Babich & Sokur and Anor
[2007] FamCA 236
•9 March 2007
FAMILY COURT OF AUSTRALIA
| BABICH & SOKUR AND ANOR | [2007] FamCA 236 |
| FAMILY LAW - EVIDENCE – Expert Evidence – Conflicting FAMILY LAW - MARRIAGE – Whether there was Understanding of Nature and Effect FAMILY LAW - NULLITY – Whether there was Consent – Mental Capacity |
| Family Law Act 1975 (Cth) Marriage Act 1961 (Cth) Matrimonial Causes Act 1959 (Cth) (Repealed) |
Cases considered:
AK and NC (2004) FLC 93-178
Brown v Brown (1982) FLC 91-232
In the Estate of Park, Dec’d. Park v Park [1954] p112
Marriage of Brown; re Dunne (1982) 8 Fam LR 1
Mathieson (falsely called Perry) v Perry (1939) 56 WN (NSW) 89
Sheffield City Council v E & Anor. [2004] EWHC 2942 (Fam) 15 December 2005.
| APPLICANT: | MR BABICH |
| RESPONDENT HUSBAND: | MR SOKUR |
| RESPONDENT WIFE: | MRS BABICH by her Case Guardian MS P | ||||
| FILE NUMBER: | SYF | 3431 | of | 2005 | |
| DATE DELIVERED: | 9 March 2007 |
| PLACE DELIVERED: | Parramatta |
| JUDGMENT OF: | JUSTICE MULLANE |
| HEARING DATES: | 10 7 11 May, 14 & 15 September, and 7 November 2006 |
REPRESENTATION:
| COUNSEL FOR THE APPLICANT: | Mrs M. Bridger |
| SOLICITOR FOR THE APPLICANT: | Messrs Plowman Solicitors |
| COUNSEL FOR THE RESPONDENT HUSBAND: | Mr G. Gersbach |
| SOLICITOR FOR THE RESPONDENT: | Mr Sperling Legal Aid Commission |
| COUNSEL FOR THE RESPONDENT WIFE: | Mr Juhasz |
| SOLICITOR FOR THE INTERVENOR: | Messrs Streeterlaw Solicitors |
Orders
The Orders are:
The marriage solemnised at C in September 2004 between the husband and the wife is declared to be absolutely null and void.
The Registry Manager is to issue a Decree of Nullity in relation to the marriage.
The List Clerk at the Sydney Registry is to list the proceedings for a 1 hour hearing of the applicant’s application for the husband to pay the applicant’s costs.
| FAMILY COURT OF AUSTRALIA AT SYDNEY SITTING AT NEWCASTLE |
FILE NUMBER: SYF 3431of 2005
| MR BABICH |
Applicant
And
| MR SOKUR |
Respondent Husband
And
| MRS BABICH by her Case Guardian MS P |
Respondent Wife
REASONS FOR JUDGMENT
INTRODUCTION
The husband and the wife participated in a marriage ceremony in September 2004 in the wife’s home at C. A Marriage Celebrant officiated at the request of the husband. The husband arranged for 2 witnesses to attend.
No members of the wife’s family attended the marriage because none of them were told she planned to marry. Her son is her only child. Since before April 2004 he and his wife had been concerned that she was dementing. In April they had contacted the Aged Care Assessment Team for her to be assessed. But she did not attend appointments made for her to be assessed by a geriatrician.
More than a month before the wedding ceremony the son had applied to the Guardianship Tribunal for appointment of a guardian for the wife. The son found out about the wedding in December 2004.
The wife suffers from Alzheimer’s Disease and has been living in a nursing home since March this year. A guardian has been appointed by the Guardianship Tribunal. A Case guardian has been appointed for her in these proceedings.
The son commenced these proceedings and seeks a declaration under Section 113 of the Family Law Act that the marriage is invalid. The wife, through her Case Guardian, seeks a Decree of Nullity under Section 51 of the Act.
Both the son and the wife argue that the marriage is invalid because the wife’s consent was not real. They say she was mentally incapable of understanding the nature and effect of the marriage ceremony.
On the last day of the hearing the wife’s Case Guardian sought to also rely upon the ground that the marriage was bigamous in that the husband was a married man at the time of the marriage. But the Court refused to allow the wife to introduce that ground at such a late stage of the hearing for reasons set out later.
CREDIT OF THE APPLICANT SON
At times in cross-examination by Counsel for the husband, the son was argumentative and evasive and responded to questions with questions. At times he volunteered unresponsive material.
In his affidavit sworn in July 2005, the son swore: “In or about early 2002, as far as I can now recall, (the husband) moved from the flat into the main home and into the bedroom that my father had occupied prior to his admission to the nursing home.” But in cross-examination he said that it was about 2004 when the husband moved from the granny flat to the house. It was put to him that it was 2002 and he answered, “No, he was in the back room still”. He then said, “As I say, all my dates are mixed up”. It was pointed out to him that he had said in his affidavit in July 2005 that the move occurred in early 2002. He answered, “My dates are mixed up”. He was then asked whether he accepted that 2002 was more likely to be correct and he said, “Could be”.
In various areas of his evidence (e.g. his evidence that he did not borrow money or receive gifts of money from his mother) the son’s evidence was corroborated by his wife’s evidence. It was similarly corroborated in relation to various statements that the son alleged the wife had made to him.
A significant amount of the son’s evidence was corroborated by his wife, who was present on many occasions about which the son gave evidence.
The son generally presented as an honest and reliable witness.
CREDIT OF THE RESPONDENT HUSBAND
The Court notes that the husband’s affidavit, which contains approximately 10 pages of evidence, does not indicate that he had the assistance of any interpreter when he swore or affirmed it. In his evidence in court the husband had the assistance of an interpreter to translate from English to Russian and from Russian to English. But at times the husband answered questions in English before the question had been translated into Russian. He conceded in cross-examination that he can read English, “but not 100%”. Generally, it appeared that he understood a lot of the questions in English and the assistance of an interpreter enabled him to have considerable additional time to consider questions before answering.
The husband swore his affidavit on 6 February 2006 and at the commencement of his evidence on 15 September 2006 made a religious oath. But on 7 November 2006 he elected to make an affirmation rather than a religious oath. He provided no explanation.
In the Statutory Declaration the husband completed and signed on the day of the marriage, he declared that he was a person who has “never been validly married’. But in his affidavit in these proceedings he disclosed he was married in the Ukraine in 1966, separated after a year and a half, and has a child of the marriage born in 1967 who now lives in Israel. He alleged that he and that wife are divorced. He swore that he left Ukraine in 1978:
7. I understand that it was a condition of my being able to leave the Ukraine that I had to pay off all the child maintenance for my daughter and that I had to divorce my wife. I recall that she and I signed papers that had all the agreement for [R] and also for us to separate
8. I have no papers from when I was given the divorce from my wife.
It is clear that in order to marry the wife in these proceedings the husband made a false Declaration that he had not been previously married. He has not offered any evidence in these proceedings of any attempt to obtain proof of the alleged divorce in relation to his 1966 marriage and no evidence of any reason why he could not obtain such evidence of the divorce.
