ALLAMAR & BENNY - [2012] FamCAFC 42

FAMILY COURT OF AUSTRALIA

ALLAMAR & BENNY

[2012] FamCAFC 42

FAMILY LAW – APPEAL – Where declaration made as to validity of marriage between the husband and the wife – Husband and wife both deceased – Unusual circumstances as to the wife’s first marriage – Whether trial judge erred in making declaration of valid marriage – Whether trial judge erred in finding parties had capacity to consent to marriage – Whether trial judge gave appropriate weight to medical evidence in relation to the wife – Whether trial judge erred in not setting aside decree absolute in relation to the wife’s first marriage – Appeal dismissed.

Family Law Act 1975 (Cth) ss 4(1), 51 and 113
Marriage Act 1961 (Cth) s 23B(1)(a) and (d)(iii)

Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499

APPELLANT:

Ms Allamar as legal personal representative of Mrs Carver (deceased)

RESPONDENT:

Ms Benny as legal personal representative of Mr Carver (deceased)

FILE NUMBER:

PTW

1162

1996

APPEAL NUMBER:

2009

DATE DELIVERED:

19 March 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Perth

JUDGMENT OF:

Bryant CJ, Strickland and Moncrieff JJ

HEARING DATE:

15 April 2011

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

5 November 2009

LOWER COURT MNC:

[2009] FCWA 147

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Berry

SOLICITOR FOR THE RESPONDENT:

Hartrey Legal

Orders

The appeal is dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal and if not agreed to be assessed by the Appeals Registrar for the Western Region.

IT IS NOTED that publication of this judgment under the pseudonym Allamar & Benny is approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 27 of 2009
File Number: PTW 1162 of 1996

Ms Allamar as legal personal representative of Mrs Carver (deceased)

Appellant

And

Ms Benny legal personal representative of Mr Carver (deceased)

Respondent

REASONS FOR JUDGMENT

Introduction

This is an unusual case. The appellant, the legal personal representative and only child of Mrs Carver (“the wife”), now deceased, wants to overturn a decision of Martin J which declared the marriage between the wife and Mr Carver (“the husband”), also deceased, to be a valid marriage. The respondent is the sister of the husband and his legal personal representative.
Even more unusually, the application to have the marriage declared invalid by the appellant was brought after the death of both the husband and wife and they had no knowledge of this challenge during their lifetimes.
Although the current proceedings commenced in 2007 they have their genesis in proceedings commenced by the appellant on behalf of the wife in February 1996 just shortly prior to the wife’s death on 16 February 1996. The application then filed sought final orders for property settlement and spousal maintenance. Before those proceedings had been concluded the husband died in March 2005 and then the following year the appellant filed an amended Application for Final Orders seeking a declaration as to the validity of the marriage between the husband and the wife.
In 2007 the appellant filed a Notice of Discontinuance of the proceedings concerning the declaration as to the validity of the marriage and then filed two subsequent applications, one seeking that the decree nisi granted on

8 December 1993, formally dissolving the marriage between the wife and her first husband, “be quashed/set aside” and one filed in the following year seeking a “decree of nullity of marriage” between the husband and the wife.
When the proceedings came on for hearing before Martin J, her Honour noted that it was not open to the appellant to bring an application seeking a decree of nullity pursuant to s 51 of the Family Law Act 1975 (Cth) (“the Act”) because s 4(1) of the Act in the definition of matrimonial cause, and s 44(1A) of the Act, provide that proceedings for a decree of nullity can only be instituted by either party to the marriage or jointly by both parties. However, her Honour noted that s 113 of the Act, which related to proceedings for a declaration as to the validity of a marriage or divorce pursuant to s 4(1)(b), is not restricted to parties to the marriage. Her Honour was satisfied that the appellant had the requisite standing to seek a declaration as to validity of the marriage pursuant to s 113, as a person with a reasonable interest. She observed that while the appellant had maintained her application for a decree of nullity, the case proceeded on the basis her Honour had jurisdiction and the real issue was the validity of the marriage.
The appellant contended at trial that the marriage of her mother to Mr Carver was invalid. The matter was heard on various dates in October and November 2008 and in January, February and March 2009. By order made on 27 October 2009 her Honour determined that the marriage between Mrs Carver and Mr Carver celebrated in March 1994 was valid and published her reasons for so deciding.
The appellant appeals those orders and seeks that:
1.the orders made by Martin J on 27 October 2009 be set aside;
2.the cost of the appeal be paid by the respondent;
3.the decree absolute dissolving the marriage between Mrs Carver and Mr H be set aside; and
4.there be a declaration that the marriage between Mrs Carver and Mr Carver is invalid and void.
The appellant relied upon an Amended Notice of Appeal filed 7 September 2010 in which she set out 13 grounds of appeal. Although her summary of argument addressed the original notice which contained some 38 grounds, she acknowledged that the summary of argument should be read as only relevant to the 13 grounds on which she now relies.

Preliminary matters

The appellant brought an application for the admission of further evidence filed on 25 August 2010 which was dismissed at the commencement of the appeal and separate reasons delivered ex tempore in relation to that application.
The respondent also filed an application on 4 April 2011.
In that application the respondent sought:
1. The appeal be dismissed pursuant to Rule 22.45(2)(a)(i) of the Family Law Rules 2004 (“the Rules”) because of the appellant’s non compliance with orders made on 21 June 2010 for the preparation of material for the appeal including the appeal books.
2.   In the alternative the appeal listed for 15 April 2011 be stayed pending the appellant within 28 days or such other timeframe fixed by the Court, complying with orders made on 21 June 2010 and paying two outstanding costs orders which have been made against the appellant but remain unpaid.
3.   In the alternative if the appellant failed to comply with the orders made on 21 June 2010 the appeal be dismissed.
4.   Finally, in the alternative to 1, 2 and 3 the respondent have leave to rely upon a summary of argument and list of authorities filed with the application, those documents being filed on 4 April 2011 and being out of time and provided for by the orders of 21 June 2010.
The orders of 21 June 2010 made by the Regional Appeals Registrar were orders which dealt with preparation of the appeal books. In particular, paragraph 2(f) required that the appeal book for which the appellant was responsible was to include “[t]he relevant parts of the transcript…”. Paragraph 6 of the Regional Appeals Registrar’s orders said “the part of the transcript relevant to the appeal shall comprise the transcript of the hearings on 28 October 2008, 11 November 2008, 16 January 2009, 6 February 2009 and 27 March 2009”.
Despite repeated correspondence between the Court and the appellant and submissions by the respondent, the appellant did not file the transcript as provided in paragraph 6 and only extracts of the transcript were provided.
It emerges fairly clearly from correspondence which was annexed to affidavits that the appellant had taken the position that she was only required to file relevant transcript, she construing “relevant” as meaning relevant to the matters for which she was contending as part of her case. Again it seems very clear from the correspondence that she took the view that she was not required to produce transcript which might be relevant to the respondent’s case but not to hers. As was pointed out to her by the Registrar, by Thackray J in interlocutory proceedings on 11 April 2010, and by us, the obligation contained in paragraph 6 was clear and she had not complied with it.
More importantly a letter from the Regional Appeals Registrar dated

