PEREIRA & GANGUMI
[2019] FamCA 121
•8 March 2019
FAMILY COURT OF AUSTRALIA
| PEREIRA & GANGUMI | [2019] FamCA 121 |
| FAMILY LAW – NULLITY – Pre-existing marriage to another person. FAMILY LAW – EVIDENCE – Admissibility of the copy of a document – effect of a seal to establish a document produced by a foreign government – public document – drawing of inferences from a document in order to apply the provisions of the Evidence Act 1995 (Cth) – business records – effect of a Certificate of Divorce issued pursuant to s 56 of the Family Law Act 1975 (Cth). |
| Family Law Act 1975 (Cth) ss 52 and 56 Evidence Act 1995 (Cth) Dictionary Part 1 “public document”, Dictionary Part 2 clause 1 “References to business”, ss 48(1)(b), 69(1)-(2), 150(1), 156(1) and 183 |
| Australian Securities and Investment Commission v Rich (2005) 216 ALR 320 |
| APPLICANT: | Mr Peirera |
| RESPONDENT: | Ms Gangumi |
| FILE NUMBER: | CAC | 1057 | of | 2018 |
| DATE DELIVERED: | 8 March 2019 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 11 September 2018 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Robb & Associates Solicitors |
| SOLICITOR FOR THE RESPONDENT: | No attendance |
Orders
The marriage solemnised at Suburb D New South Wales in March 2013 between the parties is declared to be absolutely null and void.
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 Pereira & Gangumi 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 CANBERRA |
FILE NUMBER: CAC 1057 of 2018
| Mr Peirera |
Applicant
And
| Ms Gangumi |
Respondent
REASONS FOR JUDGMENT
The Applicant Husband is Mr Peirera, born in Nepal in 1985. The Respondent Wife is Ms Gangumi, born in Country C in 1984. The Husband and Wife purportedly married in March 2013 in Suburb D, in New South Wales, Australia. The parties have a child together, X, who was born in 2015. The parties together seek a declaration of nullity of the marriage.
The Husband says that at the time of the marriage to the Wife he unknowingly was still in a marriage with Ms Tani.
The Husband’s first marriage
The Husband and Ms Tani’s marriage ceremony was in the E District, Nepal in May 2008. Together they moved to Australia in September 2008 and remained living together until 2010. In 2011 Ms Tani sought a divorce from the Husband.
The Husband understood that Ms Tani attended Nepal in or about 2012 to obtain the divorce and provided him with a Divorce Certificate dated December 2012, issued by the Government of Nepal.[1]
[1] ARP-3 of the tender bundle
The Husband’s application for a Partner Visa
On 17 April 2013 the Husband applied for a Partner Visa for Ms Gangumi. On 20 November 2014 the Husband was notified by the Department of Immigration and Border Protection that:
The department has received confirmation from the [Nepal] Metropolitan Office that the Divorce Registration Certificate containing information about the divorce of [Mr Peirera] and [Ms Tani], is a fraudulent document. The [Nepal] Metropolitan Office also confirmed that there is no divorce record registered according to the date and registration number that appears on the certificate.[2]
[2] ARP-4 of the tender bundle
By letter dated 19 March 2018 the Nepal Metropolitan Office advised that the Husband’s marriage to Ms Tani had not been dissolved.[3]
[3] ARP-5 of the tender bundle
If it is the case that the marriage between the Husband and Ms Tani was still on foot as at … March 2013, the date of the purported marriage to Ms Gangumi, then s 23B(1)(a) of the Marriage Act 1961 (Cth) has application:
(1)A marriage to which this Division applies (which includes by virtue of s 23A all marriages solemnised in Australia) 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;
Proof that the marriage between the Husband and Ms Tani was then in existence will result in the marriage with Ms Gangumi being void. If that marriage is void then the parties are entitled to a decree of nullity pursuant to s 52 of the Family Law Act 1975 (Cth) which provides that:
An application under this Act for a decree of nullity of marriage shall be based on the ground that the marriage is void.