In his oral evidence-in-chief and also in cross-examination the husband was extensively evasive and repeatedly volunteered unresponsive answers. Despite repeated cautions by me reminding him of the importance of directly answering questions and not being evasive, and of the damage that evasiveness would do to his credibility, he continued his cross-examination in that way.
When he was shown the Declaration that he made in order to marry the wife and the answer “Never validly married”, he said, “Actually, no, what I put was ‘Never validly married and I was divorced many years ago’”. It was put to him that he lied in the Declaration and he avoided that question and said, “If I were a real liar, I wouldn’t have done it once and the other time not”.
When it was put to him that he said he had never been validly married because he had never been divorced, he avoided the question. I directed him to answer it and he then said, “No. No. I was divorced 100%”. When it was put to him that he lied to the Marriage Celebrant because he knew if he said he had been previously married and could not produce evidence of a divorce, the Marriage Celebrant would not have married them, he avoided the question. He said at one state of his evidence that he thought he received evidence of his divorce, but it was a long time ago. Later he said he couldn’t remember and “it was 40 years ago”. But it seemed from his affidavit that the divorce was in 1978; not 40 years ago.
In his affidavit the husband swore, “[The wife] and I arranged to have 2 witnesses” in relation to the marriage ceremony. But in his cross-examination it became clear that this was untrue. He arranged the witnesses for the wedding. One was his nephew and the other was a woman he had met at a club.
When the husband swore or affirmed his affidavit on 6 February 2006, he testified:
33 I buy the Vodka generally from a bottle shop in [C]. Up until a few months ago I would buy a bottle at a time. [The wife] would also buy Vodka. For the past few months I have now been buying on average about four bottles a week for the past few months. I spend on average $100 per week on Vodka. This is mostly her money.
In cross-examination, however, when he was asked when he started buying 4 bottles of vodka per week, he contradicted his affidavit evidence and said, “From the very beginning when I went to house”. According to his evidence he went to live in the house at the end of May 1998.
In addition, although in his affidavit evidence, the husband did not disclose that he had been drinking any of the vodka purchased for the household, in cross-examination he conceded that he did. He conceded that he drank with the wife “from time to time”, and volunteered, “But I wasn’t big drinker – I only drink a little bit”. He also said in cross-examination, “From the beginning I was telling her she was drinking more than $100 vodka” (per week).
It is also recorded that the husband told the Guardianship Tribunal at a hearing on 14 November 2005 that the wife was spending $100 per week on alcohol.
When the husband was cross-examined about the wife’s telephone line being disconnected in April 2004 and the new service disconnected a few days later, the husband was extremely evasive and repeatedly volunteered unresponsive material rather than answering the questions he was asked. It emerges from that cross-examination that in all probability he arranged for the wife’s telephone line to be disconnected and another telephone number obtained. He also subsequently arranged for the second telephone service to be disconnected.
The husband in July 2004 telephoned a real estate agent to arrange the sale of the wife’s home. The agent attended the residence on 29 July. The husband and the wife were present. The husband told him that the wife “owns the house but she doesn’t speak English”. The agent gave a market appraisal of $400,000 for the home and the husband instructed him to put the property on the market for $579,000. He was particularly evasive when cross-examined about this, including when it was put to him that the wife had never expressed a desire to sell the house and then it was put to him that it was his idea to sell the house. It was put to him, “You put it on the market at $579,000?” He denied that, despite the evidence of the agent that he did.
Exhibit A2 establishes that the husband told the Guardianship Tribunal on 24 June 2005 that the wife owned 2 properties being her home and a separate block of land. He said the 2 properties were worth $1,000,000. On 4 May 2005 he told an investigating officer from the Guardianship Tribunal that he believed her home was zoned “Commercial A” and was worth about $1,000,000. He also said that she had sold another property she owned some years ago and given the money to her son.
It emerged from the proceedings that the wife’s only property at the time of the marriage and subsequently has been her home, which is probably worth about $400,000. It appears that she also has not sold any other property and has not given money to her son from the sale of a property.
The husband alleged in his affidavit that there was an incident at the wife’s home in 1998 when the son was violent. The son denied the allegations. The husband did not provide any corroboration of the allegations, even though if the Police were called as he alleged, there would have been some record of the Police Department in relation to the incident. The Court prefers the husband’s evidence and does not accept that the incident occurred.
The overall impression of the husband’s credibility was that he was generally unreliable witness and sometimes lied when it suited him. The Court also finds that the husband married the wife for financial advantage, and that was his priority. He was not motivated to act to promote her physical health, her emotional health, her personal hygiene, her relationships with her family or her financial security.
BACKGROUND
The husband was first introduced to the wife and her first husband in 1989. All of them had migrated to Australia from the Ukraine. A friend of the husband, V, had introduced the husband to the wife and her first husband at their home at C. V and the husband were invited to stay overnight and slept in the garage which also included facilities for it to be used as a flat.
The son and his wife resided with the wife in the C home for 3 months in 1997/98 while their new home was being constructed in N. They and their children had previously lived there with the wife and her then husband for 18 months in 1985-86 and for a month in 1978.
In March or April of 1998 V took the husband again to the house. The wife’s first husband by then was living in a nursing home. The husband was paying board of $60 per week for a room and it was agreed between the husband and the wife in late May 1998 that he would come and board at her place. The wife turned 74 that month. The wife said that he would be able to pay a low rental because she needed him to help cut the grass, wash the clothes and do the shopping. Eventually they agreed that the husband would come there and live rent free on the condition that he performed the services she had proposed and also did any other odd jobs around the house.
The husband moved to the property in late May 1998. On the balance of probabilities he lived in the flat; not in the home. The husband claimed he lived in the house itself, but that is contradicted by the evidence of the son and his wife and also is unlikely given the wife’s love for and loyalty to her then husband (demonstrated by statements by her and her distress when he died in 2002), her conservative moral values and the statements she made beforehand to her son about her intentions to seek a boarder and that the person would occupy the flat.
The wife had some difficulties with English, particularly written English. The son’s evidence is, “She doesn’t speak English very good at all. She can’t understand everything – she just picks up bits and pieces – the easy words. With large words she wouldn’t know how to say it or what it means.” The son’s wife testified that she does not speak Ukrainian and so she talks to the wife in English only. She said, “She speaks English adequately for me to understand her.”
But the evidence is that the wife has difficulty with written English. She can read some English words and can identify what some documents are, such as a rate notice. But she needs most written documents, such as letters, explained to her by her son. When she received mail in English, she would telephone the son and arrange for him or his wife to call and read and explain the letter received. The son’s opinion from his experience of his mother with documents is that the wife would not be able to read and understand the form of Declaration she signed for the Marriage Celebrant on the day of the marriage including a Declaration as to her marital status.
From about 1998 onwards the wife was telling the husband after visits to their household by her son that he had asked her for money and she had paid him money. This was untrue.
In 1998 the wife told the son that the husband: “Does not pay his way. He does not give me any money. He gambles his money. He does nothing around the house to help me. He is very lazy.”
When the son or his wife visited the home from 1998 onwards, if he was in the home, the husband did not remain in the same room as the wife and the visitor. He did not join in their conversation.