25 February 2011 explained to the appellant that if she continued to elect not to provide the transcript the Full Court might dismiss the appeal. Alternatively, it was explained to her that if the appeal proceeded and if there was any discrepancy between the parties as to what transpired at the trial the Full Court might draw an adverse inference from the absence of the transcript and prefer the respondent’s version of events. In addition it was explained to her in an interlocutory judgment by Thackray J on 11 April 2010 that it was her responsibility to provide transcript which might support her grounds and that if such evidence was not available then she may face difficulty in establishing the grounds she relied upon.
We were satisfied that the appellant was aware of the effect of not providing the transcript and in any event no application was made by her to adjourn the proceedings further. Despite an application by the respondent for summary dismissal of the appeal or for it to be stayed, the respondent did not ultimately pursue her application.
Leave was given, without objection, for the respondent to rely upon the summary of argument and list of authorities filed on 4 April 2011.
Without objection, the appellant was given leave to hand up some authorities and some further submissions during the course of the appeal.

Chronology of relevant events

As the facts in this case are somewhat unusual it is necessary to provide a brief chronology.
The following extract of events has been taken from the trial judge’s reasons for judgment, paragraphs 8-20, which are not the subject of challenge:
8The wife was born in 1928 to a [European] father, and a Portuguese Indian … mother. Her mother apparently died in childbirth, and [Mrs Carver] was brought up in an orphanage in [India] until she was about 16 years old. She immigrated to Australia in 1974.
9 [Mr Carver] was born on 17 December 1918 and was an Industrial Officer/Clerk with the then PMG until he retired early, on health grounds, on 2 January 1975.
10 [Mr and Mrs Carver] commenced a de facto relationship in about 1979 to 1981.
11 They had both been married previously, the husband to [Ms Smyth], and the wife to [Mr H]. The husband had been widowed in 1976.
12 The evidence of [Mrs Carver], filed in support of an application for dissolution of the marriage, was that she had met [Mr H], who was a British Naval Engineer, in 1947. The couple eloped between 1947 and 1950, and went through what was said to be a marriage ceremony, conducted in Bombay Harbour in India. The ceremony was conducted by a person who purported to be the captain of the vessel upon which [Mr H] was serving. Her husband had advised he would attend to, and keep, the documents for safe-keeping. She had never seen, or received, a marriage certificate.
13 [Ms Allamar] was born in 1950 in Bombay.
14 [Mr H] was often away on long voyages at sea. The only notification the wife had received of her husband’s death was advice from one of her husband’s friends (who may have been a fellow crew-member) that [Mr H] had fallen overboard in 1952. There was no other evidence of [Mr H’s] death.
15 According to the court file in relation to the divorce of [Mr and Mrs H (Carver)], some enquiries were made in an attempt to ascertain whether [Mr H] was still alive and whether there was any evidence of the marriage. The husband instructed the firm, [A Firm] (as they then were), on behalf of [Mrs Carver], to take the necessary steps so the couple could be free to marry.
16 Advice was sought as to the appropriate course of action from the Attorney General’s Department in December 1992 and 1993, and an officer of the Department wrote to [A Firm] on 8 April 1993. The letter notes that, given the limited evidence and information available concerning the marriage, it would be difficult to obtain expert opinion on the validity of the marriage. It may be that the common law presumption of validity of marriage would apply (see Re Peatling (Deceased) [1969] VR 214) from evidence of the performance of the marriage ceremony, followed by cohabitation of the parties. However, in view of the wife’s poor recollection of the ceremony, it may be necessary to rely on the common law presumption of marriage through cohabitation as husband and wife. Since there is no record of the death of [Mr H], the wife would not be precluded from obtaining dissolution of the marriage. In light of the apparently poor relationship between the wife and [Mr H’s] family, and their attitude to the marriage, it could not be said the disappearance of [Mr H] was consistent only with his death.
17 The letter goes on to conclude:
“I think [Mrs H] would have a lot of difficulty proving that the marriage was not valid. On the material you have furnished, it seems to be that the preferred course of action would be to make an application for dissolution of the marriage, relying on the presumption of validity of the marriage and the lack of evidence of death of [Mr H].”
18 An application for dissolution of marriage was filed on 4 August 1993. Personal service on the respondent was dispensed with, unconditionally, on 25 August 1993. A decree nisi in relation to that marriage was granted on 8 December 1993, and became absolute on 9 January 1994. The Court found that the marriage of [Mrs & Mr H] had been solemnised at Bombay, India, on a date unknown in 1947 to 1948.
19 [Mr and Mrs Carver] were married on 30 March 1994. The marriage ceremony was conducted by a marriage celebrant at the District Registrar’s Office, Fremantle, and the two witnesses were the husband’s sisters, who gave evidence in these proceedings.
20By November 1994, the wife’s health had deteriorated. The husband cared for her at home, under difficult circumstances, for some time, but her health further deteriorated and in September 1995, she was admitted to a nursing home. The husband had developed chest pains and there was evidence of cardiac ischaemia which his general practitioner, [Dr M], has said (in correspondence in evidence before me) may have been aggravated by the “stress and the physical requirement of nursing his wife at home”. “[Mr Carver] managed his wife at home as long as he possibly could and, in my opinion, longer tha[n] most families would have coped and reluctantly sought placement”.
The facts thus far are uncontroversial save that the appellant asserts that if there was a properly made application for divorce (which she asserts in the alternative was not the case) then the decree absolute should be set aside for procedural defect. The appellant further asserts that the marriage between [Mr and Mrs Carver] either did not take place at all or if it did, it again is attended by the defect that [Mrs Carver] in particular, but also [Mr Carver], did not have the capacity to understand the nature and effect of the marriage ceremony.
Much of the balance of the chronology as found by the trial judge was controversial. However, to complete the trial judge’s chronology as set out in her reasons for judgment she said:
21 Shortly afterwards, [Ms Allamar] transferred her mother from the nursing home to a nursing home in Adelaide. [Ms Allamar] had moved to South Australia with her family in 1979, and, from 1989, when there was apparently a “falling out” with [Mr Carver], had little contact with her mother until shortly before her death, for which she blames [Mr Carver].
22 [Ms Allamar] has claimed that [Mr Carver], having obtained two Enduring Powers of Attorney for her mother, continued to act to defraud her since her “arranged” marriage. He had kept her under “house arrest” to allegedly deprive her of her liberty until he was able to “abandon” her in a nursing home against her wishes and without [Ms Allamar’s] consent.
23 On 14 February 1996, [Ms Allamar] commenced proceedings for property settlement and spousal maintenance on behalf of her mother who, by then, was certainly incapable of giving instructions to commence proceedings, and for quite some time previously, was not capable of forming an intention to separate from her husband. It is apparent that [Mr and Mrs Carver] were physically separated by the ill health of [Mrs Carver], and then by [Ms Allamar’s] actions in moving her mother to South Australia.
24 [Mrs Carver] died, [in] February 1996, when she was 67 years old.
25 [Mr Carver] died [in] March 2005 at 86 years of age.
26 [Ms Allmar] was appointed the administrator for her mother on 14 November 1995, after her mother was declared a “protected person” by the South Australian Guardianship and Administration Board.
On 31 January 2000 Letters of Administration of the wife were granted to the appellant “for the sole purpose of being substituted as the applicant in proceedings numbered 1162 of 1996 in the Family Court of Western Australia”.
On 13 September 2006 the appellant filed an Amended Application for Final Orders seeking a declaration as to the validity of the marriage as between the husband and the wife. In 2007 she discontinued those proceedings.
On 10 July 2007 the appellant filed an Application in a Case seeking the decree nisi granted on 8 December 1993 “be quashed/ set aside”.
On 23 October 2008 Letters of Administration of the husband were granted to Ms Benny, his sister.
The matter came before Martin J for hearing over five days on
28 October 2008, 11 November 2008, 16 January 2009, 6 February 2009 and 27 March 2009. Her Honour made final orders on 27 October 2009 (as amended on 30 November 2009) and delivered reasons for judgment on 5 November 2009. There was to be a further hearing in relation to the issue of the property settlement proceedings on 30 November 2009.
Her Honour noted in the preliminary part of her reasons that although proceedings for property settlement had commenced prior to the death of the husband, the husband’s death had the effect that the Court ceased to have jurisdiction to make an order for property settlement. We were informed that the application for property settlement had subsequently been dismissed.
Ms Allmar filed a Notice of Appeal on 17 November 2009 and an Amended Notice of Appeal on 7 September 2010.

