Often in family law proceedings before the Court, it will be the case that the evidence will reveal one or both parties  have not been truthful or followed all required laws.  This can relate to any number of issues, such as a party committing criminal offences, misleading Centrelink, false information in taxation documentation, business and company accounting etc.

At Sanicki Lawyers, our family law team is highly experienced in dealing with these kinds of matters, and can advise you on the impact these kinds of issues are likely to have on your family law outcomes. 

However it is also important to be aware that one of the potential outcomes, is the referral by the court of a party found to have breached their legal obligations, to the relevant authorities – such as the Australian Federal Police, or a government department impacted upon by the legal breaches.

However as the 2018 case of Kirwan & Tomaris shows, whether or not breaches of the law will be “referred” by the court is a matter of fact and degree.  In that case, a woman married overseas came to Australia and correctly, and truthfully, reported to the Department of Immigration and Border Protection that she was married.

However in 2017, before her marriage overseas was dissolved, she married another man (with the new husband’s full knowledge) in Australia – her ‘second husband’.  As such, the woman had committed bigamy, which is a criminal offence in Australia punishable by as much as 5 years in prison.  The second husband also was well aware that she was already married to another man when they undertook their marriage ceremony in Australia.

As the woman was already validly married at the time she married her second husband, the Court granted the woman a nullity of the second marriage when she requested it.  However the question then arose for the court as to whether or not to refer the woman to the Director of Public Prosecutions to face criminal charges for bigamy and giving false information to the marriage celebrant (who had no idea the wife was already married when she married her second husband).

The court determined, relying on past cases as authoritative statements of the law, that it was not necessary for the Court to refer all breaches of the law for prosecution, or to the relevant authorities.  The court said, relying on the past case of Malpass & Maysen [2000]:

“Questions of degree must be relevant.  There are many cases where minor irregularities are revealed in regard 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…”

However in this case, the court determined the breach of law was blatant and would be referred to the Director of Public Prosecutions – with that agency to then have the power to decide if the wife (and possibly her second husband) would be prosecuted):

“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 to 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 my result in Mr D being refused a visa to enter Australia.

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

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

So as can be seen from the above, breaches of the law can and do become obvious in family  law matters, and can indeed be central to the Application before the Court – such as the centrality of bigamy to any application for a nullity of marriage – as the fact of bigamy renders the marriage invalid.

However as can also be seen from Kirwan & Tomaras [2018] the seriousness of the breaches varies, and the Court has the power to decide on a case by case basis if it will refer the breach in question for prosecution or to any other government department.

If illegal conduct of any kind is relevant to your family law matter, please contact Stephanie Hope, Senior Associate Family lawyer and Head of Family Law today to make an appointment for a confidential discussion.

Stephanie can be contacted on 03 9510 9888 or at [email protected]