The wife continued to make similar complaints after 1998 about the husband and also said to the son on occasions that all the husband “ever does is mow the lawn and sometimes he takes me shopping. He is never here to do what he is supposed to do to help me around the house in return for him living here.”
In 1998 the wife also told the son that she wanted the husband to paint the house and, “He said he would do it, but he never did. He doesn’t help at all.”
The wife from 1998 onwards was in the habit of visiting her first husband in the nursing home generally about 3 times a week. At some stage the husband commenced to assist her by driving her to the nursing home. It appears that this was probably not until she lent him the money to buy a Volvo car for about $700 or $800 from V. The evidence is the car was purchased in 1999.
In 2005 it was discovered that the wife had been accumulating prescription medicines from 1996. She had accumulated prescription medications from 1996 for gout, and from 1999 for blood pressure (2 types), and she accumulated Valium from 2001.
The wife’s first husband died in March 2002. She turned 78 in the May. The evidence is that the wife was very attached to her first husband and was grief-stricken when he died. She had difficulty recovering from the death. She spoke to her son on many occasions about her first husband saying, “I miss him. He was a good man. I loved him.”, and also said, “I will never marry again. I loved your father very much. I would never find anyone else like him.”
That year the husband moved from the flat and began residing in the wife’s home. He occupied a bedroom at the front of the house that was formerly the bedroom of the wife’s first husband. The wife occupied a bedroom at the back of the house. On the balance of probabilities that occurred after the death of her first husband.
The wife also told the son at about that time, speaking of the husband in these proceedings, “I would never marry anyone like him. He would never make anyone a good husband. He is too lazy and does nothing to help.”
In the first half of 2002, probably after the husband moved into the home, there was a change in the arrangements concerning cooking and shopping. Whereas previously the husband and the wife had gone together to do the shopping, and had each been doing cooking, the wife ceased participating in the shopping and also ceased cooking. The husband from then on was responsible for cooking for both of them and for also doing the household shopping.
It was also at about that time that the wife purchased a new washing machine. Whereas she had previously done the washing for both the husband and the wife, she then ceased doing any washing and the husband was thereafter responsible for washing the clothes of both of them.
The husband’s evidence is that he and the wife commenced a sexual relationship while the wife’s first husband was still alive and that he lived in the home from 1998 onwards. The Court does not accept that evidence. The evidence clearly establishes that until her first husband’s death, the wife was much in love with him and devoted to him. In addition, the evidence is that she was a conservative person in terms of morality and modesty. An adulterous relationship would not be consistent with her values. On the balance of probabilities they did not have a sexual relationship and the husband did not move into the home until 2002, after the first husband died.
In mid 2003 the wife complained to her son that she had no money to pay for a headstone on her husband’s grave and she did not know where the funds had gone that she had set aside in a bank account for that purpose. It seems, given her other conduct subsequently, that the true situation was that she had dealt with the funds, but could not remember what she had done.
The husband’s evidence is that at about that year he first asked the wife to marry him. He asked her a number of times and she did not reply on any occasion.
In early 2004 the wife told the husband a number of times that her son had said to her about the husband, “I kick him out”, “I bash him”, and “He said that he will bring 2 people to come and bash him and get you out of the house”. The evidence is that such statements were not made by the son. The wife’s statements were untrue.
She had also been telling the husband prior to 2004 and during that year that she had been giving money to her son on occasions when he visited. She told the husband things such as, “I pay (my son) another $600”, and “[My son] asked for money for petrol $50”. These statements were untrue.
Also in early 2004 the son’s wife noticed when she visited the wife that the wife was saying that her granddaughter and her son “came here in the middle of the night and stole my jewellery”, and alleging that the granddaughter “stole my dish”. There had been no such thefts.
The son’s wife had, when living with the wife prior to 1998, done her shopping with her and done her hairdressing every week. She noticed in early 2004 that the wife’s hair was unkempt. Previously the wife had been very particular about how her hair was groomed. The son’s wife also noticed in early 2004 that the clothing the wife was wearing was dirty and she smelt of body odour. The evidence establishes that in early 2004 the wife ceased to take care with her personal grooming and personal hygiene. She either did not bath at all or rarely did so.
The son’s wife noticed that whereas in 2002 when the wife’s first husband died, she was clean and well-groomed and spoke frequently about her grandchildren, from early 2004 she became suspicious of members of the family, frequently forgot the names of family members, and was unkempt and “offensive in her personal hygiene”.
The son also noticed a change in his mother’s behaviour in early 2004. When he visited her with his wife in March 2004 she spoke to him about a lady, whom she did not identify, visiting the home. She usually had a pile of clothing on the dining room table. She said to them, pointing to the clothing, “A lady came to the house and brought me all these clothes.” When he asked, “What lady?”, she replied, “I know this lady”. When he pressed her, she said she could not remember the woman’s name. When asked how the woman gained entry to the home, the wife said, “I was asleep when she did it. It was late at night.” The son noticed that the clothing was similar clothing to the things that had been on the table and he had seen on many prior occasions.
The son also observed that when he spoke to his mother on the telephone from about early 2004 onwards, she was usually upset and crying. She was distressed. On one occasion she said, “I want to go and see my Mum and Dad”, and on another occasion she said to him, “I’ve lost 2 husbands”.
On occasions at about that time the son noted that although his mother recognised him and his wife, she could not recall their names. He also noticed she forgot the names of their children. On one occasion their son [her grandson] was with them when they visited her. The wife could not remember [her grandson’s] name. The son said to her, “Come on, Mum, you know us”, and, “Come on, Mum, you know [your grandson’s] name”.
On 12 March 2004 the wife was admitted to hospital with back pain after she had fallen over backwards in her home. The hospital staff concluded that she fell when she had a “dizzy spell”. She said she was having “dizzy spells every so often”. She was in pain but rejected medical advice to stay, have better analgesia and leave later. She left.
In April, May and subsequent months, the wife complained to her son about jewellery, plates, and other items going missing from her house. She asked him on one occasion, “Why did you pinch my gold chains?” When he told her he had not taken anything, she said, “They were in the kitchen on a shelf. I know you have taken them. Why did you take them?” When he repeated his denial and said he did not know anything about them, he asked when she thought the chains had been taken and she said, “I don’t know”.
On other occasions she asked him why he and her granddaughter had taken her plates and dishes. She said, “I know you took them, because somebody saw you doing it in the middle of the night”. He said, “Mum, I don’t know what you are talking about. (My daughter) and I have not taken any plates or dishes from you.” She responded, “I know you and (your daughter) took them. I saw you come in the middle of the night and steal the dishes.” Neither the son nor his daughter took any dishes or jewellery from the home.
When the son visited the home in about April 2004 and subsequently, he did not see the husband at the home. The husband did not contact the son.
The son and his wife at the time had the son’s wife’s mother living in their home. She was suffering from dementia. They had lived with the wife in her home for about a month in 1978 after the birth of their first child, for 18 months in 1985-1986 while they were building a home, and for about 3 months in 1997-1998 while they were building their present residence. They had a loving and affectionate relationship with the mother and with her first husband. Once the first husband died, the son, his wife and their 3 children were the only living family that the wife had.
