AK & NC
[2003] FamCA 1006
•19 June 2003
[2003] FamCA 1006
FAMILY LAW ACT 1975
FAMILY COURT OF AUSTRALIA
AT SYDNEY FILE NO:SY7642 of 1993
| BETWEEN | A. K., by her next friend, E. K-M. [Applicant] |
| AND | N. C. [Respondent] |
| Dates of Hearing: | 9 & 10 December 2002, 8 May 2003 |
| Date of Final Orders: | Friday 9 May 2003 |
| Date of Final Judgment: | Thursday 19 June 2003 |
JUDGMENT OF THE HONOURABLE JUSTICE CHISHOLM
| APPEARANCES: | Ms Bateman of counsel, instructed by Ms A. Touriki [Athena Touriki, Solicitor, DX 11514 Sydney Downtown] appeared on behalf of the applicant. |
| Mr N. C., the respondent, of 33 Epping Street Double Bay, NSW 2028, appeared in person except on the afternoon of 9/12/02, when he was represented by Mr Doctor of counsel, and after 13/2/2003, when he was represented by Mr Jordon, solicitor for Xenos Jordon Solicitors, DX 11101 Kogarah. |
AK V NC (NULLITY OF MARRIAGE: CAPACITY)
SY7642 of 1993
Coram: Chisholm J
Dates of Hearing: 9 & 10 December 2002, 8 and 9 May 2000
Date of Judgment: Thursday 19 June 2003
Catchwords:
Marriage – nullity – capacity to give consent to marriage – wife suffering dementia – whether capacity involves understanding of marriage generally or the specific marriage being celebrated – whether marriage invalid where one party mistakenly believes he or she is already married to the other party - Marriage Act 1961, s 23B.
Background
This was an application for nullity on the ground that Ms AK (“the wife”) was not capable of giving an effective consent at the time of her purported marriage to Mr N. C. (“the husband”), 18 October 2001. The application was brought on behalf of the wife by her Next Friend. At the time of the purported marriage the wife, in her 80s, was in a nursing home suffering from dementia and under guardianship; the husband was also in his 80s. In those circumstances issues arose about the validity of the marriage.
The parties had been previously married (in 1947) and divorced (in 1993). After the divorce, they continued to live in adjoining houses, although the circumstances of their lives were in dispute. The wife became ill, and was taken to a nursing home in January 2000. Proceedings were taken under NSW law whereby a guardian was appointed for the wife. The husband was a frequent visitor to the wife in the nursing home. The marriage ceremony occurred after the husband had taken the wife away from the nursing home during one of his visits to her.
When the matter first came on for hearing, the respondent, who was also in his 80s, somewhat deaf, and Spanish speaking, was unrepresented. An attempt to arrange representation for him failed. He had no witnesses available, and was treated as having applied for an adjournment, which was opposed. After hearing submissions, and evidence, Chisholm J reserved his decision on the adjournment application and the merits of the application. The application was largely based on the evidence of a psychiatrist, Dr C, whose view was that the wife lacked capacity. One of the attachments to Dr C’s affidavit was a report by Dr R, who took the view that the wife did have capacity.
On 8 January 2003 Chisholm J delivered a judgment that would have dismissed the application, but, not having made orders, was persuaded to allow the applicant to re-open. At a subsequent hearing on 8 May 2003, at which the husband was represented, Dr R gave evidence and further submissions were made on behalf of both parties.
In her final submissions, counsel for the applicants submitted in the alternative that on the evidence, the wife believed at the time of the purported marriage that she was still married to the husband (as in deed she had been, before their divorce in 1993), and did not understand that the ceremony changed her status; and in that event, she had not given a valid consent.
Held, dismissing the application for a decree of nullity:
The admissibility of Dr R’s report
Dr R’s report, being annexed to the affidavit by Dr C that was read on behalf of the applicants, was admissible in evidence for all purposes, in the absence of any order being sought by the applicants, or made, that its use should be limited
Evidence Act 1995 (Cth) s 60 applied.
Whether the wife lacked capacity
It is clear from the authorities that the law does not require a person to have a detailed and specific understanding of the legal consequences of marriage in order to have the capacity to give a valid consent.
Park v Park (1954) P 89; Dunne & Browne (1982) 60 FLR 212, 222 - 223; Hill & Hill [1959] 1 WLR 127, 130.
However “mere awareness of going through a marriage ceremony is not enough; a person must also understand the nature and effect of the ceremony involved”.
Anthony Dickey QC, Family Law (4th ed, 2002) at 175.
Mathieson (falsely called Perry) v Perry (1939) 56 NSW WN 89, Fall v Reilly [1971] ALR 157, Evans v Brenton (falsely called Tredennick) (1887) WN 129.
It was not necessary to rule on whether the question relates to the person’s general understanding of the nature of marriage and the obligations it entails (as suggested by the earlier authorities) or of the more specific consequences the particular marriage will have for the individuals involved.
Marriage of Brown; re Dunne (1982) 8 Fam LR 1, 9 (McCall J) considered.
On the evidence, it was not established that the wife’s consent was not a real consent because she was mentally incapable of understanding the nature and effect of the marriage ceremony.
The alternative argument, that the wife falsely believed she was already married at the time of the purported marriage
On the evidence, it had not been shown that the wife believed she was already married at the time of the purported marriage.
Had she believed she was already married at the time of the purported marriage, however, the application would still not succeed, having regard to the terms of s 23B. On this view, although she would have made a mistake, she would not have been mentally incapable of understanding the nature and effect of the ceremony. Thus sub-paragraph (iii) would not apply.
Nor would she have been “mistaken as to the nature of the ceremony performed” (sub-paragraph (ii). Instead, she would have been mistaken about a fact, in that she would have believed she was already married, and about the legal effects of the ceremony in her case. She would have believed that she, being married, lacked the capacity to marry, whereas in fact, having been divorced, she was free to marry and the ceremony made her a wife once again. This mistake would not have been a mistake about the nature of the ceremony.
Since the applicants had not proved on the balance of probabilities that the wife lacked the capacity to consent, the application should be dismissed.
INTRODUCTION
The application and the issues
This is an application for nullity on the ground that Ms A.K. (“the wife”) was not capable of giving an effective consent at the time of her purported marriage to Mr N. C. (“the husband”), 18 October 2001. At that time the wife, in her 80s, was in a nursing home suffering from dementia and under guardianship; the husband was also in his 80s. The marriage ceremony occurred after the husband had taken the wife away from the nursing home during one of his visits to her. In those circumstances issues arose about the validity of the marriage. Initially, the application had been based on three grounds: lack of capacity, fraud, and duress. However by the time of the hearing only one ground was relied on, namely the wife’s capacity to consent to the marriage. The case featured medical evidence about her mental capacity.
The application is brought on behalf of the wife by her Next Friend, E. K-M.[i] For practical purposes the application is brought by the wife’s niece, Mrs A. C., and the wife’s nephew Mr C. L. (For convenience, I will generally refer to them as “the niece and nephew” or “the relatives’). They have been appointed guardians by the NSW Guardianship Tribunal. The application is opposed by the husband.
Because the husband has at times been unrepresented I should make some things clear. First, the Court has no discretion in this matter. It must make a determination about whether the wife had the necessary capacity at the date of the marriage (again, for convenience I will not continue to use the word “purported”). If she did, the marriage is valid. If she did not, it is void.
Secondly, the result of this case does not involve a decision about many of the things that feature in the evidence. It is not a case about whether the husband was violent to the wife, or the motives of the niece or nephew or the husband, or whether it would be better for the wife if she were to stay in the hostel, or to have different medication. I may have to refer to some of this evidence in the course of the judgment, but these issues are not what the case is about.
Thirdly, the decision I have to make does not directly determine what happens to the wife, and who makes decisions about her. At present she has a guardian with powers to organise her affairs. Those powers arise from New South Wales laws about the care of people who are found to be unable to manage their affairs. The powers of the guardian under New South Wales laws will not disappear if the marriage is held to be valid. So far as I can see, for example, the decision in this case has no immediate bearing on the issues relating to the sale of the wife’s house.[ii]
Procedural history
I should refer briefly to the unusual procedural history. The matter came on for hearing in December 2002. The respondent was unrepresented. It is an understatement to say that he faced formidable difficulties in presenting his case. He had limited English and required an interpreter. He was aged 86. He was somewhat deaf. He displayed very limited understanding of the issues or how to conduct the matter in court.
