KIRVAN & TOMARAS

[2018] FamCA 171

FAMILY COURT OF AUSTRALIA

KIRVAN & TOMARAS [2018] FamCA 171

FAMILY LAW – NULLITY – Application for declaration – Where wife still married at the time of the subject marriage – declaration made.

FAMILY LAW – PRACTICE AND PROCEDURE – Whether the parties should be referred to the Commonwealth Attorney-General following a declaration of nullity on the grounds of bigamy – Where it is appropriate to make the referral.

Criminal Code Act 1995 (Cth) s 6.1
Family Law Act 1975 (Cth) ss 51, 102

Marriage Act 1961 (Cth) ss 23, 23B, 23B(1), 88B(1), 88C(1)(a), 88D(1) 88G, 88G(1), 88G(3), 94, 104

Migration Act 1958 (Cth) s 5F
Marriage Regulations 1963 (Cth) reg 38

Amarnath & Kandar [2015] FamCA 1138 Malpass & Mayson (2000) FLC 93-061 P and P [Tax Evasion] (1985) FLC 91-605
APPLICANT:	Ms Kirvan

RESPONDENT: Mr Tomaras

FILE NUMBER: ADC 96 of 2018

DATE DELIVERED: 21 March 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 14 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Konieczka

SOLICITOR FOR THE APPLICANT: MK Legal & Migration

COUNSEL FOR THE RESPONDENT: Litigant in Person

SOLICITOR FOR THE RESPONDENT:

Orders

1. A declaration be made that the marriage between MS KIRVAN and MR TOMARAS solemnised at Suburb B, South Australia in 2017 is a Nullity.

2. That the Registrar do forward the documents referred to in the last paragraph of these reasons for judgment to the Commonwealth Director of Public Prosecutions.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kirvan & Tomaras has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 96  of 2018

Ms Kirvan

Applicant

And

Mr Tomaras

Respondent

REASONS FOR JUDGMENT

INTRODUCTION 

1. By Initiating Application filed 11 January 2018 Ms Kirvan (“the wife”) seeks a decree as to nullity of the marriage between her and Mr Tomaras (“the husband”) solemnised in 2017.

2. The husband appeared as a self-represented litigant and did not oppose the making of the declaration.

BACKGROUND

1. The wife was born in 1991 in Country C. She is 26 years of age. The husband was born in Country C in 1993. He is 24 years of age.

2. The parties met at a Country C community social gathering in March 2017 and it seems that they had both come from the same town and shared mutual friends.

3. The wife grew up in Country C, and travelled to India after completion of high school to study. She graduated as a medical professional in 2013 and then returned to Country C to work. She travelled to Australia on 18 November 2015 under a Student (Class TU) Higher Education Sector (Subclass 573) Visa to study for a Masters degree.

4. Her studies will be completed in July 2018 and she expects to have conferred on her a Masters degree thereafter.

5. It is the wife’s intention to make an application to remain in Australia.

6. The wife met the husband in March 2017 and commenced to cohabit on 1 July 2017. The husband and the wife underwent a marriage ceremony on in mid 2017.

7. Prior to the wife leaving Country C she married Mr D (“Mr D”) in a civil ceremony. Annexure “A” to the wife’s Affidavit filed 11 January 2018 annexes a true copy of the translated Marriage Registration Certificate from Country C dated 2015.

8. The certificate confirms that the wife and Mr D, both residents of E District, in Country C were married in 2015 “according to the social custom” with the registration of the marriage having occurred a few months later in 2015.

9. The wife contends that she is of Hindu background and Mr D is a Buddhist. There are significant cultural differences arising from their different religious backgrounds which did not meet with the apparent approval of the wife’s family. She considers at [9] of her affidavit filed 11 January 2018 that she and Mr D did not have “…a traditional marriage ceremony usually practised in my culture”.

10. The wife departed for Australia shortly thereafter and on arrival declared her marriage to the Department of Immigration and Border Protection, presumably to enable Mr D to apply for a Student Visa as a secondary applicant on 16 March 2016.