The gravamen of the appeal/issues in the appeal

Her Honour noted that s 23B(1) of the Marriage Act 1961 (Cth) (“the Marriage Act”) sets out the grounds upon which a marriage solemnised after 1985 is void. The relevant provisions are:
(a) either of the parties is, at the time of the marriage, lawfully married to some other person;
…
(d) the consent of either of the parties is 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…
and not otherwise.
Her Honour noted that the appellant was relying on subsection (a), namely that “either of the parties is, at the time of the marriage, lawfully married to some other person” and also (d)(iii), namely, “(one of the parties) is mentally incapable of understanding the nature and effect of the marriage ceremony …”.

The appellant claimed her mother was “totally illiterate and lacked English language skills” as well as suffering from memory loss and multi infarct dementia so was mentally incapable of understanding the nature and effect of the marriage ceremony. Her Honour also noted that there was an implication that there may have been some duress or fraud in relation to the marriage:
52.… for example, it may not have been her mother who was actually present at the ceremony and married [Mr Carver]. She argues that her mother’s divorce from [Mr H] was procured by [Mr Carver], and not really by her mother, who was not capable of such action anyway, and so the divorce was not valid. Therefore, her mother was still married to “some other person” at the time she entered into her subsequent marriage to [Mr Carver]. She claims that, for this reason, her mother’s marriage to [Mr Carver] is void.
Her Honour considered the appellant’s argument that it was “not her mother who instructed solicitors [A Firm] to obtain a divorce on her behalf”, noting that although it was agreed by both parties that the wife was illiterate yet capable of signing her own name, the wife’s solicitor at the time was not called to give evidence as to the nature of her instructions and the circumstances of the wife swearing the affidavit for the 1993 divorce proceedings and why the jurat clause did not refer to the wife’s illiteracy. Her Honour also pointed to the circumstance that there was no evidence by other members of the wife’s family who filed affidavits and gave evidence in the proceedings of the wife having difficulty with the English language, and said further at paragraph 60:
60.There is no indication as to whether or not the Magistrates [sic] who dispensed with service on [Mr H] unconditionally, and who granted the decree nisi, was aware that the wife was illiterate, and that there was any possibility of the wife not understanding the application and the affidavit in support, whether through illiteracy, or lack of command of the English language. …
Her Honour further noted affidavit evidence of the husband that prior to the onset of the wife’s Alzheimer’s disease in late 1994 he did not have reason to believe the wife had difficulty with the English language. There was also oral evidence by the husband’s sisters, Ms Benny and Ms T, which is of similar effect; namely that the wife did not have trouble conversing in the English language.
Her Honour acknowledged medical evidence that the wife lacked some English comprehension when she was quite ill prior to the time her mental condition deteriorated but this was not at the time of the marriage to the husband.
Having regard to the “evidence overall” the trial judge accepted the wife “had sufficient understanding of conversational English to relate the events referred to in her affidavit” and would have understood its contents without translation had it been read to her.
Her Honour noted, in relation to the appellant’s argument to set aside the decree absolute, the test whether the decree is a nullity lies within s 113 of the Act and that there are limited circumstances where such declaration can be made. She noted at paragraph 73:
73.In the present case, the issue is clearly whether the marriage is voidable, rather than void.
In her Honour’s concluding remarks she notes that there was a “real possibility” the wife “was a widow at the time of the divorce” and “may have been free to marry for many years”. Her Honour then referred to the affidavit evidence of the husband and other evidence before the Court, including the letter from the Attorney-General’s Department and the wife’s own affidavit. Her Honour again acknowledged the irregularity in the wife’s affidavit in support of the application for dissolution. Her Honour considered it relevant that neither the wife nor the husband had any opportunity to give any evidence about the circumstances of the divorce as both had died prior to the proceedings. Her Honour also commented that there was no plausible explanation for Ms Allamar delaying challenging the divorce where substantive proceedings had been filed a decade before.
Her Honour was not satisfied that the circumstances of the case were such that the decree absolute should be set aside.
Having determined that Mrs Carver was not lawfully married to another person, her Honour turned to the s 23B(d)(iii) issue of the parties’ capacities to consent. Her Honour noted at paragraph 88:
88. The time for determining whether or not a party is capable of understanding the nature and effect of the marriage ceremony is at the time of the ceremony.
Her Honour then separately considered the capacity of both the wife and the husband.
Her Honour set out, in detail, medical evidence in relation to the wife, including extracts from her patient file at Fremantle Hospital, but determined the evidence was “not sufficient to establish, on the balance of probabilities” that the wife “did not have capacity at the time the divorce was granted or at the time of the marriage ceremony”.
In noting the medical evidence in relation to the husband her Honour said at paragraph 152:
152.The medical evidence does not support [Ms Allamar’s] claim that [Mr Carver] did not have capacity to enter into marriage in March 1994 – only that he had health problems in the 1970’s, which led to him being retired, and in the period leading up to his death, more than ten years after the marriage.
And, at paragraph 182:
182.As to [Mr Carver’s] capacity at the time of the marriage, in this regard, I am satisfied [Ms Allmar’s] application was entirely ill-founded.
Her Honour did note that the “unusual” circumstances of the case were such that it would be appropriate to make a declaration under s 113 and that in the exercise of her discretion, and having regard to the evidence, declared that the marriage between the husband and the wife was a valid marriage.