The proceedings had been listed for two days and it was not possible for the matter to continue into the third day. In view of the circumstances, and in particular the age of both parties, I thought it imperative to do the best I could in the time available. Much of the first day was occupied with explaining matters to the husband and trying to arrange for him to obtain legal representation. A barrister did appear for him after lunch. However after what appeared to be a valiant effort to represent his client, he informed me that he was unable to continue to act for the husband. He indicated that this was not only for reasons to do with his diary. I infer from all the circumstances that the husband found it difficult to give proper instructions.
During the discussion, although the husband was difficult to understand, I gathered that he wanted to call witnesses who were not available on the day, particularly a Dr Roxanas, and I treated him as having applied for an adjournment. (He had previously filed affidavits by various people, including Dr Roxanas and the marriage celebrant, as to the circumstances of the marriage. However none of them were available at the hearing.) That application was opposed by Ms Bateman.
I heard the evidence and submissions over the following day, and reserved the question whether to grant the adjournment sought by the husband.
Having considered the evidence and the submissions, I came to the conclusion that the application for a decree of nullity should be dismissed. I prepared a judgment to that effect, and delivered it on 8 January 2003. One of the conclusions expressed in the judgment was that certain reports of Dr Roxanas, being attached to the affidavit by the medical expert relied on by the applicant, Dr Cassimatis, were in evidence for all purposes. Dr Roxanas expressed the view that the wife did not lack capacity to consent to the marriage.
Upon delivering the judgment, I was persuaded by Ms Bateman to defer making orders so that she could make some further submissions, relating in particular to the admissibility of material by Dr Roxanas and associated questions about whether the applicant should be permitted to reopen.
Fortunately, at a later stage the husband was legally represented by Mr Jordan, and on 13 February 2003 I made procedural orders enabling the parties to file written submissions on the evidentiary status of Dr Roxanas’ reports, and whether one or other party should be granted leave to re-open. Written submissions were received on behalf of the applicant on 13 March 2003, and on behalf of the respondent on 11 April 2003. Although the respondent's submissions were late (they should have been filed by 31 March) I exercised my discretion to permit the respondent to rely on them.
Having considered those submissions, for reasons given on 6 May 2003 I granted leave to the applicant to re-open her case in order to cross-examine Dr Roxanas. I will not repeat the full reasons here, but in substance they were as follows.
Dr Roxanas’ reports were annexed to Dr Cassimatis’ affidavit, which was read on behalf of the applicant. Ms Bateman at that stage made no submission as to the status of the reports, and did not seek any order in relation to them under the Evidence Act 1995 (Cth). No doubt she tendered the reports for a limited purpose, namely to enable the Court to understand the basis for Dr Cassimatis’ opinions. However the effect of s 60 of the Evidence Act 1995 was that since the material was admitted for one purpose, the hearsay rule did not apply, and thus the reports were in evidence for all purposes, including as evidence of the truth of what was asserted in the reports. Ms Bateman did not seek an order under s 136 of the Evidence Act to the effect that I should limit the use of the evidence. I therefore concluded that the reports were in evidence for all purposes.
The husband (who was represented at this stage) submitted that the applicant should not be granted leave to re-open. However I took the view that Ms Bateman genuinely believed – in my view mistakenly – that the Roxanas reports were not in evidence (except for the limited purpose). In those circumstances I considered that justice would be served by granting the applicant leave to re-open for the purpose of cross-examining Dr Roxanas.[iii]
Accordingly, on 8 May 2003 Dr Roxanas gave evidence and was cross-examined by Ms Bateman. Following that cross-examination, I heard further oral submissions on behalf of both parties.
Having considered those submissions, I came to the conclusion that I should adhere to my original view and dismiss the application. I was about to be away from the Registry for some weeks, and I thought it best to make the orders immediately, and deliver the reasons as soon as possible thereafter, although I did not have time then to publish reasons. Accordingly, I made orders on 9 May 2003 dismissing the application, deferring the publication of reasons. I now publish my reasons. They largely incorporate the original judgment, and add material dealing with the evidence of Dr Roxanas and the issues arising from it.
LEGAL PRINCIPLES
The relevant statutory provision, as applied to this case, is that the marriage will be void where the consent of the wife was not a real consent because she was mentally incapable of understanding the nature and effect of the marriage ceremony.[iv]
What does this provision require? In Park v Park[v] the court held that the person in question was capable of understanding the nature and effect of the marriage, although he was not capable of making a valid will. The court quoted a well-known remark by Sir James Hannan P:[vi]
“it appears to me that the contract of marriage is a very simple one, which does not require a high degree of intelligence to comprehend. It is an engagement between a man and a woman to live together and love one another as husband and wife, to the exclusion of all others”.
Both in law and in society, a marriage has a large variety of consequences. Few lawyers, let alone non-lawyers, would be able to make a comprehensive list of even the legal consequences. I note in this connection a reported exchange between an English judge and a medical witness as follows:[vii]
“Did you ever know anybody who was in a condition to understand all the consequences of matrimony?
– No, my lord”.
It is clear from the authorities that the law does not require the person to have such a detailed and specific understanding of the legal consequences. Of course if there were such a requirement, few if any marriages would be valid.
Despite the view that the contract is simple and easy to understand, there are some problems in applying the standard, particularly in cases like this. In the present case, as in many other cases where one party is elderly and requires some kind of institutional care, it may be necessary for the parties to live separately, whatever their married state. Thus, in such a situation, even what Sir James Hannon regarded as the very simple matter of an engagement between a man and a woman “to live together” becomes more difficult. What does a marriage mean in such circumstances?
A number of cases were cited before me.[viii] I have taken them into account. With some exceptions, however, although they provide instructive examples of the principles, they do not require detailed discussion in this judgment
Reviewing these authorities, I agree with Dr Dickey that “mere awareness of going through a marriage ceremony is not enough; a person must also understand the nature and effect of the ceremony involved”.[ix] This is illustrated by Mathieson v Perry, where Boyce, J said, granting a decree of nullity:
Here I believe the respondent knew he was getting married, but I do not think that at the time he was in such a condition that he appreciated and understood the real effect of the ceremony. The evidence before me has satisfied me that he had not a real appreciation of the engagement apparently entered into and was, to all intents and purposes insane at that time. I believe, in the words of Dr. Nowland, he was unable to face ordinary marriage affairs. Part of the ceremony in the Church of England, where they were married, is a promise by the husband to forsake all others and to keep only unto her so long as both shall live; to such promise I believe he gave no rational assent.
The problem of identifying precisely what it is that the person must understand was dealt with in some detail by McCall J in Marriage of Brown.[x] That was also a case of an elderly party: the husband was aged 82 and had been suffering from senile dementia. McCall J referred to the fact that the husband was marrying the woman with whom he had been living in a defacto relationship for 15 years although for nine months before the marriage they had been living apart. The husband had been in the hospital and the wife continued to live in the home, visiting him nearly every day. She “had been his companion since 1965 and had behaved in all respects as a wife”. At the time of the marriage the husband had difficulty recognising his own daughters, with whom he had had minimal contact in the years previously, but had no difficulty in recognising the wife.
In considering whether the husband had the requisite mental capacity, McCall J focused on the particular significance of the marriage in the particular case. He said:[xi]
The nature of the contract, and the responsibilities attaching to the particular marriage must vary from couple to couple. In the circumstances of this marriage the responsibilities were very different to many others. The parties were, perforce, to live apart because of the husband’s illness and the inability of the wife to properly care for him. It was a marriage in which the husband would, from then onwards, be confined to living in a hospital or nursing home situation where appropriate nursing care was available to him. The wife, in the meantime, would continue to live in what had been their matrimonial home for 15 years. They had during their time in Mandurah been regarded as husband and wife and the wife had apparently been known in the community as Mrs Brown. Marriage, to them, did not involve living together. Nor did it involve undertaking any new responsibilities by either, or any change in an existing and long standing relationship or situation. As the Reverend Barratt said in this context he assumed the husband knew what marriage was. The marriage was regularising a fact.
