FAMILY COURT OF AUSTRALIA
Alford & Lyden [2021] FamCA 38
File number(s): BRC1214 of 2019 Judgment of: BAUMANN J Date of judgment: 11 February 2021 Catchwords: FAMILY LAW – DECLARATION – Validity of marriage – Where the Applicants contend that the deceased husband did not understand the nature and effect of the marriage ceremony – Where the deceased did not have the capacity to give his real consent and he did not understand the nature and effect of the marriage ceremony – Declaration made that the marriage solemnised is void pursuant to s 23B(1)(d)(iii) of the Marriage Act 1961 (Cth) Legislation: Family Law Act 1975 (Cth) s 113
Marriage Act 1961 (Cth) s 23B(1)(d)(iii)
Cases cited: AK & NC (2004) FLC 93-178
Jones & Dunkel (1959) 101 CLR 298
Oliver (Deceased) & Oliver [2014] FamCA 57
Tuckerman [2005] FamCA 302
Number of paragraphs: 58 Date of hearing: 9 August 2019 and 11 November 2019 Place: Brisbane Counsel for the Applicants: Mr J Hackett Solicitor for the Applicants: Stephens & Tozer Solicitors Counsel for the Respondent: Mr G Waterman Solicitor for the Respondent: Butler McDermott Lawyers ORDERS
BRC1214 of 2019 BETWEEN: MS A ALFORD AS ATTORNEY FOR MS B ALFORD AND MR A LYDEN AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF MR B LYDEN (DECEASED)
Applicants
AND: MS LYDEN
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
11 FEBRUARY 2021
THE COURT ORDERS:
1.That it is declared, pursuant to s 113 of the Family Law Act 1975 (Cth), that the marriage solemnised between Mr C Lyden and Ms Lyden on … April 2007 is void pursuant to s 23B(1)(d)(iii) of the Marriage Act 1961 (Cth).
2.That these proceedings be adjourned for Case Management Hearing at 9.30am on 18 March 2021 in the Family Court of Australia at Brisbane.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Alford & Lyden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
In April 2007, the Respondent Ms Lyden married Mr C Lyden (“the deceased”). At the time of the marriage Ms Lyden was aged 55 years; the deceased was aged 68 years. The deceased had no children at the time of his death in 2018.
The proceedings commenced and maintained by Ms A Alford (as Attorney for Ms B Alford) and Mr A Lyden (as personal representative for Mr B Lyden (deceased)) invoke the jurisdiction of the Court seeking a declaration pursuant to s 113 of the Family Law Act 1975 (Cth) (“the Act”) that the marriage of the deceased to Ms…
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CaseChat Overview and Summary
In the matter of *Alford & Lyden*, the applicants, Ms A Alford as attorney for Ms B Alford and Mr A Lyden as personal representative for the estate of Mr B Lyden (deceased), sought a declaration that the marriage solemnised between the deceased, Mr C Lyden, and Ms Lyden was void. The applicants contended that the deceased lacked the capacity to understand the nature and effect of the marriage ceremony and therefore did not give his real consent. The proceedings were heard by Baumann J in the Family Court of Australia.
The central legal issue before the Court was whether the marriage was void pursuant to s 23B(1)(d)(iii) of the *Marriage Act 1961* (Cth), which requires that both parties have the capacity to understand the nature and effect of the marriage ceremony and to give their real consent. The Court was required to determine if the medical evidence established that the deceased, Mr C Lyden, suffered from a condition that rendered him incapable of understanding the nature and effect of the marriage ceremony at the time it was solemnised.
Baumann J applied the principles that the applicants bore the evidentiary onus of proving the deceased's lack of capacity. The Court considered the expert medical evidence of Dr L, a Consultant Neurologist, who had examined the deceased prior to the marriage. Dr L's evidence, supported by his reports and affidavit, indicated that the deceased suffered from a progressive dementia, specifically Benson's Disease (a variant of Alzheimer's), and that a score of 12/30 on an MMSE test suggested a substantial organic deficit in functioning. Dr L opined that marrying was a complex decision with long-term consequences, which the deceased did not have the full capacity to make. The Court found that while the deceased's siblings and Ms Lyden believed he was capable of making decisions and participating in the marriage, this lay evidence could not displace the expert medical opinion. The Court was satisfied that the deceased did not have the capacity to give his real consent and did not understand the nature and effect of the marriage ceremony.
The Court declared, pursuant to s 113 of the *Family Law Act 1975* (Cth), that the marriage solemnised between Mr C Lyden and Ms Lyden on ... April 2007 was void pursuant to s 23B(1)(d)(iii) of the *Marriage Act 1961* (Cth). The proceedings were subsequently adjourned for a Case Management Hearing.
The central legal issue before the Court was whether the marriage was void pursuant to s 23B(1)(d)(iii) of the *Marriage Act 1961* (Cth), which requires that both parties have the capacity to understand the nature and effect of the marriage ceremony and to give their real consent. The Court was required to determine if the medical evidence established that the deceased, Mr C Lyden, suffered from a condition that rendered him incapable of understanding the nature and effect of the marriage ceremony at the time it was solemnised.