Is there proof that the marriage to Ms Tani was in existence as at March 2013?
The Husband has provided, at Exhibit H1, a copy of the Marriage Registration Certificate between himself and Ms Tani of … May 2008, produced by the Department of Civil Registration, Ministry of Federal Affairs and Local Development, Nepal.
The copy of the document is admissible to prove the marriage by virtue of the complementary operation of a number of provisions in the Evidence Act 1995 (Cth) (‘the Evidence Act’).
Firstly, s 48(1)(b) allows tendering a document that:
(a)is or purports to be a copy of the document in question; and
(b)has been produced, or purports to have been produced, by a device that reproduces the contents of documents
The effect of this provision is that it allows the tender of the copy produced by the husband if the original document is otherwise admissible.
A public document is defined in part by the Evidence Act to mean a document that:
(b) forms part of the record of the government of a foreign country.
The definition of business contained in the Evidence Act includes:
(c) an activity engaged in or carried on by the government of a foreign country.
By virtue of the operation of s 156(1) of the Evidence Act the original document is a public document:
(1)a document that purports to be a copy of, or an extract from or summary of, a public document and to have been:
(a)sealed with the seal of the person who, or a body that, might reasonably be supposed to have the custody of the public document; or
(b)certified as such a copy, extract or summary by a person who might reasonably be supposed to have custody of the public document;
is presumed, unless the contrary is proved, to be a copy of the public document, or an extract from or summary of the public document.
By virtue of the operation of s 150(1) of the Evidence Act:
(1)if the imprint of a seal appears on the document purports to be the imprint of:
(d)a seal of the state, territory or a foreign country; or
(e)the seal of the body (including a court or tribunal), or a body corporate, established by law of the Commonwealth, a territory or a foreign country
it is presumed, unless the contrary is proved, that the imprint is the imprint of that seal, and the document was duly sealed as it purports to have been sealed
The original document may, by operation of s 150, thereby be taken to have been sealed, and accordingly by operation of s 156, presumed to be an extract from or summary of the public document. It may then be taken to have formed part of an activity engaged in or carried on by the government of a foreign country and thereby within the definition of business pursuant to the definitions within the Evidence Act.
Section 69 of the Evidence Act provides an exception to the hearsay rule in relation to business records. It relevantly provides that:
(1)this section applies to a document that:
(a)either:
(i)is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or
(ii)at any time was all formed part of such a record; and
(b)contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.
(2)The hearsay rule does not apply to the document (so far as it contains representation) if the representation was made:
(a)by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or
(b)on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.
Section 183 of the Evidence Act allows the drawing of inferences in relation to a document as follows:
If a question arises about the application of the provision of this act in relation to a document or thing, the court may:
(a)examine the document or thing; and
(b)draw any reasonable inferences from it as well as from other matters from which inferences may properly be drawn.
The content of the document, being authored by the Office of Local Registrar allows inference to be drawn that the registrar might reasonably be supposed to have personal knowledge of the contents of the register.
Accordingly the original document, and the copy of the document, provides proof of the marriage between the husband and Ms Tani in approximately 2007 (noting the age of the Husband at the time of marriage).
This evidence is corroborated by the Husband’s own account.
The Husband then relies upon a number of documents for the proof that, despite what he was told by Ms Tani, he was not divorced from her at the time of his marriage to Ms Gamgumi.
These are firstly representations made by the Department of Immigration and Border Protection and secondly by the Nepal Metropolitan Office.
The Department’s correspondence provides information that the divorce registration certificate provided by Ms Tani to the Husband was fraudulent.
This information is caught by the hearsay rule. As noted above an exception to the hearsay rule is as to business records. A question arises as to whether this document constitutes a business record.