McCall J went on to refer to the fact that the husband had been a religious man and was required at the ceremony to repeat the promises contained in the marriage ceremony of the Anglican church. Because of his religious background and of the circumstances, and because of the evidence of the many persons present as to how he repeated the promises and other evidence about his behaviour and demeanor on the day, McCall J concluded that he not only understood that he was getting married, but that he understood the nature and effect of the marriage ceremony, “in particular as the effects of the marriage ceremony applied to him and the particular person he married.”
I am not aware of any other decision that so specifically identifies the required mental capacity with the particular circumstances of the parties. This approach is not really contemplated in the other authorities, so far as I am aware. The earlier authorities seem to have in mind a general understanding of the nature of marriage and the obligations it entails rather than the more specific consequences it might have for the individuals in question.
It emerges from these authorities, I think, that a valid consent involves either a general understanding of marriage and its consequences, or an understanding of the specific consequences of the marriage for the person whose consent is in issue. It is not necessary, at least at this stage in the judgment, to rule on whether there is an inconsistency between these two approaches.
THE BACKGROUND CIRCUMSTANCES
In this case, findings of fact are made difficult by the state of the evidence, although ultimately this is not a major problem, since the issues turn on the wife’s mental capacity, on which there is considerable evidence. Nevertheless, it is important to have some regard to the factual context as well as the specific medical evidence to be considered later.
The state of the evidence was as follows. The husband did not effectively cross-examine any of the applicant’s witnesses. Their evidence was therefore in substance unchallenged. On the other hand, the husband was not required for cross-examination. Despite this, there are many conflicts in the evidence given by the applicant’s witnesses on the one hand and the husband on the other.
In circumstances where the husband was not challenged or cross-examined and the applicant’s witnesses were not effectively challenged, it is difficult to make determinations of fact where the evidence is in conflict. In this case, however, for reasons that will emerge it is not really necessary to make factual findings on most of the contested matters. I will therefore state what I believe to be the factual background.
The husband was born in Cyprus on the 30 December 1916 and is thus 86 at the time of this judgment. The wife was born on the 30 May 1919, also in Cyprus, and is thus 84. They first married in 1947.[xii]
The parties were divorced on 20 October 1993. After the divorce, they continued to live in two semidetached houses. It is disputed whether they lived as husband and wife, but they certainly remained in contact with each other.
The wife went to a hospital, and later, in January 2000, her niece and nephew took her to live at a Greek Orthodox Community Hostel, where she has remained. The wife’s niece and nephew applied successfully for a guardianship order (under New South Wales law) in relation to her. Since then, the husband has been visiting her. On one visit, on 18 October 2001, he took her away secretly and married her. The validity of that marriage is the issue in this case.
At the time of the hearing, the wife remained in the hostel with the husband visiting according to the regime that had been laid down. The husband was very concerned during the hearing to express a range of views about the care of the wife. He was critical of her medication and care and of the restrictions upon his visiting. Essentially his position was that she would be better off at home and that this was what she wanted.
The early period, prior to the divorce in 1993
There is a great deal of evidence about this period. The husband’s position is that essentially for a long time the relatives did not keep in touch with him and his wife, despite the fact that they had treated her as their own children when they were young. He complains about them not sending a Mother’s Day card to the wife for 10 years. They give a very different picture: on their evidence they did keep in touch, and visited.
The evidence in the applicant’s case includes allegations of violence by the husband to the wife. The husband denies all abuse or violence towards his wife. He denies that they ever lived separate lives. He says that they always lived together as man and wife. He also says that he worked hard and supported the wife financially and in other ways. He says that he never had to resort to social security.
In relation to this period I accept the husband’s evidence about working hard and being involved with the wife. I make no finding on the question how involved the relatives were with the husband and wife during this period.
The circumstances of the divorce in 1993
The husband’s account of the divorce, contained at a number of points in his written material, may be summarised as follows. He says that he and his wife obtained the divorce “for financial reasons”. He does not explain what those reasons were. He says that they did not obtain a divorce in the Greek Orthodox Church, which still recognised the marriage.
The case for the applicant is that the divorce was associated with violent behaviour by the husband towards the wife. Ms C., the niece, says that in August 1993 the husband asked her for help to provide an affidavit in relation to his divorce application and she agreed to do this, confirming that he and the wife led separate lives. Responding to an account of circumstances of the divorce in the affidavit by the applicant, the husband repeats that he never physically abused his wife. He added, “in actual fact my wife and myself had a minor domestic dispute for which I was on the receiving end of verbal abuse”.
Since neither duress nor fraud are now relied on, the evidence about these matters is of marginal relevance at best, and I will deal with the subject briefly.
There is some independent evidence about these matters. An apprehended violence order was made by the local court at Waverley on 13 May 1993 to the effect that for a period of two years the husband was not to assault, intimidate, threaten or molest or otherwise interfere with the wife. This is consistent with the evidence of the applicant that in about March 1993 she had a telephone call from a police officer after which the wife came to stay with her. She and the wife met a police officer at the local police station took photos of her injuries and statements from her. The statements are part of the material relied on by the applicant. There were no submissions about their admissibility.
The statement by the wife refers to an argument on 27 March 1993, followed by some verbal abuse and physical violence by the husband to her. The second statement is dated 8 May 1993 and it describes another incident of alleged violence on 20 March 1993, involving the husband making threats with a knife and the wife being cut (accidentally, it seems).
The documentation relating to the divorce has not been put into evidence. However, in the Case Outline filed by the husband on 9 April 2002 it is stated that the parties were divorced on 20 October 1993 and that there was a property settlement “whereby each has one of the two adjoining semis owned by the parties”.
It seems that shortly after the divorce the wife returned to live in one of the two properties. There is much dispute about the extent to which she lived separately from the husband.
Although the husband was not cross-examined, having regard to the apprehended violence proceedings, to the fact that there were statements made by the wife to the police, and to the wife’s later references to the husband’s behaviour, I think it more likely than not that there was indeed some violence by him upon her at that time. This finding, however, is of marginal relevance if any to the issues in this case.
The wife goes to Roma Hospital in 1999
The next major incident is in 1999 when the wife went into the Roma Hospital. The applicant’s evidence is that in 1997, after a conversation with the wife’s general practitioner, she attended the doctor’s surgery, and arrangements were made to support the wife by visits involving social workers, a nurse and the provision of domestic assistance. The arrangements involved meetings away from the house so that the husband (living next door) was not around.
The applicant says that in December 1999 for several days she was unable to contact the wife and became concerned about her. She found her at the Roma Private Hospital Randwick. She believed that the wife’s physical condition was extremely poor. It seems that at this period there was conflict between the husband on the one hand and the relatives on the other.
In particular, there was an incident on 13 December 1999. The police were involved and the results of their investigation are in evidence: annexure B to the niece’s affidavit. A report indicates that on that day the husband attended the hospital where the wife was undergoing treatment for heart condition. It says that the husband attended for the purpose of removing the wife from the hospital as he believed she was not receiving appropriate treatment for her condition. He insisted and took her clothes from her room and placed them in the car although she did not want to leave. He then returned to her room and attempted to physically remove her from the hospital. The staff intervened and prevented him and then contacted the police. The report says that when the police arrived the husband was sitting outside the hospital in a calm state. However, when spoken to regarding his behaviour he “became very aggressive and began screaming and yelling at the police”.
Although he was warned several times he continued to cause a considerable disturbance outside the hospital and he was eventually arrested and detained for a breach of the peace. He was then taken to the police station and held while inquiries were made. He was later instructed not to return to the hospital. He agreed to the terms and was released. The police expressed concern that if he returned he may put the wife’s health at risk by way of his behaviour.
In relation to this matter, the husband’s affidavit denies that he was arrested or charged by the police. Despite his not being cross-examined I do not accept this. He speaks of the advice that he received from a Dr. Takas to the effect that he should remove the wife from the Roma Hospital and take her to St.Vincent’s hospital. He says that he was in a state of distress, as he was not allowed to take her to St. Vincent’s hospital.
