Yew and Lin and Anor

[2015] FamCA 969

FAMILY COURT OF AUSTRALIA

YEW & LIN AND ANOR [2015] FamCA 969

FAMILY LAW – EVIDENCE – Perjury – where the husband  has given sworn evidence as to his travel movements over a particular period and has produced source documents from a Commonwealth department in support of that evidence – where the wife has issued a subpoena to the same Commonwealth department and the documents produced under subpoena indicate that the husband  has omitted part of the relevant source documents and has fabricated evidence – interim orders made for the referral of the papers to the Commonwealth Director of Public Prosecutions

Family Law Act 1975 (Cth)

T & T (1984) FLC 91-588; 10 Fam LR 707

APPLICANT: Mr Yew

FIRST RESPONDENT: Ms Lin

SECOND RESPONDENT: B Pty Ltd

FILE NUMBER: MLC 3498 of 2014

DATE DELIVERED: 6 November 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 21 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kirimof

SOLICITOR FOR THE APPLICANT: Karolidis & Co

COUNSEL FOR THE FIRST AND SECOND

RESPONDENTS:

Ms Dellidis

SOLICITOR FOR THE FIRST AND

SECOND RESPONDENTS:

Kennedy Partners

Orders

(1)That the Registry Manager of the Melbourne Registry of the Family Court of Australia forward to the Commonwealth Director of Public Prosecutions copies of the following documents for consideration as to whether the husband should be charged with and prosecuted for any offence in connection with the giving of false evidence or fabricating evidence to the Court in proceedings Number MLC 3498 of 2014:-:

(a)       A copy of these orders;

(b)       A copy of Reasons for Judgment dated 6 November 2015;

(c)       A copy of the affidavit of the husband filed 7 September, 2015;

(d)       Exhibits R1 to R5 inclusive;

(e)Documents produced under subpoena by the Department of Immigration.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yew & Lin 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 MELBOURNE

FILE NUMBER: MLC  3498  of 2014

Mr Yew

Applicant

And

Ms Lin

First Respondent

And

B Pty Ltd
Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter was listed for mention before me for the purpose of setting down a hearing with respect to the husband’s application for leave pursuant to s 44(3) of the Family Law Act1975 (Cth) (“the Act”) to bring his property proceedings out of time.

2. However, at the commencement of the hearing I was informed by counsel appearing for the husband that the husband sought leave to file a Notice of Discontinuance with respect to his Amended Initiating Application filed 4 May 2015.  Counsel for the husband stated that the husband now understood that he had brought his claim in an inappropriate forum and that a writ and statement of claim had been filed on his behalf in the Supreme Court of Victoria.

3. Leave was granted for the husband to file his Notice of Discontinuance.  As a result of the husband’s discontinuance of his application in this Court, the wife made application for costs of and incidental to these proceedings which were commenced by the husband on 24 April 2014.  The wife sought costs on an indemnity basis in the sum of $59,797.84. 

4. It was conceded on behalf of the husband that an order should be made for costs. However the application for indemnity costs was opposed; it was the husband’s contention that costs should be paid on a party/party basis. 

5. As a result of that position, counsel for the wife commenced her client’s application by providing a detailed chronology of the matter.  It was submitted that that chronology was necessary in order to determine the question of whether the circumstances of this case were so exceptional as to justify an order for indemnity costs. 

6. There was a break in the proceedings during the course of the morning.  At the resumption of the hearing, counsel for the husband confirmed that his client would consent to an order for indemnity costs, notwithstanding his client’s previously stated opposition to such order.  Given the change in the husband’s position the matter was stood down to enable the parties to have further discussions.  Ultimately, I made an order by consent with respect to the wife’s costs.

7. Prior to making those orders I raised with counsel for the husband concerns I had regarding the husband’s conduct; it was alleged by the wife that the husband had deliberately misled the Court and perjured himself in his affidavit filed 7 September 2015 in relation to the issue of his travel between Country C and Australia.  I will address the husband’s response to that allegation later in this judgment.  I informed counsel for the husband that I was contemplating referring the papers to the Commonwealth Attorney-General’s Department for investigation.  These are my reasons for judgment with respect to that issue.

Background

1. The parties married in 1966.  There are six adult children of the marriage.

2. Separation occurred on 25 December 1983.  At the time of the separation, the parties had interests in an entity known as B Pty Ltd which was trustee of the B Trust.  The husband was a director and shareholder of entities in the United Kingdom.  The wife alleges that his interest in those entities was in excess of $6 million.

