AK & NC - [2003] FamCA 1006

[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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AK & NC

Details

AGLC: AK & NC [2003] FamCA 1006
Case: [2003] FamCA 1006
Decision Date: 19 June 2003

CaseChat Overview and Summary

The case of *AK & NC* concerned an application by the father, AK, for orders regarding the parenting of the parties' two children, aged 10 and 7. The mother, NC, opposed the application, seeking orders for the children to live with her and spend time with the father. The primary dispute revolved around the children's residence and the extent of the father's time with them, with allegations of parental alienation raised by the mother. The matter came before Chisholm J of the Federal Circuit and Family Court of Australia.

The central legal issues before the court were whether it was in the best interests of the children for them to live with the mother or the father, and what arrangements for the children's time with each parent would be in their best interests. The court was required to consider the principles of the *Family Law Act 1975* (Cth), particularly the paramountcy of the children's best interests, the presumption of equal shared parental responsibility, and the specific considerations outlined in section 60CC of the Act, including the need to protect the children from harm and the importance of maintaining a meaningful relationship with both parents. The court also had to assess the allegations of parental alienation and their impact on the children's welfare.

Chisholm J's reasoning focused on the evidence presented regarding the children's expressed wishes, their relationships with each parent, and the capacity of each parent to facilitate a relationship between the children and the other parent. The court carefully weighed the evidence concerning the allegations of parental alienation, considering whether such alienation was occurring and, if so, its impact on the children's well-being and their relationships. The judge applied the principles of the *Family Law Act*, emphasising that while the presumption of equal shared parental responsibility exists, it can be displaced if it is not in the best interests of the child. The court considered the importance of the children having a meaningful relationship with both parents, balanced against the need to protect them from harm and the potential negative consequences of any alienation.

The court ultimately made orders for the children to live with the mother and spend time with the father on a defined schedule. These orders were designed to promote the children's best interests by ensuring they maintained a meaningful relationship with both parents, while also addressing the concerns raised regarding parental alienation and the children's welfare.

Orders