11. In April 2016 the wife and Mr D separated under unhappy circumstances. She considered that the breakdown was irreconcilable and advised the Department of Immigration and Border Protection of their separation. Mr D’s visa application was refused on 17 June 2016 because he was no longer in a spousal relationship with the wife which would have enabled him to be classed as a secondary applicant.

12. Annexure “B” to the wife’s affidavit is a copy of the visa refusal which confirms that following information being received that the wife and Mr D were no longer in an ongoing spousal relationship he did not meet the definition of a member of a family unit. Pursuant to section 5F of the Migration Act 1958 (Cth) the wife and Mr D were no longer considered to be in a marital relationship on the basis that they did not have a mutual commitment to a shared life as husband and wife to the exclusion of others, that the relationship between them is no longer genuine and continuing and that they live separately and apart on a permanent basis.

13. The wife commenced proceedings for a divorce but there were difficulties in service of the documents on Mr D and accordingly there was a substantial delay in the application for divorce being given judicial consideration.

14. It is not controversial that a divorce order was made by the E District Court on 22 October 2017.

15. The wife met the husband in March 2017 and soon thereafter she commenced to live together with him. The husband was informed as to the wife’s marital status in the following terms:-

    19.Our relationship developed and we fell in love with other [sic]. I told [Mr Tomaras] about my situation with [Mr D] and that I was still waiting for the divorce to be finalised.

16. The parties were concerned as to the cultural integrity of their cohabitation in circumstances where they were not married. They decided to marry notwithstanding that each of them knew that the wife’s marriage to Mr D was not yet formally dissolved. The wife contends at [21] of her affidavit that the parties felt that the “marriage was not valid any longer”.

17. A more detailed explanation appears at paragraph [22]:-

    In my culture a traditional marriage ceremony with family blessing is the real marriage and is more important than a civil marriage. I felt that applying for divorce in Country C and informing the [Department of Immigration and Border Protection] about the end of my relationship with[Mr D] was sufficient to invalidate my marriage with [Mr D].

18. The parties married in mid 2017. The wife’s marriage to Mr D was dissolved by court order on 22 October 2017.

19. The wife seeks a decree of nullity on the basis that at the time of her marriage to the husband in mid 2017 she was still married to Mr D.

20. The husband appeared at the hearing but was not represented.

21. He did not oppose the application for a decree of nullity. The matter was stood down to enable the husband to read the wife’s application and affidavit, and seek assistance from the duty solicitor if he elected to do so. A subsequent offer of advice was made to the husband by a visiting Senior Counsel involved in another matter before the Court. The husband did not seek that the proceedings be adjourned or that he have an opportunity to file an answering affidavit. He accepts the accuracy of the matters as expressed by the wife in her affidavit and joins with her in seeking a decree of nullity.

22. It was apparent that the husband considered the wife’s solicitor to have represented both of them.

23. The proposition was initially rejected by the wife’s solicitor who sought to minimise his involvement with the husband by conceding that the husband had attended with the wife but that the solicitor did not consider that he represented the husband.

24. The submissions of the wife’s solicitor were unconvincing. It was also apparent that the wife’s solicitor’s experience is predominantly in migration law and his involvement with the parties seemed to be concerned with an application for the parties to secure a visa that will enable each of them to remain in Australia.

25. Whilst not made clear in the wife’s affidavit, the submissions of her solicitor suggest that the application brought by her is a necessary precursor to the intended visa application.

26. I was left with the distinct impression that the application for a decree of nullity was ancillary to other applications filed and pending pursuant to the Migration Act1958 (Cth).

MARRIAGE CERTIFICATE

1. Annexure “D” to the wife’s affidavit is a copy of the Certificate of Marriage confirming that the marriage between the parties was solemnised in mid 2017 at F Street, Suburb B according to “Civil Rites”.

2. The place of residence of the parties as expressed on the certificate was the same and in terms of their separate conjugal status the certificate reflects that each of the parties were “Never Validly Married”.

3. Whilst it may have accurately described the husband’s marital status, it did not apply to the wife. It is central to her application that at all material times she was married to Mr D and was aware that the marriage remained intact until the divorce order was made on 22 October 2017.