3. It is the wife’s case that on 15 June 1987 the husband executed a Deed of Agreement between himself and B Pty Ltd, the effect of that deed being for him to relinquish his interest in assets held by the B Trust.

4. On 20 July 1988 the wife filed an application for divorce.  That application was served on the husband on 8 August 1988.  The divorce became final on 20 November 1988.

5. The application of the husband before this Court was an application for leave to commence proceedings for final property settlement.  In his amended application filed 4 May 2015 the relief sought on behalf of the husband includes that the husband be reinstated as a director and shareholder of B Pty Ltd and that the properties owned by the husband and B Pty Ltd be valued and that the husband be paid an amount equal to one half of their value. 

6. The husband’s application was brought almost 26 years after the parties’ divorce.

Has the Husband Misled the Court?

1. On 7 September 2015 the husband swore an affidavit in response to the wife’s Application in a Case seeking dismissal of his property application.  The husband deposed in that affidavit that the divorce order made on 20 November 1988 was not validly obtained as he was not served with that application.  The husband deposed at paragraph 11 of that affidavit as follows:-

   I was not the person served by [Mr D] in Sydney on the 8 August 1988.  My proof is contained in the immigration records provided by the Immigration Department in [Country C] and attached hereto as “CHY-1”.  The [Country C] records show that I left [Country C] on the 7 December 1985 and returned to [Country C] on the 14 December 1988.  The [Country C] records show I did not again leave [Country C] until 23 March 2014.  The [Country C] records reveal that I was in [Country C] and not in Australia on the 8 August 1988.  The [Country C] records are confirmed by records provided to me by the Australian Department of Immigration.  Now produced and shown to me marked “CHY-4” is a true copy of my Australian immigration record.  The Australian movement records confirm that I was not in Australia at any time during 1988.  The Australian records corroborate the [Country C] records that I returned to [Country C] from Australia on the 14 December 1985 and did not return to Australia until the 23 March 2014. 

2. Further, the husband deposed that the Deed of Agreement dated 15 June 1987 is a document that does not bear his signature.  At paragraph 27 of his affidavit the husband deposed as follows:-

   … It appears that just as with the acknowledgment of service of the divorce documents, the wife has forged my signature on the deed so that she could exercise control over the trust assets to my exclusion.  I have requested that the wife produce the original deed so that it could be examined by a handwriting expert but the wife has refused to allow production.

3. No doubt as a result of the matters contained in that affidavit the wife caused a subpoena to produce documents to be issued and served upon the Department of Immigration.

4. The documents produced under subpoena from the Department of Immigration and Border Protection disclose the following:-

   ·On 23 June 2014 the husband caused a request for international movement records to be lodged with the Department of Immigration and Border Protection.  That request was made for production of records with respect to [Mr Yew] born … 1943 and related to passport number … (Exhibit R3);

   ·On 2 April 2015 a further request for international movement records was made to the Department of Immigration and Border Protection on behalf of the husband.  That request was also made with respect to passport number … in the name of the husband.  A file note recorded on that request notes as follows:-

   Client stated dob when client migrated in 1983 passport was in diff dob, unsure what dob old passport lost, need movements needed 80s. (Exhibit R4)

5. The movement records produced by the Department of Immigration disclose that the husband entered Australia on eight occasions between 26 October 1986 and 23 March 2014.  Exhibit R5 discloses the following movement by the husband on passport number …:-

   ·Arrival on 26 October 1986; departure on 5 November 1986;

   ·Arrival on 14 February 1987; departure on 22 February 1987;

   ·Arrival on 7 June 1987; departure on 21 June 1987;

   ·Arrival on 3 July 1987; departure on 24 July 1987;

   ·Arrival date unknown; departure on 18 September 1988;

   ·Arrival on 16 November 1988; departure on 20 November 1988;

   ·Arrival on 5 February 1989; departure on 15 February 1989;

   ·Arrival on 12 March 1989; departure on 2 April 1989.

6. The movement records confirm that the husband departed Australia on 18 September 1988; the date of his arrival in Australia on that occasion is not recorded in the records produced under subpoena.  However, based on the records produced it is likely that the husband was present in Australia on 8 August 1988, being the date the acknowledgment of service of the divorce application was signed.  Further, the movement records indicate that the husband was in Australia at the time of the execution of the Deed of Agreement, that Agreement being dated 15 June 1987.

7. Upon the concession being made on behalf of the husband that it was appropriate that there be an order that he pay the wife’s costs on an indemnity basis, it was submitted by Counsel for the husband that that concession was made so as to avoid findings being made in these proceedings which may give rise to questions of issue estoppel in the proceedings in the Supreme Court.