The grounds of appeal

The appellant’s amended Notice of Appeal filed 7 September 2010 contains 13 grounds of appeal. However, the appellant’s summary of argument filed on 28 September 2010 (dated 7 December 2009) refers to 38 grounds of appeal which appear to be the grounds of appeal contained within the original Notice of Appeal filed on 17 September 2009. At the hearing the appellant confirmed that grounds 14 to 38 had been abandoned and that she only wished to pursue grounds 1 to 13, as contained within the amended Notice of Appeal.
For convenience the 13 grounds of appeal can be summarised and grouped as follows:

Mental incapacity – grounds 1, 4 and 5

The appellant alleges that the trial judge erred in not taking into account the wife’s multi infarct dementia diagnosis and limited English language skills and that as a result she was unable to give real consent to documents that caused the decree nisi to issue and become absolute between the wife and Mr H, her first husband. Further, it was contended she lacked the mental capacity to enter into a valid marriage with the husband in March 1994.

Denial of natural justice/procedural irregularity – grounds 2, 6, 7, 9, 10 and 12

The appellant alleges that the trial judge erred in not making findings that the divorce between the wife and Mr H denied them natural justice as there was not consent, and erred in not making findings that there were procedural irregularities in relation to service of the decree nisi, such that it should not have become absolute. The appellant further alleges the solicitors acting on behalf of the wife in her 1993 divorce proceedings had no authority to act.

Absence of jurat clause and certificate for blind and illiterate persons attached to documents used in the divorce proceedings – grounds 1, 3, 5 and 11

The appellant alleges that the trial judge erred in not taking into account that affidavits sworn by the wife in her divorce proceedings were inadmissible at law as there were no jurat clauses for blind and illiterate persons.

Unjust dispensation of the Rules in relation to the jurat clause – ground 5

The appellant alleges that the trial judge erred in not justifying dispensation of the Rules in relation to the jurat clause for documents.

Weight – ground 5

The appellant alleges that the trial judge erred in giving weight to the evidence of the husband’s two sisters in relation to the marriage ceremony between the husband and the wife in March 1994.

Dispensation of service in relation to the divorce proceedings – ground 6

The appellant alleges that the trial judge erred (in her capacity as Registrar in the divorce proceedings between the wife and Mr H in 1993) in dispensing with personal service.

Judicial error – grounds 4, 8, 11 and 13

The appellant alleges that the trial judge erred in failing to recognise the marriage between the husband and the wife “is null and void” under s 23B of the Marriage Act; by making assumptions about instructions the wife had given in relation to documents prepared for the 1993 divorce proceedings; in failing to apply relevant legislation and rules to set aside the divorce order; in applying incorrect principles of law; in making findings unsupported by evidence; in making incorrect findings of fact; and in improperly exercising judicial discretion to arrive at an incorrect decision.
At the hearing of the appeal it was plain that the appellant’s main criticism of the judgment was that there was insufficient weight given to the available medical evidence which she contended would have established lack of capacity to divorce Mr H and to marry the husband.

Discussion

Mental incapacity

In relation to mental incapacity, the appellant relied upon two parts of s 23B(1). First, subparagraph (a), that either of the parties is, at the time of the marriage, lawfully married to some other person; and secondly subparagraph (d)(iii), that the consent of either of the parties is not a real consent because that party is mentally incapable of understanding the nature and effect of the marriage ceremony.
As to subparagraph (a), the appellant argued at trial that the divorce from the mother’s first husband was procured by the husband and not really by the wife, who the appellant argued was not capable of such action anyway, and so the divorce was not valid. Thus she argued her mother was still married to “some other person” at the time she entered into her subsequent marriage to the husband and that as a result her marriage to the husband was void.
As to subparagraph (d) (iii), her Honour concluded 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”. There was no challenge to her Honour’s conclusions about what was required for a person to have appropriate capacity to enter into a marriage.
In order to appreciate the findings by her Honour it is necessary to refer in detail to the medical evidence produced by the appellant as to her mother’s capacity as well as the other evidence bearing upon this topic. Her Honour noted (Reasons for Judgment, paragraph 101) that the appellant’s submission at trial was that her mother “lacked capacity since around 1991/92 in relation to her dementia”. Her Honour described the position of the appellant as being her mother could not understand the ceremony, or documents in relation to the ceremony, and that she did not give real consent to the marriage.

The evidence of Dr M

The evidence of Dr M, the General Practitioner to the husband and the wife, was in the form of a letter annexed to an affidavit of the appellant filed on 28 July 2008, which said:
1994 [Mrs H] married [Mr Carver]. Later that year she was admitted to Fremantle Hospital in a confused state. A diagnosis of multi-infarct dementia was made and it was also felt that she may have Alzheimer’s disease.
[Mrs Carver’s] behavior [sic] became increasingly difficult to manage eg refusing to shower, refusing to use walking frame despite being very unsteady on her feet. She had speech difficulties – unable to find some words, talking nonsense at times.
Dr M was not called to give evidence at trial. There is no affidavit evidence from her.

Fremantle Hospital patient summaries

Fremantle Hospital patient summaries for 1992 indicated that the wife had then suffered memory loss and giddiness. Dr L (locum for Dr M), in writing to a doctor of the Diabetic Clinic at Fremantle Hospital stated:
[Mrs H] presented to me with a history of mainly giddiness and poor memory….Mental state examination revealed poor short term and intermediate memory, poor concentration and poor arithmetic skills…I thought the likely causes for [Mrs H’s] symptoms were alcohol related liver disease, poorly controlled diabetes and persistent hypertension.
Dr L observed that changes had been made to her medication as well as having emphasised the importance for her to gradually reduce her alcohol intake which he noted she had supposedly done over a three week period.
Dr L observed that “[s]he still has memory problems but I believe this is due to her chronic abuse of alcohol”. The notes indicate that Dr L had been seeing the wife at regular intervals from August 1992 through until the date of the letter which was 12 October 1992.