While s 183 appears to allow inferences to be drawn from the content of the document itself to establish whether a provision of the Evidence Act applies, including presumably as to whether a document constitutes a business record, Austin J in Australian Securities and Investment Commission v Rich (2005) 216 ALR 320 at [116] has said, on the question of authentication that there are limits to the use of inferences that are available merely from the document itself:
It would be absurd, according to Bryson J in Rusu (at 315), for the law to dispense on a general basis with the need to prove the authenticity of a document, for that would “put the court entirely in the hands of whatever a document which a party chose to tender purported to be, subject to whatever opportunity another party had of overcoming its apparent effect”. On the other hand, it is important not to set the bar too high for the authentication of documents, because if too much is demanded, the authentication requirement will fight against the policy underlying the business records provisions which, as Hope JA remarked in Albrighton (at 548), is “of great importance in the search for truth”. That policy recognises that any significant organisation depends for its efficiency upon the keeping of proper records, to be used and relied upon in the everyday carrying on of the activities of the business and therefore likely to be accurate, and “likely to be a far more reliable source of truth than memory”: Albrighton at 548–9 per Hope JA; see also Australian Law Reform Commission, Interim Report on Evidence, Report No 26, vol 1, at [709]. It is reflected in the terms of s 69, which makes hearsay representations in business records admissible without requiring evidence from their authors.
The law responds to these competing concerns in a commonsense way, bearing in mind the distinction between authentication and the weight or probative value of the documents. In Rusu, Bryson J did not deny that inferences may be drawn from the document itself, relevant to the question of authenticity. Apart from s 58(1), there is express statutory authority to do so in s 183, when a question arises about the applicability of a provision of the Evidence Act. But Rusu insists on the need for authenticity to be established, and asserts that authentication cannot be achieved solely by drawing inferences from the face of the document where there is no other evidence to indicate provenance. The other cases do not deny these propositions, in my opinion.
In this case the circumstances of the receipt of the document by the Husband can act in combination with the internal content of the document to assist in establishing that the document came from and was produced by the Department.
The same cannot be said of the correspondence from the Nepal Metropolitan Office received by the Husband, as the supporting assertion goes no further than to described the receipt of the document, an assertion that goes not higher to establishing the provenance of the document than the content of the document itself.
Returning to the Department’s correspondence, there is a basis set out for establishing that the information falls within s 69(2)(b) of the Evidence Act, as the content leads to the conclusion that the information has come indirectly from a person who might reasonably be expected to have had personal knowledge of the fact, namely the responsible authority in Nepal.
This then provides some evidence for the currency of the marriage between the Husband and Ms Tani at the time of his purported marriage to Ms Gangumi.
Importantly, the Husband also relies on another source of evidence which, either on its own or in combination with the above evidence, establishes the currency of the marriage at the relevant time. That source of evidence is the certificate in relation to the divorce order made in the Federal Circuit Court in relation to the marriage between the Husband and Ms Tani in July 2018. That certificate is governed by s 56 of the Family Law Act 1975 which provides as follows:
(1)If a divorce order takes effect, the Registry Manager of the court by which the order was made must prepare and file a memorandum of the fact and of the date on which the divorce order took effect.
(2)If a divorce order has taken effect, any person is entitled, on application to the Registry Manager of the court by which the divorce order was made, to receive a certificate signed by the Registrar of that court that the divorce order has taken effect.
(3)A certificate given under subsection (2) is, in all courts (whether exercising federal jurisdiction or not) and for all purposes, prima facie evidence of the matters specified in the certificate.
(4)The regulations may provide for the establishment of central records of decrees made under this Act and for the notification of decrees to the appropriate marriage registering authorities of the States and Territories.
The certificate relevantly provides as follows:
I certify that the divorce order made in relation to the application of MR [PEIRERA] took effect on the … day of August 2018, thereby terminating the marriage between MR [PEIRERA] and MS [TANI].
The effect is that the certificate provides prima facie evidence of the taking effect of the divorce order on 28 August 2018 and, by unavoidable implication, the currency of the marriage at the time of the making of the divorce order.
It may be safely concluded that the Husband and Ms Tani were married at the time of the Husband’s purported marriage to Ms Gangumi. By virtue of the operation of s 23B of the Marriage Act 1961 (Cth) that marriage is void and a decree of nullity will ensue.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 8 March 2019.
Associate:
Date: 8 March 2019
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