Until the son and his wife moved to N in early 1998, the son’s wife went shopping with the wife, did her hairdressing every week and enjoyed spending time together. They communicated each day or every second day by telephone. After the move to L in 1998 the son and his wife visited the wife at least once a month on the son’s rostered day off as well as on one weekend each month.
The son and his wife were so concerned about the wife that in April 2004 the husband’s wife contacted the Aged Care Assessment Team to see if they could assess the wife for aged care.
From about April onwards when the son visited his mother he observed that she always wore the same dress and that it was dirty and unclean. She smelt generally and had bad body odour. He asked her if she had bathed or showered and she said, “I have not showered for months”. He offered to help her and she told him, “I’ll do it later, when I’m ready”.
The wife turned 80 in the May. (Unfortunately some of the medical records and reports from late 2004 onwards show her year of birth as 1926 instead of 1924 and understate her age. It appears on the balance of probabilities that the wife became mistaken as to the year of her birth.
On 24 June 2004 the son’s wife attended at the Department of Rehabilitation and Geriatrics of P Health Service and requested an aged care assessment of the wife. She reported that there had been 2 years of subtle changes with the wife including weight loss, delusions of a lady bringing clothing in the night, not showering or cleaning her home, and other matters. An appointment was made for the wife to attend P Hospital for her to be assessed by a geriatrician, but the husband telephoned and cancelled the appointment and said the wife did not want to attend. A further appointment was made for her, but again the husband telephoned and cancelled the appointment, saying the wife did not want to go. When arrangements were made for a home visit by a geriatrician the husband telephoned the Aged Care Assessment Team and told them that the wife did not want to see the doctor and that appointment was cancelled.
The son’s wife attended the wife’s home on 15 July 2004 with a nurse from the Aged Care Assessment Team, an interpreter and Mr G, a social worker with the Aged Care Assessment Team. The wife came to the front of the house and the others spoke to her on the front porch. After a while she allowed them to enter the house. Her clothes were soiled. She had very strong body odour. She had recently been complaining that her son and his wife were trying to have her placed in a nursing home. The nurse took her blood pressure and did a simple test with her. It involved asking the wife to draw a clock. The interpreter translated. The wife was unsure what to do and seemed to be unable to draw the clock. The interpreter drew a circle for the clock on a piece of paper and said something to the wife. The nurse asked the wife to draw the numbers on the clock and put the hands on the clock for 12 noon. The interpreter spoke. The wife hesitated and then drew numbers across the middle of the circle. She did not draw the hands of the clock.
The wife became teary when telling the group that she had been widowed for 2 years. She refused to discuss the husband, except to say that he “cuts the grass and assists with the shopping”. When she did show the visitors inside the home, it was noted that it was “reasonably neat and clean”. It was noted that the wife was talkative and “inclined to repetition”. She enjoyed the attention concerning her misshaped ankle. She said she eats well and did not suffer incontinence. Her bedclothes were described at “grubby”. The kitchen was reasonably tidy and there was a supply of basic food in the refrigerator.
The son’s wife did not see the husband at the house on this occasion until he arrived at about an hour after they had. He did not come into the room where they were and did not speak to any of the others.
With the assistance of the interpreter on 15 July the nurse attempted to perform a mini mental state examination with the wife. The wife could not identify the day, date, month season or year. She completed the first 2 items and by then had a score of 8 out of 13, with the next item (Attention and Calculation) she obtained a score of 1 out of 5, and then said she was unable to continue the task. She obtained 2 out of 2 points in the first of the Language Skills but declined to perform the remaining 2, so that she obtained 2 points out of 6. She declined to attempt the last section (Read and Obey), the first of which was to close her eyes (1 point), the second of which was to write a sentence (1 point) and the third of which was to copy a design (1 point). She achieved a total score of only 11 out of 30. Nurse D’s diagnoses were a principal diagnosis of vascular dementia, arthritis other than rheumatoid arthritis, and cataracts.
In about June/July 2004 the son’s daughter, N, brought the wife to visit the son and his wife at their home. When the wife arrived, her son observed that she was drunk. She smelt of alcohol. She vomited on the floor. When he tried to communicate with her, she was unresponsive, apart from saying, “I’m upset”. He and his wife suggested that she have a bath, but she refused. Her clothes were very dirty and her hair appeared to have not been washed for some time. Although the son and his wife tried to have the wife stay longer, particularly because of their concern about her capacity to care for herself, she wanted to return home. They tried to persuade her to stay longer and also wanted her to move to live close by them so that they could look after her. But she insisted on returning home the next day.
A real estate agent from F was contacted in late July 2004 by the husband to come and give a market appraisal of the wife’s house. He attended in late July 2004 to do that. The husband referred to the wife, who was present, and said, “She owns the house, but she doesn’t speak English. What do you think this house is worth?”
After the agent appraised the property as worth $400,000, the husband instructed him to list the property for sale at $579,000. He responded by saying that it was necessary to first have a contract drawn. The husband then asked for a recommendation of “the cheapest solicitor”. The agent obliged. He obtained details from the husband and the wife for completion of the selling authority and the wife signed it. He noticed that the husband spoke to the wife in another language before she signed the document.
Meanwhile in July the husband contacted a marriage celebrant and arranged a meeting at the home. The celebrant attended in early August, 2004 and was introduced by the husband to the wife. He did not recall the contents of the conversation he had with the wife. He obtained from both the parties the necessary information to complete a Notice of Intended Marriage. His recollection is that when he asked them why they wanted to get married, “They both replied, ‘We want to get married because we’ve been living together for 5 years’.”
The wife told him she was a widow and when asked said she had a son. When asked whether her son lived with her, she replied, “No.”, and then said, “I’m not on good terms with my son. My son is not visiting me.”
The marriage celebrant arranged with the husband and the wife to return and conduct the marriage ceremony in early September.
In early August 2004 the son lodged an application with the Guardianship Tribunal for appointment of a guardian for the wife. The husband’s evidence is that from August the wife lost her appetite and ate very little.
On about 8 August the Agent returned to the wife’s property at C and erected a “For Sale” sign on the front of the house. The wife was present and came out from the house. She said to him in broken English, “That man [the husband] is supposed to pay rent to me and cut the grass but he hasn’t paid any rent for months. He gets up in the morning and goes to the TAB and stays there all day.”
On about 15-22 August 2004 the agent telephoned the wife to make an appointment for a prospective purchaser to inspect the property. The wife answered the telephone and told him, “Talk to [the husband]. I don’t want to sell the house.” Not long afterwards the property was taken off the market.
In early September 2004 the marriage celebrant conducted a marriage ceremony for the parties. The wife did not invite any member of her family or any friend of hers. Apart from the celebrant the only other people present were 2 witnesses whose attendance had been arranged by the husband and on the evidence had no previous contact with the wife.
The son visited the wife at her home on several occasions in September and October 2004. He saw the husband in the house and the husband left through the front door on each occasion as the son walked towards the back door. There was no conversation between them on each occasion. The son observed on those occasions that his mother’s clothing and body were dirty and she had strong body odour. He found that some of her conversation on those occasions was rambling and did not make sense. She did not disclose to him that she had been married.