Fremantle Hospital patient file

Her Honour noted that the Fremantle Hospital patient file for the wife was admitted into evidence and, inter alia, contained correspondence from the Deputy Director of Clinical Services, Fremantle Hospital, to the Senior Court Officer, Coroner’s Court, South Australia, dated 25 September 1996, which inquired into the wife’s death. The hospital had been asked to provide a summary of the wife’s treatment and her medical history was documented in that letter.
Her Honour commenced by saying at paragraph 107:
On 6 July 1993, on an emergency nursing assistance form, [the wife] had been described as “oriented and alert”.
Her Honour noted that her medical history for 5 January 1994 (the date closest to the date of marriage on 30 March 1994) stated as follows:
Emergency Department attendance with abdominal pain. Investigations performed.
Her Honour thus said, Reasons for Judgment, paragraph 109:
109.No mention was made of the wife being in a confused state, suffering from dizziness, or having memory problems.
Her Honour then detailed the balance of the entries between November 1994 and October 1995 documenting the wife’s various attendances at Fremantle Hospital, which are set out in the Reasons for Judgment at paragraph 110. Suffice to say that although the notes indicate that in November 1994 the wife’s short term memory was poor and that she had no insight into her memory impairment until the last part of 1995, the notes did not otherwise indicate lack of capacity or comprehension.
The Fremantle Hospital files contained a letter from a Dr S, a psychiatrist at Fremantle Hospital, dated 15 November 1994. Again, the totality of that letter is set out in the Reasons for Judgment at paragraph 112. We consider the following passages are of relevance:
… I visited her on Ward B9N on 11 November 1994 and was able to speak to her husband who was there as well. She was admitted 4 days previously with increased confusion and agitation particularly at night…
She (the wife) has settled over the last few days but her short term memory remains poor…Other investigations have been normal…According to her husband she has become progressively more forgetful over the last 2 years being denied any major problems at home. They both tell me she drinks 4 cans of beer per day and insists it is never more than this. They strongly deny there has been a history of problem drinking…
She had a de facto marriage relationship with her husband until a year ago when they married…He is 70 and has been out of work for many years. He tells me he drinks no more than 6 cans of beer a day…They tell me they are a self contained couple with few other contacts or friends…There has been a strong suspicion of alcohol misuse in the past.
When I saw her she was cheerful but easily became anxious when we discussed alcohol. She had no insight into her memory impairment and her husband did not seem easily worried about that. She was keen to get home. She was mobile and steady on her feet.
Plainly this patients [sic] memory is now poor and the recent exacerbation is probably due to a urine infection. Of course she may have had a small stroke and, of course, alcohol withdrawal cannot be ruled out. She is now keen to go home and as her husband is reluctant to receive any extra help via community services these have not been arranged. I have however asked them to come to the Outpatient Clinic in a fortnight for a final review.
The report also said:
There have [sic] been relatively little contact with [the wife’s] daughter who now lives in South Australia.
The outpatient records for 15 December 1994 indicated that the appellant had alleged that:
… [the husband] had been taking financial advantage of [the wife] and deliberately giving her alcohol to impede her functioning.
The records went on to say that the appellant wanted to care for her but the wife had said she wanted to be with the husband.
There was an inpatient summary prepared and typed on 1 December 1994 which related to the admission of the wife to the hospital for that period
13 November 1994 to 18 November 1994. In that report the doctor had stated:
This sixty-six-year old lady presented with a deteriorating mental state which appeared to go back over some years. There was a history of marked alcohol consumption. She appeared confused, disorientated; there was no focal, neurological deficit.
Her Honour referred to a pro forma document completed by Dr A of Fremantle Hospital, having been a request from the Guardianship and Administration Board on 29 November 1995 in relation to the appellant’s challenge to an Enduring Power of Attorney entered into by the wife in late 1994. Under details of disability suffered by the wife Dr A had written “Multi-infarct Dementia” and “diabetes Mellitus”. Dr A had further stated that the wife is “confused, disorientated, innappropriate [sic], at times agitated & incapable of caring for herself”. Her Honour noted that to the question “[h]ow long has the disability been evident?” Dr A had written “some years”. Her Honour found that on the evidence it was clear that was not the case.
Dr B treated the wife after she moved to South Australia with the appellant. In an undated letter Dr B had stated:
I became involved with [the wife] in 1995. When I first met her she was severely brain damaged with no communication and had obvious gangrene of her legs and she subsequently died from these problems. I’ve reviewed the notes that I have been given about her from Fremantle Hospital. It is obvious that she has had that particular problem going back for a while. She was admitted to Fremantle Hospital on 13.11.94 and she was given a diagnosis of Multi Infarct Dementia and Alzheimer’s disease was also queried. I would say at that stage that it would be impossible for her to have been able to transfer her power of attorney and informed consent in November of 1994.
A previous letter dated 12.10.92 also noted that she had poor memory at that stage. Although it is unclear from that letter just how severe that was. I would reiterate that. I don’t feel it would be possible matched on the information that I have for [the wife] to have given informed consent to anything in November of 1994.
In a letter dated 8 January 1997 Dr U, Consultant Geriatrician, from the Department of Geriatric and Rehabilitation Medicine at the Royal Adelaide Hospital said:
[Mrs Carver] had been referred from her general practitioner, [Dr B] of …, Gawler, for assessment. These records (from Fremantle Hospital) show that she was admitted to Fremantle Hospital in November 1994 where a diagnosis of dementia due to multiple strokes was made”.
…
The history which was obtained during her admission to the Royal Adelaide Hospital was that she had become demented in the last three years. Three years previously, in 1992, she had had a heavy alcohol consumption but was cognitively intact and independent with mobility and activities of daily living. There had been a marked deterioration in 1995, particularly in the last three months and there was a history that she apparently had a cerebrovascular accident in September or October 1995 and become [sic] much worse after this. (Trial judge’s emphasis).

The appellant relied upon the results of a Cranial C.T. scan performed on the wife on 9 November 1994, which noted “[s]mall focal areas of infarction”. Her Honour observed however, in her Reasons for Judgment at paragraph 24 “the results do not state whether these small areas of infarction had impacted upon the wife’s mental capacity, and particularly as to whether or not this would have impacted her ability to understand events, particularly the nature and effect of the marriage ceremony, several months earlier.”
The wife’s cause of death as stated in her death certificate was:
• multiple cerebro-vascular accidents – duration, 1 year;
• diabetes mellitus – 2 years; and
• alcoholism.

Relevant Documents – Powers of Attorney and Wills

Completing the analysis of the medical evidence her Honour noted that Enduring Powers of Attorney were executed by the wife in December 1994 and that the validity of these documents had been challenged by the appellant. At that time her Honour noted that it was not disputed that the wife had been diagnosed with multi infarct dementia. Her Honour noted however that the Power of Attorney dated 7 December 1994 was witnessed by her psychiatrist at the time, Dr S. Relevantly, her Honour noted that the wife then appeared aware that she had changed her name. Her Honour said that although there were some difficulties proving her signature, she appeared to have signed them in her married name and not the name she had used in past documents.