I have no hesitation in accepting that he was in a state of distress and that he had a different view from others about what was best for the wife. Nevertheless, I accept on the balance of probabilities that the statements in the police report are more likely to be correct than his denial that he was arrested or charged.
The wife goes to the hostel
By January 2000 the wife was well enough to leave the hospital. Thus the problem between the applicant and the husband as to her future arrangements needed to be resolved. The applicant arranged for her to go to a hostel in Earlwood and with the help of doctors and staff at both places she was transferred there. The supervisor of the hostel, Ms Nyakos, has given evidence on behalf of the applicant.
The husband visited the wife at the hostel about two or three weeks after she arrived. Unfortunately the wife broke her leg while having a shower. I accept the husband’s evidence that he was not present at the time (although he was in the hostel) and do not in any way blame him for this unfortunate accident.
There were difficulties between the husband and the relatives about the care for the wife, and on 10 February the applicant attended the first guardianship tribunal hearing. The applicant sought a guardianship order. This was opposed by the husband, but orders were made. The orders and the reasons for them are in evidence.
The orders were that the wife’s estate be subject to management and that the management of the estate be committed to the Protective Commissioner. The Tribunal made a formal finding that the wife lacked the capacity to manage her own finances and that there was a need for another person to manage those affairs.
The report indicates the persisting dispute between the husband and the relatives. The husband argued that it would be in the wife’s interests “to return to her own home where he could look after her”. The relatives claimed that there had been domestic violence during the marriage and submitted that it would not be in the wife’s best interests to return.
It is noted that the Tribunal spoke to the wife’s former general practitioner who “was of the view that [the wife] is not well enough to go home and never will be due to her dementia and the need for her psychosis to be monitored”. He said that he had been something of a confidant for the wife and that she had felt “unable to cope with the stresses of living with her husband”. He stated that he had considered these views of hers not to be a part of her paranoid ideation, but to have some genuine validity.
The Tribunal also spoke to the wife. She told the Tribunal that she had been living in “a holiday resort” before being admitted to a hospital where they were “treating her well”. Nevertheless she told the Tribunal, by phone apparently in about February 2000, that she would prefer to “return to her own home where she could be looked after by her ex-husband.”[xiii] She emphasised that they had been together for many years and “that love grows deeper over time”.
The matter came before the Tribunal again in the following year. On 21 March 2001, again for reasons that are in evidence,[xiv] it granted the relatives guardianship and financial management of the wife’s affairs. No less than 16 people attended the hearing and the Tribunal reviewed a large number of documents set out in its report. It is interesting to note that Mr. Butland, counsel representing the husband, said that his client was aged, confused, lacking good English and with only little understanding of what the issues were before the Tribunal.
There was much discussion about who should be appointed guardian. The Tribunal concluded that it should appoint the applicant with her brother as alternative guardian. The formal findings were that the wife remained a person in need of a guardian within the meaning of the Act and that there was still a need for limited guardianship. The Public Guardian was appointed with the “function of access” and the applicant, and her husband as guardian with the functions set out in the order. It is not quite clear to me how responsibility for decisions about the wife are divided as between the Public Guardian and the relatives, but this matters not: it is quite clear that questions relating to the wife’s residence are to be determined not by the husband, but by either the Public Guardian or the relatives.
The marriage ceremony
Curiously, there is almost no evidence about the circumstances of the marriage ceremony. Although the husband at some points indicated that he wanted to call evidence from those who were present, that did not in fact occur. The applicant did not call such evidence, and, as I have indicated, abandoned the earlier grounds of fraud and duress. In the result, the issue is essentially about the wife’s mental capacity at the time of the ceremony on 18 October 2001.
THE EVIDENCE ON THE WIFE’S MENTAL CAPACITY
The husband’s evidence
The husband had filed a considerable amount of material. Much of it was inadmissible, though by no means all. Ms Bateman took numerous objections. It was not possible in the time available to rule on them all, and I reserved some of them. In the event, it is not necessary to refer to much of the husband’s evidence. He says in substance that he wants the wife to come back and live with him, and that he would assist her if she did, and that in his view it is not in her interests for the house to be sold, as it continues to increase in value and gives her security. He says that the wife knows what she wants, and what she wants is “to leave the nursing home and live with me”.[xv]
The applicant’s non-medical evidence[xvi]
Tina Nyfakos
Mrs Nyfakos is the Manager of the hostel. She says that the wife has been a resident since January 2000, has settled in well and made friends and her general health is good. She deals with various issues associated with the husband’s visits and associated problems: he had been seen to bring medication for the wife, and to have brought documents for her to sign. On one occasion, 26 May 2000, he brought a marriage celebrant.
Ms Nyfakos’ evidence is of limited relevance to the wife’s capacity. I note however that she describes the husband as pointing his finger when speaking to the wife, talking to her “continuously” and putting his arm around her, enveloping her. She describes the wife as sitting in his presence with her head bowed, her hands on her lap. On occasions she appeared “agitated and visibly upset” in the husband’s presence, and after he has left.
Mrs Nyfakos attached a number of documents to her affidavit. They mainly deal with the husband’s activities and to that extent are of peripheral relevance. They include a summary report on his visits. While this document indicates a range of difficulties the staff had with the husband, I note that it does not include any statements by the wife to the effect that she did not want the husband’s visits to continue. There is also a letter from the wife’s G.P. critical of the husband, recommending that he should be prevented from taking her away, and noting that “she is demented”, a bare proposition that is not in question. The only attachment of real significance is an assessment report dated 13 June 2001, which I will consider under the heading of medical evidence.
Ms A. C. (the niece)
Much of the niece’s affidavit sets out the history, sufficiently described elsewhere. There is also much about the disruptive effects of the husband’s behaviour at the hostel and elsewhere.
The niece says that on 20 October the wife was wearing a gold band on the small finger of her left hand. When asked what it was, she said “[The husband] gave it to me”. I note that this seems to indicate a recollection and an awareness of who the husband was. The wife went on to speak of him not giving her jewellery before, and the ring not fitting, and the husband saying she must wear it on that particular finger.
On 28 November 2001 the niece had a conversation with the wife in which the niece asked her about the ring, and asked “Did they go somewhere to get married?” The wife said she could not remember. Asked whether she remembered going to a church, and whether there was a Greek speaking official there, she said “I think there was an Australian person there”. The niece asked her if she had signed anything, and she said she could not remember. Asked if she was given a piece of paper that day, she said “No I wasn’t”.
After speaking about other things, the niece again asked the wife if she had remarried the husband and she responded quickly, “Oh yes, it’s all about the issue of my house. He told me that if we got married, ‘they’ would give me back my house”.[xvii] This seems to me to indicate that the wife had a recollection of getting married, and recalled the husband telling her the remarriage had some connection with the house. In my view this suggests a degree of understanding that she remarried and that the husband believed that the marriage had some consequences.
This impression is underlined by the reported conversation that follows. The wife told the niece that she did not want to be with the husband or be married to him. She went on to say that he had told her they would both be better off if they married, because this would be the only way she could get her house back and “I would then be able to live there”.
The niece then said “Did he force you to do this?” She replied:
I don’t care to be married to him, but he told me that if I agreed to do this, it would be better for both of us if we’re ‘re-joined’, as we have been together for more than 50 years.
The niece then said that if the wife did not want to be married to the husband, they must involve a solicitor to sort it out - was that what she wanted? She replied:
I want to divorce him, but the solicitor should do this without [the husband] knowing, because he will cause trouble for me.
I imagine that these parts of the affidavit were thought to support the case for duress or fraud, but these grounds have now been abandoned. In relation to the question of capacity, these conversations seem to me to support the view that the wife had a knowledge that she had married the husband, that she could be divorced, and that the marriage had some consequences, associated with being “re-joined”, or “living together”, and the ownership of property.
Athena Touriki
Ms Touriki is the solicitor instructed by the wife’s next friend. She gives an account of a conversation with the wife on 7 January 2002, in her office. She asked her “Did you know that you have remarried N. C. [the husband]?” She answered by apparently referring to her first marriage. Ms Touriki says that from her observations and answers, the wife did not recall the recent marriage.