Meanwhile, as a result of the home visit on 15 July 2004, an appointment was made for the wife to visit the office of the Protective Commissioner, presumably for the purpose of a proper assessment of her mental state being arranged. But the appointment was cancelled, by the wife or by the husband.
At about that time in October 2004 that the husband had had the wife’s telephone number at her home disconnected. He had arranged the installation of a new number. The son had tried to telephone his mother and had been unsuccessful. He went to visit his mother. Her usual habit was that if he knocked on the side of the house she came to the side gate, unlocked it and allowed him entry. On this occasion when he knocked on the side of the house she did not respond. He knocked on the front door and there was still no response. Eventually he opened the lock on the side gate and climbed through an open window into the house. He went to the back door and opened the back door for his wife to enter.
When he walked through the house calling out his mother’s name, he heard her voice coming from the front room and also the voice of [the husband]. When she came out of the room he asked her whether she had heard them calling and knocking. She denied she had. He told her they had been worried because her phone had been disconnected and they could not find another listing. They spent some time with her. They asked for the new telephone number, but she said she would have to obtain it from [the husband]. She returned with a telephone number written on a piece of paper and handed it to them. They stayed for about 2 hours and then left.
They had observed a “For Sale” sign at the front of the house. They asked her why she was selling the house. She said, “I’m not selling the house. I don’t want to sell the house”. He told her there was a sign out the front and asked her, “Where are you moving to?”, to which she responded, “I don’t know. I don’t know.” She said later, “[The husband] wants to take me overseas”. She was quite agitated about being asked those questions. The son observed that her dress was dirty and her hair was unwashed. She had strong body odour.
The next day when the son tried to telephone the wife on the number provided, the phone was answered by the husband who pretended to be the son. The husband terminated the call when the son confronted him about this. The son complained to the Police. The husband later had the telephone line disconnected.
A couple of days later the son visited his mother and asked her why the telephone had been disconnected. She said, “[The husband] did not want it on because he said it costs too much”. She handed him a piece of paper with a number of a mobile telephone. But when he tried to contact her on that number the calls were not answered and although he left several messages for his call to be returned, there was no response.
In October 2004 there was a home visit to the wife’s home by a Ukrainian interpreter, Dr L (a Registrar in geriatrics), Mr G (a social worker), and Ms D (a Nurse who had attended the previous home visit). The purpose of the visit was to have Dr L examine the wife.
The wife would not let them into the house, but she and the husband spoke to the group through the side gate. The wife declined to be seen by Dr L and declined offers of other medical appointments. Details were obtained of her general practitioner who she claimed had seen her recently and prescribed her medication for hypertension. When the nurse requested to see the medication, the husband produced a bottle of Inderal, but first tore off the label on the bottle. When questioned further, he admitted that the medication was his; not the wife’s. He was urged not to give the wife unprescribed medication.
With the permission of the wife, Dr L and Mr G visited the wife’s general practitioner. He was agreeable to conducting mental state tests suggested by Dr L. But he did not.
The notes made by the assessment team record that the husband would not allow the group to have access to the wife and said that she wanted them to leave. But when they spoke to her directly, she was quite happy to continue the conversation.
The social worker advised her through the interpreter not to sign any paper work regarding the sale of her home. She responded to the interpreter in Ukrainian that if she wants to sell her home she will do so.
The social worker and Dr L later attended on Dr K, the wife’s general practitioner and requested that he carry out a “dementia screen” in relation to the wife. Dr K did not carry out any assessment, but provided a report to the Aged Care Assessment Team dated 2 December 2004.
He reported that the wife has been a patient of his since August 1999 and until 2003 visited the practice about 1-2 times per annum, since which she had been visiting the practice “almost bi-monthly”. Although Dr K noted that he had provided the wife with referrals in November to specialists, he did not indicate that he had seen her since being contacted by the Aged Care Assessment Team. One of the referrals was to Dr A, a consultant psychiatrist for assessment of her mental state. However, this was not done because of the wife’s limited English and inability to “perform a proper assessment”. Dr A instead suggested that the Mental Health Team from the local Community Health Centre be involved because they had access to Ukrainian interpreter services. Dr K also referred the wife to Dr Y, a consultant physician of internal medicine and cardiology. He said that her cognitive functions “seemed reasonable preserved” and suggested that further investigations be undertaken regarding the possibility of a dementia diagnosis. He said that preliminary results of a CT scan to the head do not suggest any such changes. However, it appears that the issue was not taken further.
Dr K describes the wife as:
A lovely, generally healthy, 80 year old lady of Ukrainian descent. Although she has lived in Australia for over 50 years she has limited command of the English language. She has worked as a process worker in factories during her active occupational life. Her first husband passed away in 2002 after spending many years in a nursing home. She has 1 son, now aged 46 years, from her first marriage. I understand that she remarried in September this year.
Although he had not conducted any tests with the wife and had not had the assistance of an interpreter, and, it appears, had not interviewed her since the request from the Aged Care Assessment Team, he provided the following opinions:
[The wife] has been our patient for 5 years. During her presentations there have been no elicited signs suggestive of an impaired mental state or a deterioration in cognitive state. However, investigations of this nature are being conducted by [Dr Y] and formal results are still pending. Her limited ability to communicate effectively in English does have a constraining effect on this assessment.
On 6 December 2004 the son was advised by the guardianship Tribunal that the wife had remarried in September. The proceedings in the Tribunal continued on 7 December 2004 and on that day the Tribunal adjourned the guardianship application for 6 months and made an interim financial management order pending further consideration of the wife’s capacity.
At that time the wife was refusing to see a geriatrician, despite requests from the Aged Care Assessment Team. The wife at the hearing stated: “I don’t have a life, I could hang myself”. She informed the Tribunal that her husband had died 3 months ago. She denied having remarried. Later when the husband referred to being her husband, she loudly objected to this, saying that she was not married to him.
The husband told the Tribunal, regarding the telephone of the wife being disconnected, that she does not need a telephone as she does not wish to talk as much as she did in the past. He also said that she could use his mobile telephone if she needed to. He informed the Tribunal that he was already receiving a Carer’s Pension for looking after the wife. He confirmed that he was not paying any rental. He claimed that he contributed some money to the shopping costs but was vague in what amount he provided. He conceded that the wife is forgetful and said that that would be why she had forgotten they had been married. The wife’s property and financial affairs were placed under the control of the Protective Commissioner on an interim basis.
After that hearing the husband acted to prevent private conversations between the son and the wife or between the son’s wife and the wife.
The husband alleges that it was in February or March of 2005 that the wife ceased to bath so often because she was weaker and could not get into and out of the bath. He said that he had to lift her so that she could get up and out of the bath. He also alleged that it was in about March or April of 2005 that she became reluctant to change her clothing. But these allegations are not accepted on the balance of probabilities. The Court finds on the balance of probabilities that the wife ceased having a bath with any reasonable frequency long before February/March 2005 and also ceased changing her clothing with any reasonably frequency long before March/April 2005.