Baumann J applied the principles that the applicants bore the evidentiary onus of proving the deceased's lack of capacity. The Court considered the expert medical evidence of Dr L, a Consultant Neurologist, who had examined the deceased prior to the marriage. Dr L's evidence, supported by his reports and affidavit, indicated that the deceased suffered from a progressive dementia, specifically Benson's Disease (a variant of Alzheimer's), and that a score of 12/30 on an MMSE test suggested a substantial organic deficit in functioning. Dr L opined that marrying was a complex decision with long-term consequences, which the deceased did not have the full capacity to make. The Court found that while the deceased's siblings and Ms Lyden believed he was capable of making decisions and participating in the marriage, this lay evidence could not displace the expert medical opinion. The Court was satisfied that the deceased did not have the capacity to give his real consent and did not understand the nature and effect of the marriage ceremony.
The Court declared, pursuant to s 113 of the *Family Law Act 1975* (Cth), that the marriage solemnised between Mr C Lyden and Ms Lyden on ... April 2007 was void pursuant to s 23B(1)(d)(iii) of the *Marriage Act 1961* (Cth). The proceedings were subsequently adjourned for a Case Management Hearing.
Orders
Orders of the court
BRC1214 of 2019
BETWEEN:
MS A ALFORD AS ATTORNEY FOR MS B ALFORD AND MR A LYDEN AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF MR B LYDEN (DECEASED)
Applicants
AND:
MS LYDEN
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
11 FEBRUARY 2021
THE COURT ORDERS:
1. That it is declared, pursuant to s 113 of the Family Law Act 1975 (Cth), that the marriage solemnised between Mr C Lyden and Ms Lyden on … April 2007 is void pursuant to s 23B(1)(d)(iii) of the Marriage Act 1961 (Cth).
2. That these proceedings be adjourned for Case Management Hearing at 9.30am on 18 March 2021 in the Family Court of Australia at Brisbane.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
Background
Background to the litigation
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Evidence
Evidence Before The Court
With these principles in mind, I now turn to discuss the medical evidence before the Court.THE MEDICAL EVIDENCE As already noted, whilst solicitor Mr J was engaging, at one time, with the deceased’s General Practitioner Dr K, at the same time Dr K had decided to refer the deceased to a specialist for expert assessment. Dr L is a Consultant Neurologist and his curriculum vitae attached to his affidavit filed 4 February 2019 (relied upon by the Applicants in their case) reveals the level of his expertise. His qualifications were not challenged by the Respondent, who took the opportunity to cross-examine Dr L on 11 November 2019 (by telephone). The evidence of Dr L is that:(a)he had examined the deceased on 27 February 2007 and on 22 March 2007 but not since;(b)on 7 July 2007 he completed a pro forma report in respect of the guardianship application. The report states, inter alia, that:(i)the deceased’s current medical condition is that he was suffering from “Benson’s Disease (variant of Alzheimer’s D)” which had an onset “about 4 years ago”;(ii)a MMSE test was administered and his score was 12/30;(iii)the deceased was not capable of making decisions freely and voluntarily;(iv)in the summary section at paragraph 7.1, Dr L stated that the deceased had the capacity to understand and make his own decisions about personal health care, lifestyle/accommodation choices and financial affairs that were “simple decisions” but not “complex decisions”. The explanation for the difference was described in the form in the following terms:A simple decision would be one requiring the adult to consider choices about day to day life whereas a complex decision would require the adult to consider choices which may have long term consequences.(c)After the death of Mr C Lyden, solicitors for the Applicants asked Dr L to clarify his report for the guardianship proceedings, and by a letter to those solicitors dated 14 September 2018, Dr L stated inter alia:Mr C Lyden suffered from dementia. It was my impression that he did not have the capacity to make a decision on complex matters when last seen on 22 March 2007…I would classify a decision by Mr C Lyden to marry in 2007 as a complex choice which may have long term consequences and which he did not have the full capacity to make then.(d)This opinion was confirmed at paragraph 9 of the affidavit sworn 28 November 2018, when Dr L said:9.It is my opinion that Mr C Lyden did not have the required capacity to understand the nature and effect of the marriage ceremony when I last saw him on 22 March 2007, and could not have subsequently on … April 2007 when he is stated to have married Ms Lyden.(Emphasis added) Before his cross-examination commenced again through the annexures to the affidavit of Mr Q, further evidence of other opinions (of a similar nature) expressed by Dr L and other doctors were available, including:(a)On 28 February 2007, Dr L reported to the deceased’s General Practitioner Dr K (see “Q-19”) that the deceased “appears to have a progressive dementia with visual loss” but that the patient was required to undertake a number of investigation before a further review;(b)After the deceased (accompanied by at least Ms Lyden and his brother Mr B Lyden and sister Ms B Alford) consulted the solicitor Mr J on 18 April 2007 about a new Enduring Power of Attorney, it seemed with the intention to make a new Enduring Power of Attorney to the same people as the one signed on 23 February 2007, Mr J obtained an authority from the deceased to secure a report from Dr L “as to Mr C Lyden’s current medical