Often in family law proceedings before the Court, it will be\nthe case that the evidence will reveal one or both parties have not been truthful or followed all\nrequired laws. This can relate to any\nnumber of issues, such as a party committing criminal offences, misleading Centrelink,\nfalse information in taxation documentation, business and company accounting\netc.<\/p>\n\n\n\n
At Sanicki Lawyers, our family law team is highly\nexperienced in dealing with these kinds of matters, and can advise you on the\nimpact these kinds of issues are likely to have on your family law\noutcomes. <\/p>\n\n\n\n
However it is also important to be aware that one of\nthe potential outcomes<\/em><\/strong>, is the referral by the court of a party found\nto have breached their legal obligations, to the relevant authorities \u2013 such as\nthe Australian Federal Police, or a government department impacted upon by the\nlegal breaches.<\/p>\n\n\n\n However as the 2018 case of Kirwan & Tomaris<\/em>\nshows, whether or not breaches of the law will be \u201creferred\u201d by the court is a\nmatter of fact and degree. In that case,\na woman married overseas came to Australia and correctly, and truthfully,\nreported to the Department of Immigration and Border Protection that she was\nmarried.<\/p>\n\n\n\n However in 2017, before her marriage overseas was dissolved,\nshe married another man (with the new husband\u2019s full knowledge) in Australia \u2013\nher \u2018second husband\u2019. As such, the woman\nhad committed bigamy, which is a criminal offence in Australia punishable by as\nmuch as 5 years in prison. The second\nhusband also was well aware that she was already married to another man when\nthey undertook their marriage ceremony in Australia.<\/p>\n\n\n\n As the woman was already validly married at the time she\nmarried her second husband, the Court granted the woman a nullity of the second\nmarriage when she requested it. However\nthe question then arose for the court as to whether or not to refer the woman\nto the Director of Public Prosecutions to face criminal charges for bigamy and\ngiving false information to the marriage celebrant (who had no idea the wife\nwas already married when she married her second husband).<\/p>\n\n\n\n The court determined, relying on past cases as authoritative\nstatements of the law, that it was not necessary for the Court to refer all<\/strong>\nbreaches of the law for prosecution, or to the relevant authorities. The court said, relying on the past case of Malpass\n& Maysen<\/em> [2000]:<\/p>\n\n\n\n \u201cQuestions of degree must be\nrelevant. There are many cases where\nminor irregularities are revealed in regard to taxation, social security and\nother issues. We think it unreasonable\nfor the court to burden itself with a duty to report all of these matters.\nDifferent considerations may apply in relation to more blatant and substantial\nirregularities. We leave the\ndetermination of this issue to be determined in a case where the point arises\ndirectly\u2026\u201d<\/em><\/p>\n\n\n\n However in this case, the court determined the breach of law\nwas blatant and would be referred to the Director of Public Prosecutions \u2013 with\nthat agency to then have the power to decide if the wife (and possibly her\nsecond husband) would be prosecuted):<\/p>\n\n\n\n “In the present case I do not accept that the wife had any doubt as to the validity to the marriage to Mr D.\u00a0 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.\u00a0 Her marriage to Mr D was at all times in the forefront to her mind.\u00a0 It was a relevant and necessary consideration in terms of advice to the Department of Immigration and\u00a0 Border Protection understanding as she did that it my result in Mr D being refused a visa to enter Australia.<\/em><\/p>\n\n\n\n “\u2026it is difficult to view the wife\u2019s 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\u2026Whilst 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.\u201d<\/em> So as can be seen from the above, breaches of the law can\nand do become obvious in family law\nmatters, and can indeed be central to the Application before the Court \u2013 such\nas the centrality of bigamy to any application for a nullity of marriage \u2013 as\nthe fact of bigamy renders the marriage invalid.<\/p>\n\n\n\n
” It is a matter for the relevant authorities as to whether the parties or either of them will be the subject of prosecution.<\/em>“<\/p>\n\n\n\n