4. In submissions, the wife’s solicitor conceded that it was likely the Notice of Intended Marriage pursuant to reg 38 of the Marriage Regulations 1963 (Cth) also listed the conjugal status of each of the parties as “Never Validly Married”.

5. There is no suggestion in the wife’s affidavit that the marriage celebrant who solemnised the marriage was aware or had been told of the wife’s marital status, that at the time of the marriage to the husband she was still validly married to Mr D and that the issue of the first marriage had been raised with the Department of Immigration and Border Protection and was the subject of a pending application for dissolution.

LEGAL PRINCIPLES

The validity of overseas marriages

1. An overseas marriage will be recognised in Australia as valid if it was valid under the local law at the time it was solemnised qv ss 88C(1)(a) and 88D(1) of the Marriage Act 1961 (Cth) (“Marriage Act”). Local law is defined in s 88B(1) to mean the law in force in the foreign country in which the marriage took place.

2. Proof of validity of an overseas marriage is facilitated by s 88G(1) of the Marriage Act. This provides that a Marriage Certificate issued by a competent authority in a foreign country is prima facie evidence of the occurrence of the marriage and the validity of the marriage.

3. The term “competent authority” is defined in s 88G(3) of the Marriage Act as being either an authority prescribed by the regulations in relation to a foreign country or part of a foreign country, or any other authority competent under the law of that foreign country to issue the original certificate or a certified copy thereof.

4. Even where a document does not qualify as a Certificate of Marriage within the meaning of s 88G, it may still be admissible as a record of marriage within the meaning of s 102 of the Family Law Act 1975 (Cth) (“the Act”). This is because a document within the meaning of s 102 of the Act is a historical recitation of an event and does not have to be an official document.

5. Section 102 of the Act provides that the Court may receive as evidence a document purporting to be either the original or a certified copy of a Certificate of Marriage alleged to have taken place in Australia or elsewhere. The section therefore enables a party to prove that the parties went through a ceremony of marriage simply by tendering a document which on the face of it states that it is an original or certified copy of the Marriage Certificate without having to prove the seal or signature appearing on the certificate is the true or official seal of the court which issued it.

6. For the avoidance of any doubt, I accept as evidence the translated Marriage Registration Certificate which forms annexure “A” of the wife’s affidavit as evidence of the occurrence of the marriage between the wife and Mr D in 2015 and registered later that year.

NULLITY OF MARRIAGE

1. Under s 51 of the Act an application for a decree of nullity of marriage must be based on the ground that the marriage is void.

2. A void marriage is of no effect in law. It is not a “marriage” at all, whether or not a decree declaring it void has been pronounced. The decree is simply a declaration, which confirms the fact that there was never a valid marriage.

3. The grounds for a decree of nullity of marriage as set out in s 23 and 23B of the Marriage Act. The grounds under which a marriage is void under s 23B(1) are as follows:-

   (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 [as defined in the Marriage Act];

   (c)by reason of section 48 the marriage is not a valid marriage [the marriage is not a valid marriage under the law of the place where the marriage ceremony took place because of the failure to comply with the law of that place about the form of the marriage ceremony];

   (d)the consent to the marriage 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)the party is mentally incapable of understanding the nature and effect of the marriage ceremony; or

   (e)either of the parties is not of marriageable age;
   and not otherwise

4. It is clear that at the time the husband and wife participated in a marriage ceremony in mid 2017, the wife was “lawfully married” to another person.

5. I am satisfied that a declaration should be made that the marriage between the husband and the wife be declared a nullity.

REFERRAL OF PAPERS TO THE ATTORNEY GENERAL

1. The Marriage Act provides for the offence of bigamy in s 94 as follows:-

   (1)A person who is married shall not go through a form or ceremony of marriage with any person

   Penalty: Imprisonment for 5 years.

   (1A)For the purpose 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.