I am not convinced. The evidence is that the wife is hard of hearing. There is nothing to suggest that Ms Touriki clarified which wedding she was referring to after the wife gave answers in terms of the first wedding. The more likely explanation is that the wife thought she was referring to the first wedding. A prompt might well have elicited the correct information.[xviii]
The medical evidence
After dealing with a preliminary matter – the relationship between dementia and paranoia - I will deal first with the other medical evidence, and come last to the critical evidence of Drs Cassimatis and Roxanas.
Dementia and paranoia
It will be useful to deal at once with a preliminary matter. I accept Dr Cassimatis’ evidence that there are essentially two separate problems about the wife’s mental state. The first is a paranoid component. That aspect can be more or less severe at particular times, and can be well controlled by medication. With medication, it may improve, so that her state is better at a later time than it was at an earlier time.
The second is vascular dementia. This is a degenerative condition, caused by something like “little strokes”, each of which causes some further irreversible damage. Because the condition is degenerative, it cannot improve, and the wife’s mental state declines in a stepwise fashion as each incident occurs. As I understand it, there may be no incident that is apparent to anyone: the fact that there has been one, or more, becomes apparent only as a matter of inference from a further decline in the wife’s mental performances.
Dr Cassimatis explained this in an answer to me. But in the course of that answer, although saying that the wife had a damaged brain and thus could not have been said to be in “good health” on 18 October, he conceded that there could be “times when she functions at a different level”.
There is no evidence to suggest that the paranoid component was present at the time of the marriage, or that it prevented the wife from giving a valid consent. The applicant’s argument is that the dementia was the cause of the wife’s inability to give a valid consent.
Helen Paton
Ms Paton conducted an assessment of the wife’s cognitive functioning on 7 February 2000, for the purpose of the guardianship hearing. The wife was cooperative and willing to complete the tasks. The next day she could recall the assessor’s name when prompted. On an IQ test, she performed better than about 50% of adults in her age group. She had poor recall of recent events, such as words or pictures given or shown to her, and had various other problems, such as naming pictures of objects. She was considered to be “experiencing difficulties in most areas of cognitive functioning”. She had adequate levels of attention and concentration, though her immediate and delayed memory abilities and learning abilities were poor.
Ms Paton said that the cognitive impairment was consistent with dementia of a vascular origin. She thought that the wife would benefit from being in a structured environment and having supervision in her daily activities.
In my view, Ms Paton’s evidence does not indicate an inability to give consent to marriage.
Helen Paneras
Ms Paneras prepared a psychological report based on a psychosocial assessment comprising two interviews with the wife in March 2000.
She said she was married (not divorced) and that the husband comes and sees her daily; she “talked about him with ease and presented as eager to see him on this day”. She confirmed a history of domestic violence, and provided some details, which seem to relate to the middle period of her relationship with the husband. She said she had been scared of the husband, but no longer was. Ms Paneras continued:
[The wife] confided that she has received assistance from [the husband] in the running of her home. Although there is a past history of violence and unhappiness, [The wife] talked about her present relationship with [the husband] as positive. She even indicated feelings of sympathy towards him, indicating that he was alone and having no family.
It is not necessary to set out all the findings in the assessment, but I will note those that are of most importance.
Interestingly, Ms Paneras says that there was a marked difference between the two interviews, a week apart. In the first, the wife was disoriented and could not remember things such as her date of birth or the time and date. At the subsequent interview, she was
more attentive and well oriented in time and place. She could accurately verbalise the time, date and day of the week, although she was not aware that she would be re-assessed.
The wife showed poor memory functioning, conceptual construction and reasoning skills. Her “ability to focus and attention capacities are within the average range for her age however she showed changed levels of attention over the two interviews.” There was no evidence of psychosis but there was evidence of a depressed mood.
The assessment contains more evidence about the wife’s understanding of the husband and her attitudes towards him. She said that when her leg improved (from the fall in the shower) she would like to be home. When confronted about her physical difficulties
she reported confidently that [the husband] would assist her. There was some minor acceptance that she would be struggling physically, agreeing that if there was no real improvement with her physical condition that she may not be able to be independent.
The wife said that she was in the hostel because she needed accommodation until she could move back to her duplex. She told Ms Paneras that the doctors advised her to keep a distance from [the husband], to whom she referred as her “husband”. She said that the husband tells her that she should do as she wants. She added that the husband was “jealous as he has expressed to her that he doesn’t like it when [the wife] sees her relatives or when she shows them affection”. She spoke positively about her neice and nephew and what they did for her.
In my view, these comments are essentially accurate, and indeed insightful. They show a considerable understanding of her social and physical setting, and the identity and roles and attitudes of other significant people in her world.
The wife said more about wanting to go home, saying that the husband would probably help her. She said “I like having my freedom, to lie down when I want to… I feel dependent here… I really want to go home… I want to get better to do my jobs…” Ms Paneras says the wife is a proud woman “with strong beliefs around independence”.
Ms Paneras concludes that the wife prefers to return to live at home, being supported by the husband. However she has little concept of her physical difficulties, including dementia, and is unable to be in independent living. A semi-independent living arrangement would be preferred if it were a viable option.
In my view Ms Paneras’ evidence, while supporting the wife’s need for care, is consistent with her having the capacity to give a valid consent to marriage in March 2000. This is relevant, although of course it is possible that the wife’s condition deteriorated between that time and October 2001.
Others
I will mention briefly people whose evidence is of less value to the present limited issue. I do not attach much significance to Dr Ward’s evidence in the present context. He saw the wife when she was in the Roma Hospital, a time when she was agitated and had other medical problems. I do not think it is possible to disentangle the effects of her situation at the time from more permanent features of her condition. In any case, Dr Ward’s report does not take the matter any further than other evidence. Dr Kokkinon’s brief report also does not advance the matter.
I note that in the latter part of 1998 a doctor thought the wife was “very capable in caring for herself”, and her home was reasonably clean and tidy; she was “quite reliant on” the husband, who appeared to be very caring and concerned for her.[xix]
There is also an assessment by Collins and Frasca. This report, also annexted to Dr Cassimatis’ affidavit, refers to an assessment of the wife by an occupational therapist and a psychogeriatric nurse on 13 June 2001.[xx] It is closer in time to the marriage than most of the other assessments. The authors had seen her also in the previous year.
The relevant parts are under the headings “cognitive status” and “conclusion”. The wife’s short term memory was poor. She was “oriented to person and time but not to place”. She “displayed no psychotic phenomena”. She “was unrealistic of her capabilities if she was to return home”, and could not say what she would do in the case of danger in the home. The authors thought she was unable to comprehend the concept. The authors recommend that she not be moved to an alternative hostel, and paint a positive picture of her enjoyment of life in the hostel.
Dr Roxanas
Dr. Milton Roxanas describes himself as a medical practitioner and says that he is a qualified medical practitioner and consultant psychiatrist for a total of 31 years. He practices at the Epping Clinic and Concord Hospital. A perusal of his curriculum vitae indicates that he is qualified in psychiatry and is appropriately qualified to give expert evidence, although unlike Dr Casimatis he appears to have no particular expertise in problems of the aged or dementia in particular.
First report, February 2002
Dr. Roxanas has written two reports, both in the form of letters written to the husband’s previous solicitors. The first is dated February 2002, and is essentially a critique of Dr Cassimatis’ reports. Only the second, based on Dr. Roxanas’ assessment of the wife, is of real importance. However I note two comments by Dr. Roxanas in the first report. He says that at one point “on testing she was disoriented as to time and name of psychiatrist although this can happen if someone has been in a nursing home for a substantial period of time where monotony and sameness makes one disoriented”. He concludes:
“It may well be that in October 2001 she may have had a lucid interval where she wanted to be re-united with her ex-husband and live with him rather than next door to him. It may well that her delusional beliefs about him, as expressed in Dr. Cassimatis’ letter may have been sufficiently suppressed by the medication to allow her to make a decision uninfluenced by delusional beliefs about him”.
Second report and examination, April 2002
Dr Roxanas visited the wife at the Earlwood nursing home on 23 April 2002. His second report is dated 29 April 2002. The doctor found the wife to be "alert and smiling".
