Bigamy – Amarnath & Kandar [2015] FamCA 1138 (18 December 2015)

The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2015/1138.html

“Discussion

15. 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”.
16. It is clear that at the time the applicant participated in the marriage ceremony at the registry with the respondent in 2011 she was lawfully married to another person.
17. 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 Suburb B, New South Wales in 2011 is a nullity.

Another issue

18. Section 94 of the Marriage Act provides for the offence of bigamy. The penalty for such an offence is imprisonment for five years.
19. It is noted that on the marriage certificate relating to the marriage in 2011 the applicant is described as “never validly married”. That assertion on the evidence before the Court is blatantly false and appears to have been made simply to facilitate her marriage to the present respondent.
20. As a consequence it is incumbent upon the Court to consider whether the papers in these proceedings should be referred to the Commonwealth Attorney General so as to give consideration as to whether the applicant should be charged with the offence referred to.
21. The considerations touching upon whether to refer the papers were considered by Mushin J in Hiu & Ling [2010] FamCA 743 where his Honour said:

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] FamCA 1253; (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.

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.
23. Whilst it is noted that the Court has a discretion as to whether the papers should be referred to the appropriate authorities, in these circumstances the Court considers it appropriate that the papers be referred and that the question as to whether the Applicant is to be prosecuted be dealt with by the relevant authorities and the Registrar is requested to do so.
24. It is directed that the following documents be referred to the appropriate authorities for consideration:
    1. Initiating Application filed 30 September 2015;
    2. Affidavit of the applicant filed 30 September 2015;
    100. Affidavit of the applicant filed 14 December 2015; and
    4. A copy of these Reasons for Judgment.”