By 11 March 2005 the wife had failed to attend 4 further appointments booked for her for assessment by a geriatrician from the Aged Care Assessment Team. When there was a home visit in early April 2005 Nurse D found the wife was locked in the backyard and the husband told Nurse D that he wanted to put the wife into a nursing home. Nurse D advised him that an Aged Care Assessment would be needed to arrange that and the geriatrician could visit the wife at her home on any Thursday suitable to the wife and himself. The matter came before the Guardianship Tribunal again on 7 April. The wife did not attend. The husband did attend. He denied having asked Nurse D about supported care for the wife. He said the wife did not wish to go into care and does not trust her son or the Guardianship Tribunal.
In May 2005 the husband told the Aged Care Assessment Team that he had been receiving a Carer’s Pension for 2 years for caring for the wife. He said he had been assisting her for some years before that. He said that caring for her can be difficult at times and he was concerned for her personal hygiene and reluctance to bathe. He said that she was considering selling her home and giving half the money from the sale to her son to enable her to have freedom.
On 19 May the Tribunal adjourned the further hearing of the matter for another 6 weeks and made interim orders for her estate to be managed by the Protective Commissioner in the meantime.
On 3 June 2005, Dr L, a Registrar in Geriatrics, carried out an assessment of the wife. He saw the wife at the Outpatients Geriatric Clinic at P Hospital that day. She was accompanied by a Ukrainian interpreter and the husband. The husband reported that she had a 3 year history of short term memory loss. The wife denied having any medical problems or any problems with her cognition. She claimed to be drinking only 2 glasses of vodka daily.
Throughout the interview the wife repeatedly accused her son and daughter-in-law of not looking after her, but instead relying on her financially and alleged they were unemployed. She reported feeling sad due to family problems and cried a lot of the time. Dr L reported, “Otherwise she denied any vegetative symptoms to suggest maybe depression”. The doctor noted that the husband was managing most of the housework.
Dr L reported:
I performed a mini-mental state examination on her today which she scored 17/27 (4/5 in time orientation; 3/5 in spatial orientation; 3/3 in registration; 1/5 in attention/concentration; 0/3 in recall; 2/2 in naming; 3/3 in three steps commands and 1/I in read and obey command). She refused to complete the test after that.
On examination, [the wife] was reasonably well-groomed but had a strong body odour. Her blood pressure was 165/80 lying and 155/190 standing. She was in sinus rhythm. Cardiovascular examination revealed an aortic sclerotic murmur. Respiratory, abdominal and neurological examinations were otherwise unremarkable. She complained of a painful lump behind her left knee which appeared likely to be a popliteal cyst.
I note that [the wife] saw [Dr Y] end of last year who performed a dementia screen. She was found to be B12 deficient but otherwise, her blood works were essentially normal. I am not sure if she had a cerebral CT done at the same time.
In summary, [the wife] has a moderate degree of cognitive impairment with little insight into her problem. She has several untreated vascular risk factors and likely to have vascular dementia. Her alcohol history is doubtful and it may contribute to her cognitive problem as well.
The report conveyed that the husband was maintaining there was no need for the wife to have a guardian and he did not wish to have her moved from the home. The Tribunal decided to appoint the Public Guardian as guardian for the wife for a period of 5 months to make decisions on her behalf about accommodation, health, medical and dental treatment and services set out in the order. The Tribunal had the assistance of an interpreter and the husband and the wife both attended, as did the son and a representative of the Public Guardian.
In the Tribunal’s reasons it was recorded that at the hearing the wife was “often vague on detail and had little understanding of why she was involved in the hearing.” The following is an extract from her evidence:
Q. [Mrs Babich] do you know why we are here?
A. Yes. I don't know what it is. This friend told me but I forgot.
Q. Your son has applied to be appointed as your decision maker. To decide about your health and medical and dental decisions. And where you should live?
A. Where my house is. I will live there.
Q. Do you think you need someone to make your decisions?
A. I don't know.
Q. Do you remember going to see a doctor? She wrote a report for us.
A. (shrugged but gave no reply).
Q. It says you have problems with your memory. Is that right?
A. They are all stupid.
Q. Do you need help to make major decisions?
A. My husband was very good. A very good man. He has been three years dead.
(cries) I cry straight away…Thank you love (when given tissue box).
Q. Is that man that was sitting next to you your husband now?
A. He is not my husband. He is alright. I don't want bad people.
Q. Your son is worried that you are not getting enough care?
A. This man is cooking good. He helps me. I do the washing.
Q. If you needed help to make various decisions who would ask for help?
A. This man. He does the cooking.
Q. If there was a choice about who should make the decisions between your son […] and... (before question finished [the wife] replied)
A. No. No. ... [the husband]!!
Q. What about if you had to choose between [your son] and a Government person?
A. There is trouble when he is coming…Since [the husband] lived in my house I am not frightened any more... ..[The husband] is home every day and every night.
Q. How long have you lived in [C]?
A. Long time. I don't know how long.
Q. Where would it be best for you to live? Move closer to your son?
A. Don't tell me that. No. No.
Q. Can you tell us why?
A. When I am asleep he screams at the children. [The husband] sleeps in another part of the home.
Q. You have grand children?
A. They are big now. . . . My son has too much nerves. He gets cranky. That is my home.
Q. In the long term where would you like to live?
A. This man is alright to me... He is lonely... he came to my place.. he is not a bad man. .. he does not drink too much.
Q. Do you like to drink?
A. Not too much... one glass... vodka.
Q. Your son thinks you are drinking too much?
A. No.
Q. Is it possible that you are drinking more than that?
A. No I don't. I promise.
Q. Is it true that you were going to sell your house?
A. Yes. We wanted to. .. . We had no money.
Q. And were you going to go back to the Ukraine?
A. (Initial pause) Maybe just for a holiday.
At the hearing the husband told the Tribunal that the wife was drinking $100 worth of vodka a week, which he bought for her. He considered that the wife was not taking medication prescribed for her because she did not want to. He said she was reluctant to go to a doctor or a hospital.
The Tribunal concluded that the wife should be placed under guardianship and her guardian should be the Public Guardian. The orders provided for the Public Guardian to have responsibility for decisions regarding accommodation, health care, medical and dental consent and other services.
There was a further home visit to the wife in late October 2005. The social worker, Mr G, reported to the Public Guardian. The husband was present at the time of the visit. He said that the wife’s grooming appeared “okay”, but she was dressed in unclean clothes and clothes that were inappropriate for the weather. His opinion was that the wife was capable of feeding herself, but the husband complained that it is difficult to have her eat any sort of “adequate diet”. She was reportedly continent and able to toilet independently. Mr G reported:
[The wife] is dependant for all instrumental activities of daily living. Her husband says he assists with all of these. At our visit [the wife’s] house was observed to be untidy, unclean and quite malodorous. Electricity and water were connected but the shower has not been working for some time. There is no landline telephone. [The husband] has a mobile phone but it is unclear what access [the wife] has to this or indeed if she would be able to use it say in an emergency. [The husband] indicated that he assists with [the wife’s] medical care, which involves fortnightly visits to her GP for vitamin B12 injections and taking medications. [Ms D’s] attempt to verify this with [Dr K] was unsuccessful. When asked about medications [the husband] said that [the wife] was on medications for high blood pressure. However he was unable to produce either the medication or script, saying that in any case she refuses to take it.
