the marriage is considered to be over. A marriage is also considered to be over if the wife starts living with another man.

   5.I married [Mr H] on 3 December 2007 in [Country D]. The marriage did not go well. We argued, and separated soon after we arrived in Australia in November 2008.

   6.Soon after that I started a relationship with [Mr Manjalkar], who is also [from Country D]. In those circumstances, in my culture the marriage is considered to be over, and I did not know that it would be any different in Australia. Also, as deposed to in my affidavit of 16 August 2012 I [sic] by the time of my marriage to [Mr Manjalkar] I had been living separately to [Mr H], my first husband for more than two years, and I thought that my marriage was over for that reason also.

SUBMISSIONS AS TO WHY THE PAPERS SHOULD NOT BE REFERRED

1. The lawyer for the applicant submitted that there were public policy reasons why I would not refer the papers.

2. It was submitted that I should find, based on the evidence from the applicant’s first husband and Prof C, that polygamy is accepted in Country D and that a divorce in Country D is not a formal process.

3. The applicant gave evidence that she thought because she had been separated from her first husband for almost two years and that that marriage was no longer valid. The applicant’s first husband gave oral evidence that his understanding is that in Country D if a husband and wife do not stay in the same house for a period of up to a year then they are considered divorced. He did not say why he had waited until he was formally divorced before marrying his current fiancée.

4. The applicant grew up in the village of F which is located west of City E, in an isolated valley. Prof C refers to an anthropological work by Kirkpatrick (published in 1811) to the effect that at that time women in the applicant’s village “may in fact have as many husbands as they please, being at liberty to divorce them continually on the slightest pretences”. The Professor comments:

   Though I feel reasonably confident that this statement was, even for as long ago as 1811, somewhat exaggerated, yet today, after more than a century and a half of greatly increased pressures towards conformity to orthodox Hindu sexual morality, most [G] women still retain their traditional rights to elopement, divorce and re-marriage, including the re-marriage of widows. 

5. The Professor further refers to a study in 1981 which indicated that many of the social and ideological transformations that have taken place in City E have had relatively little impact in remote places like Village F and that earlier descriptions of society in the applicant’s village may still be accurate today. The Professor also refers to the study which he says concludes that women as well as men can marry a number of times without loss of status and that divorce and separation is very easy. He says:

   If a woman wants to end her marriage she simply leaves her husband and returns to her natal home and stays away indefinitely. Eventually the husband usually takes another wife, and the departed wife gets married again, either by eloping or by her family arranging another marriage for her.

   The Professor comments that women are even encouraged to refrain from having children soon after marriage in order to make it easier for them to leave the husband and find another if the marriage does not suit them.

6. The Professor however went on to say that experience in relation to contemporary urban Country D is in marked contrast to the position as he has described it in the applicant’s village of birth. The Professor expresses the opinion that the applicant’s explanation (that is that she thought that her first marriage was no longer in existence) was certainly plausible.

7. Next the lawyer for the applicant submitted, as a public policy matter, people should be encouraged to approach the Family Court to set the record straight and that it would dissuade other persons in the applicant’s position from coming to the court to regularise their status in Australia if the papers were referred. It was submitted that that would have the effect of creating what would be “a parallel system of marriage, underground, to the Marriage Act [1961 (Cth)] and would tend to undermine the Marriage Act”. It was also put that a submission of the papers would undermine the principles set out in s 43 Family Law Act 1975 (Cth). Section 43(1)(a) requires that:

   The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act, shall, in the exercise of that jurisdiction, have regard to:

   (a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life.

8. It was unclear to me as to which of the applicant’s two marriages the lawyer for the applicant was suggesting that a non referral of the papers would protect.

9. The difficulty I have with the idea that the applicant was an unsophisticated woman who came from a remote village in Country D is that:

   14.1.the applicant came to Australia in November 2008 and has engaged in study in Australia since that time; and

   14.2.the applicant lived in Australia for a period of 2 ½ years before she went through the ceremony with her second husband.

10. There is another difficulty for the applicant that emerges from the evidence.

11. The marriage certificate from the second ceremony (which is exhibit 1) records that the bride’s conjugal status was “never validly married”. When the matter was first before me I gave the solicitors for the applicant leave to issue a subpoena to the Registrar of Births, Deaths and Marriages for any documents relevant to the registration of the marriage certificate in respect of the second marriage. The applicant has in fact signed three times upon two separate documents declaring she had never been validly married.

12. On the document to which the applicant refers, she has placed her signature on a relatively uncluttered page below a statement:

    I, [THE APPLICANT’S NAME], STUDENT, declares that

    I am a “PERSON WHO HAS NEVER BEEN VALIDLY MARRIED”....

13. In her affidavit sworn 20 March 2013, the applicant says:

    7.Before my marriage to [Mr Manjalkar] we had an interview with the marriage celebrant. My English is fair, but I did not understand everything she said. I cannot exactly remember the questions that she asked me about being married before, but I understood her to ask whether if I had been married in Australia.

    8.I annex hereto the “Certificate of Marriage” between myself and [Mr Manjalkar], and also the Declaration that I made prior to the marriage. My signature appears on both documents. The heavy handwriting in capitals is not in my handwriting, or in [Mr Manjalkar’s]. I believe it is the handwriting of the marriage celebrant.

14. The applicant did not call the marriage celebrant. The applicant asserts that her memory of the question asked by the marriage celebrant was whether or not she had ever been validly married “in Australia”. Without hearing from the marriage celebrant, I would not accept that the marriage celebrant would ask a question about that topic which was confined in that manner.

15. By providing a maximum penalty of imprisonment for five years, the Parliament has established that going through a form of ceremony of marriage with another person, whilst being married, is a serious offence.

16. It has not been suggested that any of the statutory defences apply. It is not for me to further investigate or express an opinion about whether or not the applicant’s explanation is sufficiently plausible to preclude any serious charges being brought against her.

17. It is appropriate for me to refer the file to the relevant authority. I request the Registrar do so.

18. The following documents should be forwarded:

    23.1.Initiating application filed 24 August 2012

    23.2.Applicant’s affidavit sworn 16 August 2012

    23.3.Affidavit Mr H sworn 14 August 2012

    23.4.Affidavit Mr Manjalkar sworn 7 August 2012

    23.5.Applicant’s affidavit sworn 17 December 2012

    23.6.Affidavit Prof C sworn 20 March 2013

    23.7.Applicant’s affidavit sworn 20 March 2013

    23.8.Ex tempore reasons for judgment delivered 21 March 2013

    23.9.A copy of these Reasons

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 13 August 2013

Associate: 

Date:  13.8.13