Kefel and Efstani

[2016] FamCA 515

FAMILY COURT OF AUSTRALIA

KEFEL & EFSTANI [2016] FamCA 515

FAMILY LAW – NULLITY – Where bigamous marriage – Where applicant has no knowledge of the respondent’s current whereabouts – Where appropriate to proceed on an ex parte basis – Where declaration of nullity - Where respondent’s conduct an offence under the Marriage Act 1961 – Whether the respondent’s conduct should be referred to the Chief Justice of the Family Court following the declaration of nullity – Where appropriate to refer the matter to the Chief Justice for consideration.

Marriage Act 1961 (Cth) – s 23B(1), 94

Hiu & Ling (2010) FamCA 743

APPLICANT: Ms Kefel

RESPONDENT: Mr Efstani

FILE NUMBER: PAC 2633 of 2016

DATE DELIVERED: 10 June 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 10 June 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: McAuley Hawach Lawyers

Orders

1. A declaration be made that the marriage between the Applicant Ms Kefel and the Respondent Mr Efstani conducted at Suburb D in the State of New South Wales on 30 January 2010 is a nullity.

2. The following documents be referred to the Chief Justice for consideration:

   (a)       The Initiating Application filed on 9 June 2016;

   (b)       The affidavit of the Applicant Ms Kefel filed on 9 June 2016;

   (c)       Copy of Exhibit A - Divorce Order dated 10 May 2012;

   (d)       Copy of reasons for judgment in this matter.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kefel & Efstani 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 2633  of 2016

Ms Kefel

Applicant

And

Mr Efstani

Respondent

REASONS FOR JUDGMENT

1. The applicant wife in these proceedings seeks a declaration that the marriage between her and the respondent husband conducted on 30 January 2010 be declared a nullity.

Ex Parte

1. The respondent husband does not appear, and for reasons more particularly set out in the affidavit of the applicant relied on and filed on 9 June 2016, she’s unaware as to the husband’s present circumstances.

2. Exhibit C before the Court is email correspondence between the applicant’s solicitor and the former solicitors that were on the record for the respondent in the context of property proceedings between him and his previous wife. Those solicitors say they no longer act on his behalf and have had no contact with him for some years.

3. However, by reason of the evidence that will be detailed below, it’s appropriate that the Court deal with the application by the wife on an ex parte basis, as, clearly, she is entitled to the relief sought by her, and it would be difficult to imagine what submissions contrary to a declaration of nullity could be made by the respondent husband.

Nullity

1. The applicant wife was born in 1985.  The respondent husband was born in 1972. 

2. The parties, after marriage, separated in mid-2011, and since then, the applicant has taken no steps to either file an application for dissolution of marriage or seek a declaration of nullity in the circumstances that have now come to her attention.

3. The respondent husband, in 2007, married one Ms B in a ceremony that took place on C Town, Queensland.  Exhibit A before the Court is the divorce order in relation to that marriage, being a determination by the Registrar made on 10 May 2012, on the application of the husband, in those proceedings, for the divorce order.  

4. Inherent in the divorce order is a finding that the marriage of the husband and his previous wife in 2007 was a valid marriage, and the Court had jurisdiction to make the order for divorce. 

5. In relation to the present marriage, there are no children.

6. Section 23B(1) of the Marriage Act 1961 (Cth) (“the Marriage Act”) provides that, inter alia, a marriage is void where either of the parties is, at the time of the marriage, lawfully married to some other person.

7. It is patently clear that, at the time of the respondent husband marrying the present applicant in 2010, he was married to one Ms B by reason of the ceremony in 2007, with that marriage not being dissolved by a divorce order until 10 May 2012.

8. It is noted on the current marriage certificate of the applicant and respondent that the respondent husband asserts, quite inappropriately and incorrectly, that his conjugal status in 2010 was “never validly married”.

9. Clearly, the applicant is entitled to the relief that she seeks, and a declaration will be made that the marriage between the applicant and the respondent conducted at the Suburb D in 2010 is a nullity.

Offence of Bigamy

1. Section 94 of the Marriage Act provides for the offence of bigamy. The penalty for such offence is imprisonment for five years.

2. It is noted, as said above, that on the marriage certificate relating to the present marriage in 2010, the respondent husband described himself as “never validly married”. That assertion, on the evidence before this Court, is blatantly false and simply appears to have been made to facilitate his marriage to the present applicant.

3. As a consequence, it’s incumbent upon the Court to consider whether the papers in these proceedings should be referred via the Chief Justice of this Court to the Commonwealth Attorney-General, so as to give consideration as to whether the respondent should be charged with the offence referred to.

4. The considerations touching upon whether the papers should be so referred were considered by Mushin J in Hiu & Ling [2010] FamCA 743:

   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 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.

   17.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

   18.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.

   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 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.

   20.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.

   21.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.

   22.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.

5. It has been the usual practice of this Court to request the Registrar of this Court to refer papers to the Attorney-General for consideration for prosecution.  More recently, the Court is now required to refer papers to the Chief Justice of the Family Court of Australia for appropriate consideration as to such referral.

6. The respondent’s conduct in relation to his subsequent marriage to the present applicant was, in the absence of any explanation by him, reckless in the extreme and, at worst, a complete and wilful disregard of his obligations at the time of his remarriage to ensure that he was legally able to enter into a ceremony of marriage.

7. Whilst it is noted that the Court has a discretion as to whether papers should be referred via the Chief Justice to appropriate authorities, it is considered appropriate that the papers be so referred and the question as to whether the respondent is to be prosecuted be dealt with on the recommendation of the Chief Justice to the relevant authorities.

8. Accordingly, it is directed that the following documents be referred to the Chief Justice for consideration:

   a)The initiating application filed on 9 June 2016;

   b)The affidavit of the applicant filed on 9 June 2016;

   c)A copy of Exhibit A; and

   d)A copy of these reasons for judgment. 

9. Otherwise, as has been said, the applicant is entitled to the relief sought by her, and the Court makes orders as set out at the forefront of these reasons for judgment.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 10 June 2016.

Associate: 

Date:  10 June 2016