[The wife] was observed to be able to walk and transfer independently and according to [the husband] she has not had any recent falls. He also reported no dangerous behaviours such as wandering or leaving the stove on.
To conclude, [the wife] has a moderate cognitive impairment, likely to be a vascular dementia. She has poor insight into her need for care and appears to have an unrealistic opinion of her capacity to care for herself and her home. I remain primarily concerned about those considerations relevant to her health, including diet, alcohol consumption, the general uncleanliness of her home, her medication and lets say the lack of coordination and cooperation between those involved in her health care. To date [the wife] has declined services, although at our last home visit [the husband] said he would accept assistance with housework. I anticipate that trying to introduce any service will be a difficult undertaking, but if [the wife] was to remain living in the community then a Community Aged Care Package (CACP), specifically a dementia CACP would be appropriate. This could assist with both personal care and instrumental activities of daily living. However, even with services in place my opinion is that [the wife] would still benefit from having another person or persons living with her to monitor her safety. Should the decision be to place [the wife] in residential care, my opinion is that she is suitable for low level residential care in a dementia specific hostel.
An appointment was made for the wife to be further assessed by a geriatrician in November 2005, at P Hospital. The wife attended, but unfortunately an interpreter had not been booked and the appointment was then deferred to the following day. But the wife then failed to attend. When the matter was back before the Guardianship Tribunal on 14 November 2005, the orders for management of the wife’s estate were continued. The wife was present at the hearing but the Tribunal decided she was unable to properly appreciate the nature of the proceedings.
Since March 2006 the wife has resided in a nursing home.
WIFE’S STATEMENTS ABOUT THE HUSBAND PRIOR TO OR ABOUT THE TIME OF THE MARRIAGE
There is a history of the wife making statements about the husband from well before the onset of memory problems or other signs of dementia.
The husband is about 15 years younger than the wife. She was 74 when he came to board at her house and he was about 59. He was not in employment. The arrangement was that he would live there rent free on the condition that he mowed the lawns, washed some of the clothes, did shopping and also did any odd jobs around the house.
In 1998 she told the son that the husband “does not pay his way. He does not give me any money. He gambles his money. He does nothing around the house to help me. He’s very lazy.”
The husband does not deny that he is a gambler and on the balance of probabilities he was not paying any board. At that time he was not cooking for her or washing clothes for her. He was not doing cleaning chores around the house. Nor is there any evidence that he was doing any odd jobs by way of repairs around the house.
She continued to make similar complaints, but at times conceded that he did mow the lawns and sometimes took her shopping. But she said, “He is never here to do what he is supposed to do to help me around the house in return for him living here.” She also told the son that she wanted the husband to paint the house and, “He said it would do it; but he never did. He doesn’t help at all.”
The husband does not deny the allegations made by the wife that the husband was “never” at home and that he was often at a club or the TAB. He does not allege that he did any repairs or maintenance around the house. He did not deny he said he would paint the house, but didn’t.
The wife told her son at about the time of the death of her first husband, referring to the husband, “I would never marry anyone like him. He would never make anyone a good husband. He’s too lazy and does nothing to help.”
In April 2004 the wife told the son in the husband’s presence, “It’s hard to look after myself. No one’s looking after me.”
From about the time of the death of her first husband, the husband was then doing the shopping the cooking and the clothes washing for both of them. When interviewed on 15 July 2004 the wife refused to discuss the husband except that she said that he “cuts the grass and assists with the shopping”.
The marriage celebrant testified that his recollection is that when he saw the husband and the wife in August 2004 he asked them why they wanted to get married and, “They both replied ‘We want to get married because we’ve been living together for 5 years’.”
On about 8 August 2004 the wife told the real estate agent, “That man [the husband] is supposed to pay rent to me and cut the grass, but he hasn’t paid any rent for months. He gets up in the morning and goes to the TAB and stays there all day.” The husband did not deny that he spent long hours at the TAB. He does not dispute that he hadn’t paid any rent for months.
In late August, in a telephone conversation with the real estate agent to arrange an appointment for a prospective purchaser to inspect the property, the wife told him, “Talk to [the husband]. I don’t want to sell the house.” In October 2004 the wife told her son and daughter-in-law, “I’m not selling the house. I don’t want to sell the house.” When she was told there was a “For Sale” sign outside the house and asked where she was moving to, she said, “I don’t know. I don’t know.”, and later, “[The husband] wants to take me overseas”.
On 7 December 2004 in the Guardianship Tribunal the wife denied she was married to the husband and said, “I don’t have a life. I could hang myself.” She strongly objected to the allegation that she was married to the husband.
THE WIFE’S MENTAL STATE AT THE TIME OF MARRIAGE – RELEVANT FACTUAL FINDINGS
From prior to 2002 the wife was accumulating prescription medications and at least some of those were on the balance of probabilities medications her doctor had advised her to take. She has since continued to be reluctant or refuse to take medications prescribed for her.
By 2002 she had been telling the husband that her son had been asking her for money and she had been giving him money. These statements were untrue, but it seems more likely that rather than being delusional she knew that what she was saying was untrue, perhaps to encourage the husband to pay board or contribute more financially.
Her first husband died in March 2002. She was nearly 78 by then and she was very distressed at the loss. It was at about that time she abandoned her established roles and responsibilities of cooking, accompanying the husband to do the shopping, and washing the clothes of both of them. The husband told Dr L that it was about Mid 2002 that her memory commenced to decline.
The husband told the Aged Care Assessment Team that he received a Carer’s Pension for caring for the wife commencing from about May 2003.
In mid 2003, she could not find the funds she had saved for her husband’s headstone and could not remember what she had done with them. Her memory continued to decline throughout 2003.
In early 2004 she abandoned bathing, grooming her hair and concern about personal odours and hygiene. She ceased monitoring her clothing and changing with any reasonable frequency into clean clothes. She was not bothered by bad body odour or by repeatedly wearing the same clothing, even if dirty and smelly. She appears to have had no consciousness or concern about the consequences of this in terms of her relationships and dealings with others.
By early 2004 she was often having occasions where she couldn’t remember names of family members, including when they visited, the names of her only child, the son, his wife, and her grandson.
It was also in early 2004 that she was first noticed by her family to be suffering delusions. She suffered delusions about her son – that he came in the middle of the night and stole her jewellery, that he was asking her for money, and that she was paying him money. She suffered delusions about her granddaughter – stealing her dish and coming in the night and stealing her jewellery. She also started telling the husband that the son was making threats against him, when this was untrue. In the context of the other delusions she was having, it appears that these too were delusions. She had a delusion about a woman coming to the house and giving her the clothing that was on the dining room table late at night while she was asleep. She was still very distressed about the loss of her husband, but she was delusional on occasions when she told her son she had lost 2 husbands and on an occasion when she told him she wanted to go and see her parents.