8. The matter was stood down to enable discussions between counsel to occur with respect to the husband’s concession.  Ultimately, I was provided with a minute of consent order signed on behalf of the parties that effectively resolved the costs issue.

9. However, from the Court’s perspective that is not the end of the matter.  It is well settled that this Court has the power to bring what may be a breach of a law of the Commonwealth to the attention of the authorities.  In T & T (1984) FLC 91-588; 10 Fam LR 707 it was said that there can be no doubt that where evidence or material discloses breaches of the Commonwealth laws, a judge is entitled to bring those breaches to the notice of the relevant Commonwealth authorities. Further, it was noted by Simpson and Bartlett S.JJ at 79,747, that it might even be suggested that if it had not been brought to the notice of the authorities, the trial judge might have failed in his or her public duty.

10. Having regard to the matters deposed to in the husband’s affidavit filed in these proceedings, it may be inferred that there has been a deliberate attempt to mislead the Court, and thereby pervert the course of justice. 

11. The husband deposed in the plainest of terms that he had not been to Australia between 14 December 1985 and 23 March 2014.  It is evident from the husband’s affidavit that he has sought and obtained documents from the Department of Immigration with respect to his travel movements. The documents produced under subpoena by the Department confirm that the husband made two requests for production of his travel records. 

12. The documents produced under subpoena by the Department of Immigration confirm that the husband travelled to Australia on eight occasions between December 1985 and April 1989.   In his affidavit filed 7 September 2015 the husband deposed that he did not travel to Australia at all between 14 December 1985 and March 2014. 

13. Annexure CHY4 to the husband’s affidavit are certified copies of documents produced by the Department of Immigration evidencing what the husband alleges was the last occasion of travel by him between Australia and Country C from December 1985 until 2014, the husband arriving in Australia on 7 December 1985 and departing  on 14 December 1985.  Those records are dated 7 April 2015 and presumably were provided to the husband in response to his request for international movement records dated 2 April 2015.  A document in almost identical form containing that information was produced under subpoena by the Department (Exhibit R5).  However the pages immediately preceding and following that document which were produced by the Department pursuant to the subpoena and which disclose the husband’s travel to and from Australia after 14 December 1985 (Exhibit R5) are not referred to in the husband’s affidavit.

14. I invited counsel for the husband to make submissions in relation to the issue of whether or not I should refer the papers to the relevant Commonwealth authorities.  Counsel for the husband conceded that it was impossible to challenge the authenticity of the documents produced under subpoena by the Department of Immigration.  It was submitted by counsel for the husband that the husband will have to provide an explanation for these matters in the Supreme Court proceedings.  Counsel for the husband also submitted that the husband is “very old”.   The husband is aged 72 years.

15. Having regard to:-

    ·the husband’s requests of the Department of Immigration for his travel records;

    ·the fact that extracts of those records are annexed to the husband’s affidavit;

    ·the omission from the husband’s affidavit of the travel records evidencing his travel to Australia after 14 December 1985;

    ·the husband’s sworn evidence that he did not travel to Australia between 14 December 1985 and March 2014; and

    ·the documents produced under subpoena by the Department of Immigration confirming that the husband did travel to Australia on 8 occasions between 14 December 1985 and March 2014,

    I am satisfied on the balance of probabilities that the husband has deliberately attempted to mislead this Court with respect to his travel to Australia between 1985 and 2014.  In the context of his application before this Court that allegation was a significant matter.  It was asserted by the husband that he could not have executed documents central to the issues in dispute in these proceedings as he was not in Australia during the period alleged.

16. It is not for me to determine whether the husband’s conduct amounts to a criminal offence.

17. However, given what on the face of the documents appears to be a brazen attempt to mislead the Court, I propose to refer these reasons, a copy of the husband’s affidavit and the documents produced under subpoena to the Commonwealth Director of Public Prosecutions for consideration as to what if any further steps might be taken against the husband. I will make orders in the following terms:-

    (1)That the Registry Manager of the Melbourne Registry of the Family Court of Australia forward to the Commonwealth Director of Public Prosecutions copies of the following documents for consideration as to whether the husband should be charged with and prosecuted for any offence in connection with the giving of false evidence or fabricating evidence to the Court in proceedings Number MLC 3498 of 2014:-:

    (a)       A copy of these orders;

    (b)       A copy of Reasons for Judgment dated 6 November 2015;

    (c)       A copy of the affidavit of the husband filed 7 September, 2015;

    (d)       Exhibits R1 to R5 inclusive;

    (e)Documents produced under subpoena by the Department of Immigration.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 6 November 2015

Associate: 

Date:  6 November 2015