He asked her about various aspects of her life in order to ascertain her memory and the capacity to weigh various facts. She gave wrong dates for her birth, referring to 1953 and 1955. She said she had been in Australia about 50 years. The doctor reports:
"she also told me that she had been married for 55 years and while the couple were separated for several months they were then remarried by Father Miltiadis. She said that her husband first came to Australia and she followed him about six months later."
The wife made the following comments about the husband:
She stated that her husband drank substantially and was frequently angry that she accepted it and coped around it. She stated that they both worked and that she was jealous of her husband, accusing him of having a lover although she says that in retrospect he was a good man."
In my view these comments sit well with the evidence that seems to indicate both some violence from the husband to her, combined with a strong commitment by each to the other, whatever outsiders might think about the quality of the relationship.
The wife reported that she had had several miscarriages and that she and the husband were childless. She thought her father was alive but that her mother had died recently. She knew she was taking various medications but not the names of the drugs. The report continues:
I asked her whether her husband was living with her and she agreed that he does and that he continues to work. I also asked her whether she wanted someone to help her make decisions and she said, “I want my husband as I cannot trust anyone else”.
She could not explain why she was not using the husband's surname in the hospital.
Under the heading “intellectual testing”, Dr Roxanas refers to a number of tests he conducted. He found the wife to be “alert but somewhat euphoric, giggling inappropriately.” She appeared unconcerned at the obvious inaccuracies in her history. She knew it was the month of April but she did not know what day of the week it was, or the year. She thought she was living in Double Bay and said that “they are currently renovating the house”.
The wife was not able to tell the months of the year backwards. She could not remember any questions that the doctor had asked her, except the very last item. However she was able to comprehend the questions and “answer them as best she could”. Her naming was good and she was able to tell the doctor the name of his watch and pen.
Dr Roxanas sought to test the wife’s reasoning by asking for comments and to weigh the pros and cons of the story where a poor man stole a loaf of bread. She said that he should have asked permission to take the bread, and that someone should have given it to him as he was hungry. He should not have stolen it, although this was understandable in his circumstances. The doctor does not comment on these answers. They seem to me to show an understanding of the issues and an ability to make sensible judgments about things.
Dr Roxanas comments that there is no doubt the wife is suffering from a dementing illness. He comments however that the interviewer has to shout in order for her to hear, understand and answer. He points out that this "may give the impression that she is more incapable and dementing than she really is”.
Dr Roxanas says that evidence for his diagnosis of dementia is her inability to give her date of birth, her statement that she is currently living with her husband, her inability to say where she is currently living, her poor orientation, poor concentration, and poor memory. However, the doctor continued:
She is however able to comprehend questions put to her and she has some ability to weigh the pros and cons of simple issues. Throughout the interviewer, she repeatedly said that she loved her husband although he was a difficult man and that she was living with him. The sense of unity between them was clear throughout the interview.
Dr Roxanas' conclusion is as follows:
In my opinion this lady does suffer from the dementing illness and consequently needs a "best friend" (sic) to guide her through any complex decisions although in view of her mental state it is doubtful whether she is likely to initiate any major actions from within her. Although I say this, she was insistent that she only trusted her husband.
In her current state of mind (and I assume she was at least like this, if not better, when she remarried) she is able to give consent to remarrying her husband.
The other question as to whether she is able to give instructions to her solicitor I believe that she is able to do so if put to her loudly and in simple, practical terms.
Dr. Cassimatis
Dr Cassimatis gave evidence on 9 December 2002, a day when the husband was unrepresented and was unable to cross-examine him to any significant degree. I asked him some questions without objection in order to clarify some matters.[xxi]
Dr Cassimatis is a well-qualified and experienced psychiatrist with specialist training in dementia, vascular dementia and paranoid psychotic dementia. He has been working in the field of geriatrics since 1969.
Dr Cassimatis’ opinion was based on his examinations of the wife and the documents attached to his affidavit. As expressed in his affidavit, his opinion is that as at 18 October 2001, the wife “was mentally incapable of understanding the nature and effect of the marriage ceremony that [she] underwent”.
Dr Cassimatis examined the wife on 12 July 2000, 8 January 2002, and 8 August 2002, and wrote three reports, dated respectively 19 July 2000, 15 January 2002, and 16 August 2002. Obviously, since the marriage ceremony was in October 2001, the first interview and report is the most important, but I will also refer to the later reports.
Dr Cassimatis came to review the wife as a result of a referral on 26 June 2000 from a psychogeriatric nurse, to whom the wife was referred by the Public Guardian.[xxii] Her letter to Dr Cassimatis identified three tasks, of which the first was to “Determine her capacity to give informed consent”. The body of the letter indicated that the issue was consent to marry, as “her ex-husband wishes for them to re-marry”. The letter stated that the wife told the nurse that she was not unhappy at the hostel but “frequently stated she would prefer to return home”. The letter continued “In fact she believed remarriage had taken place as she had signed a form”. It said that the wife spoke freely about the husband’s quick temper and his having hit her in the past. She said that he visited every day and “continues to be angry, quick tempered and cries easily”. As indicated at the hearing, without objection, I take this letter into account only to assist an understanding of the context in which Dr Cassimatis wrote his report.
There is also a brief letter of referral from Dr Peter Calligeros, Exhibit A1. It also appears to be a referral, and gives a brief account, saying that “Her ex-husband wishes to remarry and there is concern whether she is able to make these decisions (sic). Could you please assess her.” Dr Cassimatis said he had this letter when he wrote his first report (although the handwritten date appears to be 19 July, but is difficult to read).
Dr Cassimatis examined the wife for about half an hour on each occasion. In his first report, based on the interview of July 2000, Dr Cassimatis describes the wife as a “pleasant, smiley and cooperative person”. She could not recall who brought her to the consultation, or the date, or Dr Cassimatis’ name. She said she had lived in a hostel for 2-3 months and said that the husband used to shout, carry on and hit her. She said she left him because he had affairs. Dr Cassimatis found her memory was “patchy but good for things like old addresses and that her ex-husband visited her daily. This information was more or less lucid at different times during the interview.”
The wife expressed a desire to live in her house, her bed, cook and clean for herself and have help from the husband who would “live next door”. He could come to eat and visit but go back to his own place. She could not give Dr Cassimatis a rational or logical plan to handle the husband if he were to become violent, or to deal with her belief that he had girlfriends.
I will set out the substance of the July report and comment on each section. Dr Cassimatis wrote:
[The wife] suffered from Dementia and a Paranoid Psychoses (sic). Her behaviour was well controlled on the current medication…
She lacked judgment, insight and capacity to make decisions about her independent living and living next door to her ex-husband whom she feared and about whom she had paranoid delusions.
Dr Cassimatis went on to say she was vulnerable to relapse because she had a progressive disorder and was likely to panic.
As to the first words of the second paragraph, I did not understand Dr Cassimatis to mean that she lacked all judgment and insight; rather that she lacked these things to a degree that prevented her from being able to make “decisions about her independent living”.
These matters are of course highly relevant to the wife’s capacity to look after herself, though of less direct relevance to her capacity to consent to marriage.
The report continues:
At no time did she request marriage to [the husband] during the consultation.
This is hardly surprising during the half hour interview, since there is no indication that Dr Cassimatis raised the topic.
The report concludes:
[The wife] does not have the capacity, due to her mental illness and dementia to give informed consent.
This is the doctor’s conclusion on the critical issue. Since the sentence does not expressly refer to consent to marriage, I asked him what consent he was referring to. I expected him to reply, in effect, “consent to marry, of course”, because that is what he was asked and, presumably, what he knew to be the issue in this case.
To my surprise, however, Dr Cassimatis’ answer did not actually refer to marriage at all, but referred at one point to her having the “judgment, insight and capacity to make a decision about independent living” and, at a later point in his answer:
I was asked to make an assessment and I felt that she did not comprehend the nature, the significance, the long-term consequences of decisions that she should make with regards to her livelihood”.
In view of this surprising answer, I asked him if that was a summary of the matters he was thinking about when he expressed a view about her capacity to give consent. He said:
Yes, that first one was with respect to her - you know, the Guardianship Board having permission to manage her affairs as opposed to being a divorced woman at the time and having a dementing process.