condition” without seeing Dr L again (see “Q-27”). Subsequently on 10 May 2007 Dr L provided a response to the solicitor in these terms:I write in reply to your letter dated 27th of April 2007. I appreciate the need for Mr C Lyden to have an Enduring Power of Attorney and the situation proposed would seem to be in his best interest. However, in strict terms, his mental capacity is comprised because of his neurological disease and I am not able to state that he is fully competent to make this appointments”(As per the original)(c)After the deceased had moved to Victoria, he was assessed by Consultant Psychogeriatrician Dr AA from the DD Mental Health Service, who provided a report to a Dr BB on 20 June 2008 acknowledging the deceased “has a diagnosis of Posterior Cortical Atrophy but from what I understand of his presentation, this would be quite consistent with Alzheimer’s disease with significant posterior cortical involvement”. Importantly, but recalling this opinion was expressed 14 months after the marriage ceremony, Dr AA stated:From Mr C Lyden’s point of view; he agrees that he can no longer function as he did before. He does this with remarkably intact language that characterises this disorder. This is rather disconcerting as the rest of his cognitive deficits are quite severe. It means that he can give people, who do not understand the underlying difficulties, a sense that he has some capacity to contain his behaviour which I feel he does not.(Emphasis added)
Decision
Reasons for decision
Under cross-examination Dr L held to the opinions expressed in his affidavit and earlier letters and further said that:(a)he had seen the video of the wedding, but nothing he saw causes him to change his opinions of the deceased;(b)nothing had been flagged by the referring General Practitioner or the parties about the impending wedding and he would have been unlikely to have said anything about the marriage and cannot recall saying anything;(c)he was asked to do a neurological assessment, and this involved determining what the patient was suffering and what could be done about it. Dr L’s overall evidence was the condition was progressive deterioration and there was no “cure”. As a consequence of his terms of referral he did not “flag” any concerns about the marriage;(d)although the MMSE test should not be regarded as a “high level neuropsychological assessment” a score of 12/30 is “very bad” for a pretty simple test and a score below 15 would suggest of itself, a “substantial organic deficit in functioning”. No further information from family was required and for what he was trying to assess, he had enough information;(e)although test results vary a little, at this level, the deceased’s sight difficulties did not affect his test results;(f)in continually reinforcing his general opinion, Dr L explained that his view was that getting married is not a simple decision but a complex one. Whilst I regard this as a question of law, I agree with Dr L.CONCLUSION The Applicants bear the evidentiary onus of establishing that at the time of the marriage ceremony the deceased did not understand the nature and effect of the marriage ceremony. If the Applicants persuade the Court of that fact, then the deceased’s participation was not given with “real consent”. I am satisfied that the deceased did not, in April 2007, have the capacity to give his real consent and that he did not understand the “nature and effect of the marriage ceremony” on the evidence summarised as follows:(a)Whilst the deceased did offer to marry Ms Lyden and was involved in the preparation and planning of the event, his awareness of such an event does not establish he understood the effect of the marriage ceremony;(b)I accept his instructions to make a Will “in contemplation of marriage” evinces an awareness of the marriage. It is not clear if he had made a Will previously however I am satisfied that his siblings, aware of the pending marriage, facilitated and initiated not only the instructions to Mr J and the engagement of the accountant Mr CC, but also the execution. The execution of the Will and Enduring Power of Attorney on 23 February 2007 occurred only after the letter from Ms B Alford was sent on 16 February 2007, earlier referred to. Without evidence being available from either Ms B Alford (who is unable to give evidence and her daughter Ms A Alford holds her Power of Attorney) or Mr B Lyden (who has also passed away), it would be mere speculation as to the haste reasons for the undertaken to sign the Will and Enduring Power of Attorney. I say “haste’ as it is clear the documents were executed by the deceased before the solicitor had received any medical advice. That was received some days after 23 February 2007;(c)The actions of all the persons – Ms Lyden, Mr B Lyden and Ms Alford who I accept loved and cared about the deceased – leading up to the marriage and thereafter (including determining whether the deceased was capable of signing a new Enduring Power of Attorney), strongly suggest that they felt the deceased could make the decisions he did;(d)The opinion of Dr AA (admittedly 14 months after the date of marriage and not tested at the hearing) about how the deceased’s behaviour could, in effect, disguise the severe level of his functioning allows me, in the circumstances, to more easily accept the statements of the deceased’s siblings and Ms Lyden about how he was discussing the marriage and participated in the actual ceremony;(e)I however accept the submission of Mr Hackett for the Applicants, that those observations and statements by the lay witnesses and family, cannot “displace” the evidence from particularly Dr L;
Ratio Decidendi
Legal Principle Established
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