The evidence of the husband’s sisters Ms Benny and Ms T

Her Honour noted that, as far as illiteracy was alleged, there were copies of various Wills apparently signed by the wife and none of them, including the Will under which the daughter and son were beneficiaries dated 8 October 1987, contained any reference to the wife’s illiteracy. Her Honour noted that the Wills dated 23 October 1991 and 3 February 1994 bore the signature of the wife’s maiden name with the latter will specifically stating:
This will is made in contemplation of my marriage with [Mr Carver], but shall not be void if the marriage does not take place.
On 13 July 1994 a Will apparently signed in similar handwriting was signed in the married name of the wife. Her Honour noted it appeared to have been prepared through the Public Trustee’s office.
In juxtaposition to the medical evidence her Honour considered the evidence of the two witnesses present at the marriage of the parties, the husband’s sisters Ms Benny and Ms T. Her Honour noted that the appellant was not present at the marriage of the parties and that she acknowledged that she was not aware that a marriage had taken place until notified after the event. Further, she accepted that she had not seen her mother for some time, the last being very briefly from a distance in around May 1994 at Perth Airport when she was on her way overseas, and before that some time around 1992.
Ms Benny filed an affidavit in the proceedings and gave evidence. Her evidence was that the husband and wife both seemed happy and she recalled a conversation where the wife had remarked “what a good man I’ve got”, referring to the husband. Ms Benny was aware that plans for the marriage had taken place sometime prior to the actual marriage because there was some difficulty arranging paperwork, apparently due to the wife already being married.
Ms Benny stated in evidence that she recalled the wedding, which was held at the Fremantle Registry Office, and saw nothing in the wife’s behaviour at the Registry Office or the unit afterwards which would make her question her capacity to understand that she was marrying the husband. She had seen her sign the Marriage Register and was not aware that she was illiterate.
Ms Benny also noted a marked decline in the wife’s health some months after the wedding. Finally, Ms Benny indicated that on a later trip to get some diabetic medication for the wife she recalled she remained in the car with the wife while the husband went into the shop. She stated that the wife kept asking where the husband was and while she could not recall exactly when this occurred, she could say that it was after the marriage but before the wife was admitted to hospital. Her Honour noted that it still appeared the wife knew who the husband was, remembered his name and was aware of his presence or absence from her. Her Honour noted this accorded with other evidence that the wife was anxious that the husband was not with them.
Ms T recalled the wife signing the Marriage Register herself but also conceded she did not know the wife was illiterate. She said that she had not spent much time with the husband and wife, save on occasions when they had visited her home, and even then the wife would direct her conversation at the husband. She did recall the husband and the wife conversing with each other in English. Ms T did not recall noticing a change in the wife’s health, mainly as a result of her not having spent a significant amount of time with the wife.
Her Honour observed that by their own admission the recollections of both Ms Benny and Ms T were not precise as far as dates and times were concerned in relation to other details of their involvement with the husband and wife. Her Honour noted however that notwithstanding that they saw the parties only occasionally, they did spend some time with the husband and wife together and both witnesses gave evidence that the husband and wife seemed to be in love and only wanting to be together. Her Honour noted the extraordinary claim by the appellant that there was not one “skerrick” of evidence to prove that her mother was even physically present before the celebrant in 1994, pointing to the fact there was no photographic evidence and no documentary evidence, for example an identification card or passport. Her Honour rejected this assertion, accepting the evidence of Ms Benny and Ms T that while they were not close to the wife, they knew and recognised her and that it was her wedding to their brother at which they were witnesses and that she appeared happy at the wedding ceremony. Her Honour observed that there was no evidence to the contrary. Her Honour also noted the wedding was conducted at the Fremantle Registry Office and no concerns were raised by the marriage celebrant or Registry staff over the parties’ intention to marry.
Her Honour then went on to deal with the assertion by the appellant that the husband did not have the mental capacity to enter the marriage. She contended that as he had been suffering from a “brain disease” it was not possible for him to have entered into a marriage validly. She relied upon Commonwealth medical reports from 1974 onwards and a radiology report “MRI of Brain and MRA” dated 27 May 2003, some nine years after the marriage ceremony. Her Honour noted that in evidence was a document called ‘Medical Examination of Permanent Officers for Continued Employment’ dated June 1974. The report noted the husband was suffering, at that time, from stenosis of the carotid artery on the right side and the husband was retired from his employment as a result. A subsequent examination was conducted in August 1976 and noted that his condition had remained stationary since the last examination.
Before her Honour the appellant asserted that the radiology report in 2003 said that the husband suffered stenosis, that he appeared not to have had an operation and he died with it in 2005. The appellant said this “verified” to her that the husband was not aware of what he was doing, whether it was getting married or divorced.
As referred to above, her Honour observed that the evidence did not support the appellant’s claim that the husband did not have the capacity to enter into marriage in 1994; only that he had health problems in the 1970s, which lead to him being retired, and in the period leading up to his death which was more than ten years after the marriage.
Ms Benny, the husband’s sister, was able to give evidence in relation to his health. She said that he was very ill in 1974 long before he met the wife but he eventually made a complete recovery. Her evidence was that he “wasn’t in the least mentally deficient”.
Her Honour noted this accorded with the evidence of his GP, Dr M, as far back as October 1974. In paragraph 155 to 158 of her Reasons for Judgment her Honour noted other evidence regarding the husband from which it is clear that there was no issue regarding his mental capacity.
Next, her Honour noted that Counsel for the respondent referred to her a judgment of the Guardianship and Administration Board which was delivered on 29 June 2004. The proceedings were as a result of an application by the appellant in 2002 for the appointment of an administrator and guardian for the husband in relation to the legal proceedings then underway. This application was opposed by the husband. The Board did not table medical reports it had received as evidence in the proceedings, but it quoted from those reports. In particular, reference was made to evidence of a consultant physician from … Hospital, who provided a report of his contact with the husband in September/ October 2003 and stated:
I have no reason to think that [the husband] would be unable to make reasoned decisions for his own welfare and financial affairs.
Another doctor in a report dated 6 November 2002 concluded:
As a result I cannot find any evidence that [the husband] has any degree of cognitive impairment and do not support the appointment of a guardian or an administrator for him.
The appellant’s application was dismissed with costs and the judgment indicated that the appellant’s stated purpose for bringing the application – so that the family law proceedings could be resolved – may be considered an abuse of process of the Board and, as such, vexatious.
Finally in relation to the issue of mental capacity, and again as referred to above, her Honour noted that s 113 of the Act provides that the Court may make such declaration as is justified and that it is a discretionary remedy. In the circumstances her Honour thought it appropriate for a declaration to be made in this case. She noted that at common law there is a presumption of validity of marriage upon evidence that the parties went through a ceremony of marriage and then lived together as husband and wife. She observed that the marriage was valid unless the Court is satisfied on the balance of probabilities that it is not and that the common law presumptions of marriage are strong and can be rebutted only by positive, and not simply clear, evidence to the contrary.
Thus her Honour rejected the appellant’s position that the wife did not have capacity to apply for a divorce or enter into a marriage in late 1993 and March 1994. Her Honour was satisfied that the evidence in relation to the wife’s capacity was not sufficient to establish on the balance of probabilities that she did not have capacity at the time either the divorce was granted or at the time of the marriage ceremony. Her Honour acknowledged that there was evidence that the wife had problems with her memory as early as 1989 and 1992 but that it was not until late 1994 that her condition seriously deteriorated. Her Honour noted that the evidence would suggest this deterioration probably occurred as a result of minor strokes at that time. Her Honour said at paragraph 181 of the Reasons for Judgment:
181.… I am not satisfied her, probably, poor memory, the fact she obviously did not have high intelligence and was very poorly educated, meant that she did not have a general understanding of marriage (and divorce) and its consequences. She knew and accepted she was marrying the man she loved, depended on, and had lived with for many years. The fact that it is likely that [the husband] made the arrangements to enable the divorce to occur and, probably, for [the husband and wife] to marry, does not affect the validity of this marriage.
As to the husband’s capacity at the time of the marriage, her Honour was satisfied that the appellant’s application was entirely ill-founded.
Her Honour noted that, contrary to the appellant’s claims that the husband was acting with impropriety, it appeared that he considered the marriage would provide the wife with financial security. The husband’s affidavit evidence, supported by other documentary evidence, was that two weeks after the marriage he had applied to ComSuper so that the wife would receive superannuation benefits after his death. The title on their jointly owned property was changed to her married name in June 1994.
The submissions of the appellant on the issue of mental incapacity can be found in her written submissions filed on 28 September 2010 and in a document called “Speech” which we permitted her to hand up to the Court without objection, save to the extent that the documents relied upon were not in the Appeal Book. In addition, the appellant made short oral submissions.
Essentially the appellant’s argument on this point was that her mother had had no legal capacity since 1987 and thus the proceedings for divorce against Mr H and her marriage to the husband could not be valid. This was the same argument advanced by the appellant at trial level. As far as the appeal grounds relating to incapacity are concerned, she asserted that her Honour failed to consider relevant medical evidence which related to her mother’s capacity to give instructions or incorrectly interpreted the medical evidence to erroneously find that she had legal capacity. Her subsequent oral submissions went no further than the proposition just articulated. The appellant relied upon the material in the files and the medical evidence which her Honour canvassed in detail.
We have carefully read all of the medical evidence in the Appeal Book and are satisfied her Honour’s judgment provides an accurate and fair representation of the medical evidence and analysis of it.
Her Honour noted, in our view correctly, that the medical evidence established that while the wife had problems with her memory as early as 1989 and 1992, it was not until late 1994 that her condition seriously deteriorated. This finding was entirely open to her Honour from the evidence and the appellant has not been able to take us to any evidence which contradicts the accuracy of this finding.
Her Honour also found that the fact that the wife did not have high intelligence, she was poorly educated and English was probably her third language did not mean that she did not have general understanding of marriage and divorce and its consequences. In particular, her Honour noted that the husband and the wife had lived together since 1981 at least, and that marriage was something that was not just contemplated in 1994 but at an earlier time in 1992 when advice had been sought from the Attorney-General’s Department about whether the wife should commence divorce proceedings.
Insofar as the appellant contended that her Honour ignored all of the witnesses as to capacity, this was far from the case. For example, as we have referred to already, her Honour took particular note of the evidence of the husband’s sisters who were witnesses to the wedding.
Her Honour was entitled to give no weight to the evidence of the appellant, her children and her husband, none of whom were present at the wedding and had not seen the wife since 1989, other than passing each other at the airport in 1992. The appellant has not demonstrated that her Honour erred in the assessment of this evidence and accordingly this ground must fail.
Insofar as the appellant asserted the husband lacked capacity to give his consent to the marriage, as we have said earlier, her Honour found the logic upon which this proposition was based was flawed and there was no evidence to support it. As her Honour says at paragraph 152 of the Reasons for Judgment:
The medical evidence does not support [the appellant’s] claim that [the husband] did not have capacity to enter into marriage in March 1994 – only that he had health problems in the 1970’s, which led to him being retired, and in the period leading up to his death, more than ten years after the marriage.