2. Strict liability is defined at s 6.1 in the Criminal Code Act 1995 (Cth).

3. Section 104 of the Marriage Act provides that:-

   A person shall not give a notice to an authorised celebrant under section 42, or sign a notice under section 42 after it has been given, if, to the knowledge of that person, the notice contains a false statement or an error or is defective.

4. The penalty for the commission of an offence under the relevant section is six months imprisonment or five penalty points.

5. A penalty point currently means the amount of $210.

6. The parties’ Marriage Certificate clearly describes the marital status of each of the parties as “Never Validly Married”. Whilst it may properly reflect the marital status of the husband, by her own admission it does not reflect the wife’s marital status.

7. The husband also accepts the accuracy of the wife’s affidavit which contends that the parties were aware of the wife’s circumstances, that she had separated from Mr D, that a representation had been made to the Department of Immigration and Border Protection that notwithstanding they were still married, they had separated with no likelihood of a resumption of the marital relationship. The husband was also aware that the wife had filed an application for dissolution of marriage but that an order had not yet been made.

8. In P and P [Tax Evasion] (1985) FLC 91-605 Lindenmayer J was required to consider whether a finding that a party had committed offences relating to tax evasion should be in the subject of referral to the Attorney General. The following is said at 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 litigations or others who come before it.

9. In Malpass & Mayson (2000) FLC 93-061 the Full Court held at 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…

10. In Amarnath & Kandar [2015] FamCA 1138 the applicant had written “Never Validly Married” on the Notice of Intended Marriage despite her knowledge that she had previously been married in another country. In considering whether the papers should be referred, Foster J said:-

    [22]The applicant’s conduct was, at best, reckless in the extreme and, at worst, a complete and wilful disregard of her obligations at the time of her remarriage to ensure that she was legally able to enter into the ceremony. The matters discussed above clearly indicate that the applicant was well aware that she was legally married at the time of her second marriage notwithstanding her protestations to the contrary. Her explanation is inherently incredible.

11. In the present case I do not accept that the wife had any doubt as to the validity to the marriage to Mr D. Irrespective of whether it was socially acceptable or shunned by her family, she understood clearly that she had undergone a marriage ceremony as evidenced by a Certificate of Marriage. Her marriage to Mr D was at all times in the forefront of her mind. It was a relevant and necessary consideration in terms of advice to the Department of Immigration and Border Protection understanding as she did that it may result in Mr D being refused a visa to enter Australia.

12. She discussed her marriage with the husband in these proceedings. Prior to her marriage she had filed an application seeking a dissolution of marriage from the relevant Country C Court. The detail of that application as appears in an annexure to her affidavit leaves little room to suggest that the wife was mistaken as to her marital status. I have accepted the wife’s statement that her marital status was the subject of discussion with the husband. He did not seek to reject the wife’s assertion, nor did he seek an opportunity to file an affidavit that may place a different gloss on the state of his knowledge or the circumstances of their marriage.

13. It may well be that he is complicit in the wife’s misrepresentation on the Notice of Intended Marriage, representations made to the marriage celebrant and the clear inaccuracy as to her marital status set out on the Certificate of Marriage.

14. It is difficult to view the wife’s conduct and perhaps that of the husband as anything less than a wilful disregard of the requirement that she make full and frank disclosure in relation to her marital status.

1. The evidence and the manner in which the wife’s solicitor presented the application strongly supports the proposition that the wife and by implication the husband, were prepared to knowingly misrepresent the important consideration namely that at the time of the marriage ceremony the wife remained married to Mr D.

2. Whilst the Court has the discretion as to whether the papers should be referred, I consider that the conduct of the wife and the husband to be blatant in order to undergo a marriage ceremony in circumstances where they knew that it was not permissible to do so.

3. It is a matter for the relevant authorities as to whether the parties or either of them will be the subject of prosecution.

4. The following documents will be referred to the appropriate authorities for consideration:-

   i.Initiating Application filed 11 January 2018;

   ii.Affidavit of wife filed 11 January 2018;

   iii.Affidavit of service of documents on husband filed 15 January 2018;

   iv.A copy of these reasons for judgment.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 21 March 2018.

Associate: 

Date: 21 March 2018