Again, I was surprised, and I drew his attention to the short note from the GP, and asked him what he understood the note was asking him. His answer was:
That note was really explaining, from his perspective, that there were probably other issues, which was mentioned in the domestic violence as well, that he was suggesting in there that not only did she have a mild dementia, so he put it, but he thought, the way I understood it, that the domestic issue was of greater - more important that she was frightened to live with her husband and there was a risk there. That’s how I interpreted that report - that letter. I also saw that as an accompanying letter rather than the true referring source.
I then asked him to put out of his mind questions about her capacity to make wise decisions about her living arrangements and whether the marriage would be a wise or unwise one for her, and asked him whether she was “capable of understanding what marriage was, or what marriage is”. He answered unhesitatingly:
Yes, she would’ve been capable of understanding what a marriage was.
In view of these answers, in my view when he was preparing his first report Dr Cassimatis appears to have been primarily thinking about matters to do with the wife’s welfare and living arrangements, and did not appear to have addressed his mind clearly to the question of her capacity to marry, notwithstanding the words in his report. This is consistent with the fact that the report does not specifically address what would be required for such a consent and what specific limitations the wife had in this regard. And his last answer clearly stated that she could understand what a marriage is.
I then asked him if she would have been capable of “giving consent to marrying in the sense of participating in the married state”. He said:
She would’ve been capable of participating in a ceremony but I don’t believe that she was capable of understanding the consequences of a marriage contract, the responsibilities of marriage that she was undertaking. So as an almost festive occasion, she would entertain a marriage day, but in actual fact being in a married state, I don’t think she was quite well enough to understand that, didn’t have that ability to sustain the concentration, attention and judgment that goes along with what’s required when people do marry.
In answer to further questions about this view, he indicated that his reasons were that she “would say that she didn’t want to live with the man, they were going to be separated, there were certain conditions of how they would conduct their relationship which is not really in the spirit of understanding that you’ve just had a festive marriage and a union and a declaration of love til death do us part.”
I then asked if he was referring to opinions she expressed on that occasion, and he said “On all occasions”. He then referred to her delusional views, and said that because of the dementing process she would be very suggestible, and pick up the mood of the occasion. He indicated that her “consent” would be a matter of mood rather than a logical cognisance of what was taking place and its significance”.
In my view there are some difficulties with this. Firstly, there is considerable evidence that on a number of occasions the wife has told people she wants to return to live in her house, or with the husband: so on the evidence before me she has not expressed the contrary view “on all occasions”. Secondly, while I have no doubt that she is compliant and eager to please, the evidence before me - which is more detailed than Dr Cassimatis had at the time - does not seem to me to be consistent with Dr Cassimatis’ view that her compliance would have been no more than going along with the mood of a festive occasion.
It seems to me quite likely that she knew that marriage had at least some connection with restoring an involvement with the husband. In other words, in my view the evidence indicates that she had at least some sense of the marriage having consequences for her. In a later answer Dr Cassimatis said he could not imagine her “ever being totally clear in conscious mind and cognitive awareness in all aspects of her life”. I accept this, but it is a higher standard than the law requires for the validity of a consent to marry. Again, in re-examination (in connection with a comment about the possibility of her marrying in “a lucid moment”) he referred to a person being “very clear, a shining light, working perfectly normally in every aspect”, to which a similar comment would apply.
To this point I have referred to the first report and Dr Cassimatis’ oral evidence. The first report is particularly important because it was based on an assessment before the date of the marriage. The later assessments and reports are relevant, but it may be unsafe to rely on them because the wife has a degenerative disease and she may have been less capable at later dates than at the time of the marriage, 18 October 2001.
In his second report, of January 2002, Dr Cassimatis says that the wife referred to the husband as her husband and denied ever being divorced, “rather that he had been away”. She denied any previous violence by the husband. I note that this is a difference from her reporting on other occasions. Dr Cassimatis says that she was not oriented in time or place, although he does not give details. He said that her mental state was no different from what it was at her previous examination “other than that she was now more fatuous, giggly and bland”. It is a little surprising that Dr Cassimatis does not consider that this change might be relevant to her mental state, but he was not cross-examined on this.
Dr Cassimatis says that his opinion of her mental state and her ability to make decisions remains unchanged. Consistely with his oral evidence, he says that she “lacks judgment, the critical awareness required to make decisions about her property, her income, assets and all aspects of her life…” Although the medication was controlling her paranoid ideation, she had severe cognitive impairment, and in Dr Cassimatis’ view she did not have the capacity to give “any informed consent”.
The third report refers to an examination on 8 August 2002, 10 months after the marriage. She had what Dr Cassimatis considered increased paranoid fears, and he noted that she was not prescribed anti-psychotic medication at that time. He found evidence of inappropriate mood, and disorientation in time, place and person. He said she was not fully aware of her circumstances, the significance of having a guardian or “the significance of her dispute with her husband”. I am not sure to what dispute the doctor is referring: on this and other matters the report is somewhat lacking in detail.
While I note that Dr Cassimatis did not consider that there was any significant change in the wife over the period of the three assessments, I do not find this evident from the reports. It is sufficient to say that I do not consider that these later assessment assist in showing that the wife lacked capacity at the date of the marriage, essentially because I do not think that the possibility of her having declined has been satisfactorily excluded, and to a lesser extent because of the reports’ lack of detail, and lack of specific focus on capacity to consent to marriage.
The cross-examination of Dr Roxanas and submissions arising from it
I have already summarised Dr Roxanas’ reports. In my view only one significant point arose from Dr Roxanas’ cross-examination, namely the possibility that the wife did not believe that she was being married because she thought she was already married, having forgotten the fact that she had been divorced.[xxiii]
Dr Roxanas referred to Dr Cassimatis having said that the wife was “surprised”, whereas in fact he said that she was “amused” at the idea that she had remarried. Dr Roxanas indicated that he saw little difference between the two terms, and agreed that the wife’s reaction was consistent with her dementia, because “in her mind she was always married” and she did not see herself as “really divorced”.
It was put to Dr Roxanas that the wife had no memory of her divorce. After checking his notes, he said that she did say she had been separated for several months but that the husband continued to visit her. Pressed with the question, he said he could not specifically answer whether she had a memory of the divorce. Pressed with further questions on this topic, he said that she “seems to have been aware that she married in a vague sort of sense, it’s a bit muddy”, or words to that effect.
It was put to Dr Roxanas that the wife may have been referring to the earlier marriage, but Dr Roxanas disagreed with this, saying that she knew she had remarried him. It was put to Dr Roxanas that the wife must have been referring to be earlier marriage because of the reference to being married by the priest, but Dr Roxanas did not agree with this, again asserting that she knew that she had remarried her husband. He conceded that he did not remember if the word “remarriage” was used in the interview. He also agreed that she did not volunteer the information that she had remarried.
It was put to Dr Roxanas that the questions he asked in the interview all were “directive” questions (which I take to mean leading questions). However he said that he would not have asked, on that sensitive topic, “have you remarried?”
In re-examination, Dr Roxanas emphasised that he believed that the wife’s sense of being married was part of her mental state, and she repeatedly referred to it during the interview.
Dr Roxanas had his contemporaneous notes with him and they were referred to in cross-examination. Ms Bateman did not tender them in evidence and successfully opposed the tender of them on behalf of the respondent.
It seems possible that the wife’s perception of the nature of the marriage ceremony, and in particular whether she realised that it changed her legal marital status, may have been illuminated by evidence from those who attended the wedding ceremony. However there was no such evidence.
In her submissions, Ms Bateman referred to my remarks in the January judgment to the effect that there were two lines of authority in the reported cases, one of them suggesting that the relevant test was the person’s ability to understand marriage as a general entity and the other suggesting that the relevant test was the person’s ability to understand the particular marriage whose validity is in question. In this connection, Ms Bateman pointed out that section 23B refers to “the” marriage. Her argument was, to put it in my own terms, that the wife, in order to give a valid consent, needed to have understood that the marriage ceremony was having the effect of changing her status, so that after it she was married to the respondent and before it she had not been so married.