Again, the appellant was unable to point to any error by her Honour in this regard and this argument must also fail.

Denial of natural justice/procedural irregularity – Grounds 2-6, 7, 9, 10 and 12

In these grounds the appellant complains that the trial judge erred in failing to find that the proceedings for divorce between the wife and Mr H were fundamentally flawed. This, she asserted, was because there was a denial of natural justice due to lack of consent, and her Honour should have found that there were procedural irregularities in relation to service of the decree nisi such that it should not have become absolute. The appellant further alleged that the solicitors acting on behalf of the wife in her 1993 divorce proceedings had no authority to act. The consequence of the invalidity of the divorce, the appellant contended, was that the wife was not legally free to marry and, even if she had capacity (which the appellant denied), the marriage to the husband was void.
As the background facts reveal, the disappearance of Mr H in 1952 was attended by some uncertainty as to both the circumstances of his death, if he had indeed died, and his disappearance if otherwise. What was clear was there was no evidence of his having been alive or seen by anyone known to the wife since that time. The wife sought and received advice from the Attorney-General’s Department that the appropriate course of action would be to seek a divorce. That advice included advice that in view of the wife’s poor recollection of the ceremony and the lack of a marriage certificate, it would be necessary to rely on the common law presumption of marriage through cohabitation as husband and wife and then to obtain a divorce.
As her Honour observed, an Application for Dissolution of Marriage was filed on 4 August 1993. Personal service on the respondent was dispensed with unconditionally on 25 August 1993 and a decree nisi in relation to that marriage was granted in late December 1993 which became absolute on
9 January 1994. The Court found that the marriage of the wife and Mr H had been solemnised at Bombay, India on a date unknown in 1947-1948.
One aspect of the appellant’s challenge to the making of the decree nisi is that the wife lacked the mental capacity to institute proceedings for divorce. We have already dealt with this though and we need only repeat that the evidence does not support this claim.
It is not easy to discern exactly the basis of the remaining complaints. However, it seems that the appellant’s contentions are as follows:
(a)As the wife was illiterate, Order 15 Rule 2 of the Family Law Rules required a certificate in relation to the jurat which was not included in the documents or affidavits filed in relation to the Divorce Application and thus the material upon which the decree nisi was granted was invalid.
(b)The proceedings for divorce between the wife and Mr H were conducted by the husband without any evidence that the wife was aware that the proceedings had taken place and, in particular, no evidence exists that any instructions were given by the wife to commence and conduct the proceedings for divorce.
(c)There was a conflict of interest given that the trial judge, Justice Martin, had in her previous capacity as Registrar of the Court made orders in relation to the divorce; in particular, making findings that led to the decree nisi.
As to the question of the wife’s literacy, in paragraphs 30 to 33 above we set out in some detail the evidence that was before her Honour and how her Honour dealt with this issue and we are not persuaded that her Honour erred in her findings in this regard. Her Honour said as follows:
65.Having regard to the evidence overall, I accept the wife then had sufficient understanding of conversational English to relate the events referred to in her affidavit and would have understood the affidavit, had it been read to her in English without translation.
66.The jurat clause should have contained the usual clause for an illiterate deponent. However, the Court then, as now, could dispense with the requirements of the Rules either before or after the occasion for compliance has arisen [Family Law Rules 2004, O 4, r 1].

As to (b) as we have said the wife’s solicitor was not called to give evidence as to her involvement with the husband and the wife, the nature of the instructions and the circumstances of swearing the affidavit. The substantive file of the solicitors had also been destroyed, leaving only a record of the file name and accounts in the name of the husband rather than that of the wife.
Her Honour rejected the contention by the appellant that it in any way affected the validity of the divorce that the former solicitor’s “client”, as represented in the name and the file, was formally that of the husband. Her Honour noted that reasonable enquiries had been made, mainly with a view to obtaining evidence of Mr H’s death, and it was clearly beyond the wife’s limited education to deal with such issues. Her Honour said, in her Reasons for Judgment, paragraph 79:
79.… It is apparent that she must have given what were reasonably vague instructions, in relation to the circumstances of the marriage, and [Mr H’s] alleged death. There was no suggestion there could be any other possible source of the information. The implication is that she cooperated in relation to obtaining a divorce. It is of relevance that the applicant herself relies on an affidavit, about the same issue, sworn by her mother on 12 February 1974, although it also did not refer to the mother’s illiteracy (although at its foot it did say “explained and identified by me”).
In addition her Honour noted, at paragraph 75 of her Reasons for Judgment, that the evidence from the husband prior to his death was that they had sought to marry in 1981 but had not proceeded as there was no paperwork available other than the wife’s naturalisation certificate. Her Honour noted the respondent’s submissions that it was entirely reasonable for the husband to have provided instructions to the solicitors who filed the dissolution application because the wife was illiterate.
Finally, her Honour noted that the wife’s signature on the affidavit in support of her Application for Dissolution of Marriage appeared to be the same as the signature on the Marriage Register not long afterwards but noted there was no evidence from a handwriting expert. She accepted the affidavits of the witnesses to the marriage ceremony that it was the wife who signed the Register.
Her Honour observed that neither the husband nor the wife had the opportunity to give oral evidence about the circumstances because both had died prior to these proceedings being commenced and because the issue of the validity of the divorce was only formally raised after their deaths. Her Honour considered that to be a matter of “serious concern when the substantive proceedings had been filed a decade previously and there was no plausible explanation for the delay in challenging the divorce”. Her Honour concluded that none of the issues raised by the appellant constituted sufficient grounds to set aside the decree absolute and that there was no suggestion that there was a denial of natural justice or any miscarriage of justice in relation to Mr H who by then the wife had not seen for over 40 years. In regard to those matters her Honour determined that the circumstances of the case were not such that the decree absolute should be set aside.
The submissions of the appellant simply seek to re-agitate those matters which she agitated at trial. Her Honour’s decision was a discretionary one and in determining an appeal in respect of a decision involving a discretionary judgment there is a strong presumption in favour of the correctness of the decision. Before an appellate court reverses a decision of a trial judge founded upon the exercise of a judicial discretion, it must be satisfied that the trial judge acted upon wrong principle or that the decision was plainly wrong so that his or her decision was not a valid exercise of discretion: House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513.
The appellant has failed to establish that her Honour acted upon a wrong principle or that her Honour’s judgment was plainly wrong. No errors by her Honour in her findings of fact, the application of the law or in the exercise of discretion have been demonstrated. Nor has the appellant demonstrated any procedural unfairness. Consequently the grounds must fail.
As to the assertion in the appellant’s summary of argument that there was a conflict of interest because the trial judge was the Registrar who granted the decree absolute in 1993, it is not clear to us that this was a matter which was agitated at trial by the appellant. In any event, she has not demonstrated that there was any conflict of interest on behalf of the trial judge. The granting of the decree nisi in 1993, at a time when no one challenged the validity of those proceedings, followed inexorably from the filing of the Divorce Application and the application and order to dispense with personal service on Mr H. No basis upon which a conflict of interest, when considering a challenge which only arose more than a decade later, has been established and no oral submissions were directed to this issue.

Absence of jurat clause and certificate for blind and illiterate persons attached to documents used in the divorce proceedings and unjust dispensation of the rules in relation to the jurat clause – grounds 1, 3, 5 and 11

We have effectively now dealt with these grounds of appeal and thus we need only be brief. The appellant alleges the trial judge erred in not taking into account that affidavits sworn by the wife in her divorce proceedings were inadmissible at law as they were absent the jurat clause for blind and illiterate persons. Her Honour acknowledged the possibility that there was a technical defect but was otherwise satisfied that the wife understood and spoke English. In the exercise of her discretion she determined not to set aside the decree absolute. Having regard to the capacity in the Rules to dispense with compliance and to the other relevant matters which her Honour took into account, there is no merit in these grounds.

Weight – ground 5

We have already referred to the evidence of the husband’s two sisters who were both cross-examined at trial. Her Honour accepted their evidence and we consider that it was open to her Honour to do so. There was simply no evidence to the contrary and it has not been demonstrated to us that her Honour made an error in the exercise of her discretion. For that reason this ground must fail.

Dispensation of service in relation to the divorce proceedings – ground 6

The appellant alleges the trial judge erred (in her capacity as Registrar) in the divorce proceedings between the wife and Mr H in 1993 in dispensing with personal service. Nothing of substance was put to us in written or oral submissions in relation to this ground. It must have been demonstrably clear that as the wife’s case was that she had not seen Mr H for approximately 40 years with a real possibility, as her Honour noted, that he may have not been alive, dispensation with personal service was entirely appropriate and a proper exercise of discretion. Accordingly, this ground must also fail.

Judicial error – grounds 4, 8, 11 and 13

We have already canvassed all of the issues raised by the appellant in these grounds. The findings that her Honour made about instructions given by the wife for the 1993 divorce, whilst being based on inferences because the husband and wife were unable to give evidence, were in our view entirely open to her Honour. It was for the appellant to establish that the material, apparently regularly filed and sworn by the wife, did not correspond with her instructions. The appellant failed to make out this case before the trial judge and similarly failed on appeal to put forward anything which would suggest that the trial judge erred in the inferences drawn and, more particularly, in the exercise of discretion not to set aside the decree. This ground too must fail.
Accordingly, as the appellant has failed to make out any grounds the appeal will be dismissed.

Costs

The respondent was represented at the hearing and sought an order for costs in the event the appeal was dismissed. The appellant opposed that application citing her financial circumstances. She informed us that she is married, that they do not own a house, that her husband receives an aged pension and they do not have a health card. The appellant says she has not received anything from her mother’s estate and her son, who has a computer business, has been assisting her in these proceedings.
Costs are governed by s 117 of the Act. Subsection (1) provides that each party is to bear their own costs, however, subsection (2) provides that if the court is of the opinion that there are circumstances that justify it in doing so the court may, subject to other subsections, make such order as to costs as the court considers just.
Relevantly, for the purposes of this appeal, one such circumstance is whether any party to the proceedings has been wholly unsuccessful (s 117(2A) (e)). Neither of the parties is in receipt of legal aid and in our view it is of significance that here that applies to the appellant.
The nature of the litigation itself in which the appellant has engaged is somewhat different from the usual litigation in this Court between parties to a marriage. The issues now agitated by the appellant were not agitated during the lifetimes of the husband and wife, albeit that proceedings had been commenced by the appellant in 1996. The genesis of these proceedings during the lifetime of the husband and wife was an application for property settlement and maintenance. As a result of the death of the husband those financial proceedings came to an end in this Court but we were made aware by the appellant that there are proceedings in other courts, including the Supreme Court of Western Australia, in relation to the estate of her mother.
Although the appellant’s financial circumstances are relevant, having regard to the nature of the application and the fact that the appellant has been wholly unsuccessful, in our view this is an appropriate matter for an order for costs and we propose to order costs in favour of the respondent.

I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Strickland and Moncrieff JJ) delivered on 19 March 2012.

Associate:

Date: 19 March 2012