This argument raises a question of law as to the interpretation of section 23B. However for the respondent, Mr Jordan did not engage in debate about this question of law. Instead he made submissions about whether in view of the evidence I should draw the factual inference proposed by Ms Bateman.
Mr Jordan drew attention in particular to Dr Roxanas’ evidence that it was important to keep in mind that the wife’s deafness and unfamiliarity with English can easily give the impression that she is more were demented than she actually is. Mr Jordan also submitted that in other respects, and in particular in relation to the question whether the wife was capable of understanding the concept of marriage, Dr Roxanas was not really challenged in cross-examination. I agree with this, and see no reason not to accept his evidence in this regard.
I accept that on the evidence there is a possibility that, as Ms Bateman submitted, the wife was indeed confused about the second marriage ceremony, and thought of herself as married to the husband because of the first marriage ceremony. However, on balance, it seems to me that Dr Roxanas’ view is more likely to be true. That is, that the wife understood that she was being remarried and could recall being separated from the husband, and possibly being divorced from him. I conclude therefore that the evidence does not permit the factual finding on which Ms Bateman’s argument depends, and thus the argument must fail.
Although the question of interpretation was not argued, and dealing with it is not strictly necessary, I think it appropriate to do so in case I am wrong about the factual inference.
It is necessary to examine the words of the section. The relevant parts of s 23B are as follows:
23B (1)A marriage … is void where -
(a) …;
(b) …;
(c) …;
(d) the consent of either of the parties was not a real consent because -
(i)it was obtained by duress or fraud;
(ii)that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
(iii)that party is mentally incapable of understanding the nature and effect of the marriage ceremony;…
(e) …
and not otherwise.
I assume for the sake of the argument that, contrary to my finding, the wife believed that she was already married to the husband because of the first marriage ceremony.
The situation would have been, at least arguably, that the wife did in fact not understand the effect of the ceremony: she did not believe it made the parties man and wife (because she mistakenly thought they already were). But on this view, although she would have made a mistake, she would not have been mentally incapable of understanding the nature and effect of the ceremony. Thus sub-paragraph (iii) would not apply.
I did not understand Ms Bateman to have submitted that sub-paragraph (ii) applied, but I will consider it. Of course, there is no suggestion that the wife was mistaken about the identity of the other party. Was she “mistaken as to the nature of the ceremony performed”? I do not think so. On the present hypothesis, she would have been mistaken about a fact, in that she would have believed she was already married. She would also have been mistaken about the legal effects of the ceremony in her case: she would have believed that, being married, she lacked the capacity to marry, whereas in fact, having been divorced she was free to marry and the ceremony made her a wife once again. But this would not have been a mistake about the nature of the ceremony. Thus sub-paragraph (ii) would not apply.
It follows that I cannot accept Ms Bateman’s argument, both because I do not make the factual finding on which it is based, and because in my view even if that finding were made the consent would not be caught by the provisions of s 23B(1)(d).
CONCLUSIONS
Was the wife capable of consenting to marry on 18 October 2001? I do not know. Nor, I think, does anyone else. The case turns on a different question, namely whether the applicant has proved on the balance of probabilities that the wife lacked the capacity to give such consent.
I do not overlook in this connection Dr Cassimatis’ comments about the wife’s suggestibility. A person might understand what a marriage is and go through a ceremony of marriage, intending to marry, but do so because the person wished to please someone else, or go along with the mood of the occasion. In such a case, the legal issue might be whether there was fraud, or duress.[xxiv] However these grounds are not relied on.
I have previously discussed the authorities, and indicated that some speak of the required capacity as involving a general concept or marriage, while others focus to some extent on the particular marriage in question.
If one considers the former, the answer given by the applicant’s expert witness appears virtually conclusive: “Yes, she would’ve been capable of understanding what a marriage was.” I agree with this, and note that it is in accordance with other evidence, in particular the evidence of Dr Roxanas.
Did the wife lack capacity if the legal test has to do with the particular consequences of the marriage in question?
The evidence indicates that on some occasions the wife had expressed the wish to leave the hostel and return to her home and to live there with the husband’s support. It is clear that she realised that others, including the doctors and the relatives, wanted her to stay at the hostel. The evidence also shows that at the time of the marriage she knew who the husband was, knew she had been previously married to him, and expressed positive feelings towards him. It is true of course that she also spoke of his past abuse of her, and of being happy in the hostel, and so on. However this case is not about the wisdom of her remarriage but about her mental capacity to consent to it.
In my view the evidence is consistent with the wife having an understanding that marriage to the husband involved some sort of public choice to be involved in life with him, and, circumstances permitting, going to live with him as man and wife. It is not clear to what extent she understood the precise legal consequences of marriage in relation to such matters as inheritance, maintenance, ownership of property, and her ability to live where she chose, but as earlier indicated the validity of a consent to marriage does not require such knowledge.
In my view, therefore, the evidence is consistent with the wife having an understanding of marriage and its consequences, both in general and specifically for her.
In those circumstances I do not need to consider whether the legal test relates to an understanding of marriage in general, or an understanding of the particular marriage. In either case, the conclusion is the same on the facts of this case.
Having regard to the evidence and submissions, for the reasons I have set out I am not satisfied on the balance of probabilities that the wife lacked consent to marry on 18 October 2001. Consequently, the application for a decree of nullity must be dismissed.
I certify that the preceding 173 paragraphs are a true copy of the reason for judgment herein of the Honourable Justice Chisholm
Associate
[i]Appointed by an order made on 2 July 2002.
[ii]See paragraph 12 of Athena Touriki’s affidavit.
[iii]Re F: Litigants in Person Guidelines (2001) 27 Fam LR 517; (2001) FLC 93-072, paragraph 252, quoting from Ipp J “Judicial Intervention in the Trial Process” (1995) 69 The Australian Law Journal 365.
[iv]Marriage Act 1961, s 23B(1)(d)(iii). The provision is quoted more fully towards the end of the judgment.
[v]Park v Park (1954) P 89. Park v Park has been treated as a leading authority: see Dunne & Browne (1982) 60 FLR 212, 222 - 223; Hill & Hill [1959] 1 WLR 127, 130.
[vi]Durham & Durham 1885, 10 P D 80.
[vii]Foster v Forster (1923) 39 TLR 658, 659, quoted in Dickey Family Law 2nd Edition 146.
[viii]Mathieson (falsely called Perry) v Perry (1939) 56 NSW WN 89, Fall v Reilly [1971] ALR 157, Evans v Brenton (falsely called Tredennick) (1887) WN 129; Marriage of Brown; re Dunne (1982) 8 Fam LR 1.
[ix]Anthony Dickey QC, Family Law (4th ed, 2002) at 175.
[x]Marriage of Brown; re Dunne (1982) 8 Fam LR 1.
[xi]Marriage of Brown; re Dunne (1982) 8 Fam LR 1, 9.
[xii]This paragraph is based on the husband’s Case Outline.
[xiii]Page 6 of the Reasons for Decision, attached to Ms Touriki’s affidavit.
[xiv]Annexure D to the Applicant’s affidavit.
[xv]Husband’s affidavit of 6 September 2002, last page.
[xvi]The evidence of Freda Hilson, from the Office of the Public Guardian, does not relate specifically to the wife’s capacity.
[xvii]The significance of putting “they” in quotes within the quote was not explained at the hearing.
[xviii]Ms Paton’s report, p 1, notes that prompts appeared to have been “helpful in cueing her to identify correct information”. See also the report of Triet Bui (annexed to Dr Casimatis’ affidavit), in which the wife was asked what she would do if a pile of magazines were on fire. At first she said she would return them because they were not hers. “When pushed a little further, her response was to use water or a blanket over the fire.”
[xix]Dr Audrey Gathy.
[xx]I also note Ms Collins report of 18 July 2000.
[xxi]Re F: Litigants in Person Guidelines (2001) 27 Fam LR 517.
[xxii]The letter is Exhibit A2.
[xxiii]This was essentially the only point relied on by Ms Bateman in her submissions following Dr Roxanas’ cross-examination.
[xxiv]See eg In the Marriage of S (1980) 5 Fam LR 831, 839.
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