By March 2004 she was suffering dizzy spells “every so often” and she fell over backwards during a dizzy spell. She hurt her back and went to the hospital. She rejected medical advice that she remain for a short while and have more effective analgesia for the pain she was suffering and instead left.
In April/May she was suffering delusions when she complained about jewellery, plates and other items going missing from her house, and accused the son of stealing her gold chains and continued insisting that her son and granddaughter had stolen things from the house in the middle of the night.
From about April 2004 onwards she did not change her dress. She wore the same dress and it was dirty and unclean. She refused an offer by her son to help her bath or shower. She said she had not showered for months.
She turned 80 in May 2004.
In June/July 2004 she went to stay with her son and daughter-in-law. Her granddaughter, N conveyed her to the home. She was drunk. She vomited on the floor when she arrived. She was uncommunicative. She refused to have a bath. The finding is that by then she was drinking a large quantity of vodka each day and that was also diminishing her intellectual capacity. On the evidence that continued until the date of he marriage and subsequently.
In July 2004 the husband was able to have her sign an Agency Agreement so that the house would be listed for sale although she did not wish to sell it. She apparently was unable to insist that the house not be sold and prevent him dealing with the agent and the solicitor, having a “For Sale” sign exhibited on the front of the house and the agent advertise the property for sale, although she did not want to sell the house.
When representatives of the Aged Care Assessment Team visited her on 15 July 2004 she could not draw the face of a clock and in the Mini Mental State Examination she scored 17 out of 30.
When she told the Marriage Celebrant in early August 2004 that she was not on good terms with her son and he was not visiting her, this appears to have been an extension of the other delusions she had been having about her son. From August the wife lost her appetite and ate very little. The husband’s evidence is that by the time of the marriage for more than a year the wife had been drinking nearly 4 bottles of vodka per week. He testified, “she was drunk all the time”, but that appears to be an exaggeration. On the balance of probabilities, however, she was often drunk.
When the wife was married in September 2004, she did not share the occasion with any relative or friend. At the time of the marriage the wife was 80 and the husband was 65. The only persons present that she had previously met were the celebrant (whom she had met once previously) and the husband. She did not tell any relative or friend of the marriage before the marriage at all. Her decision to marry the husband was inconsistent with her knowledge of him, particularly his failure to do work on her house he had said he would do, his failure to pay board as agreed, his gambling problem, his habit of leaving her alone for much of the time, and his overriding of her wishes by listing her home for sale. He had also demonstrated a lack of concern for her welfare by his failure to assist her by cleaning the house, endeavouring to have her bathe and maintain reasonable personal hygiene and reasonable grooming and to have her dress in clean clothing, and also by his conduct in frustrating and preventing access by her to her family and health professionals seeking to assess her and address her needs, but on the evidence she did not have a recognition of those matters. Her consent to the marriage was also inconsistent with her rejection of the husband’s marriage proposals which on the balance of probabilities had been happening over a period of at least a year.
At the time of the marriage, the wife’s wishes were being over-ridden by the husband in relation to the proposed sale of the home and obstruction of face to face contact by her with members of her family who went to her home to see her. He also refused the group from the Aged Care Assessment Team access to the wife to assess her when they visited the home on 20 October 2004.
When the son spoke to the wife on several occasions in September and October 2004, he found that some of her conversation was rambling and she did not make sense. By late 2004 she could not remember the correct year of her birth, and Dr Y found that she was Vitamin B12 deficient.
In December 2004 in the Guardianship Tribunal, she said, “I don’t have a life, I could hang myself.” She said that her husband had died only 3 months before. She denied having remarried, and protested that she was not married to the husband.
Six months later in June 2005 Dr L performed a Mini Mental State Examination in which she scored 17 out of 27.
EVIDENCE OF DR B & DR P
Dr B and Dr P were each appointed as court experts to investigate and answer the following 5 questions formulated by the parties:
1. As at the date of marriage on […] September 2004 between [the wife] and [husband], was [the wife] capable of understanding the nature and effect of the marriage contract into which she was entering;
2. As at the same date was [the wife] capable of appreciating the nature and specific consequences of the marriage contract, namely that it is an engagement between a man and a woman to live together and love one another as husband and wife to the exclusion of all others;
3. Is it more probable than not that at the time of the marriage [the wife] had a "mere awareness" rather than a full understanding and appreciation of going through a marriage ceremony;
4. Having regard to the findings of the Guardianship Tribunal on 7 December 2004, 19 May 2005 and 7 July 2005, would [the wife] nevertheless have understood that she had entered into marriage with [the husband] and the significance of such event;
5. Any other matter that in your professional opinion is relevant to the issues.
Dr B has been practising as a Clinical Neuropsychologist since 1988. Neuropsychology involves the study of brain function and its relation to cognition and behaviour. It is the study and assessment of thinking and behaviour arising from both normal and diseased brains, but more often the various types of cognitive and behavioural changes that are associated with different neurological, psychological, psychiatric, developmental and medical disorders. The study also relates to changes in cognition and behaviour to a person’s function in everyday life, functionally and in terms of decision making. Her academic qualifications include a Bachelor of Arts degree with honours in Psychology, a Master of Science degree in clinical Neuropsychology, a Master of Arts in Counselling and a PhD. She is a registered psychologist and a Member of the Australian Psychological Society, College of Clinical Neuropsychology.
Her clinical work has included the assessment of people with potential cognitive disorders and providing opinions as to their mental capacity. Her practice involves evaluation of cognitive strengths and weaknesses, specifying the most likely underlying diagnosis (if any) and comment on prognosis, recommended rehabilitation strategies, and/or outline of potential limitations to mental capacity.
She has also engaged in research and this research has been clinically based and centred on dementia and normal aging. It has involved the evaluation of the neuropsychological and behavioural status of elderly people suffering from cognitive disorders, as well as older people without impairments living in the community, and the determination of the relationship of these findings to brain anatomy and pathology (by brain imaging), neurological status, and the person’s abilities in everyday life.
She has also lectured and published widely in the area. She provides similar expert opinions in the area of mental capacity in the context of litigation and lectures and publishes in that area. Her areas of competence include testamentary capacity as well as other domains such as capacity to execute a Power of Attorney, to enter into contracts, need for guardianship or financial management, as well as capacity to instruct solicitors and to give evidence in court. She is a member of the Guardianship Tribunal of NSW and because of her interests interfacing with the law, has undertaken part time legal studies.
Dr P is a Consultant Psychiatrist and registered medical practitioner. She graduated in Medicine and Surgery in 1986 and obtained a Doctorate in Medicine from the University in 2001 on the topic of depression and families. In 1985 in her undergraduate studies she was awarded the prize for first in undergraduate psychiatry. In 1989 she obtained a Certificate of Advanced Training in Geriatrics. In 1990 she graduated with a Diploma in Family Therapy. In 1998 she graduated in postgraduate studies in Neuropathology from the University. She was elected to the Royal Australian College of Psychiatrists in August 1993 and has since been a consultant psychiatrist in private practice. She has had extensive involvement in geriatric psychiatry and research in that area.
In 2000-2003 she was a Consultant Old Age Psychiatrist with the Eastern Area Health Service Aged Care Psychiatry and W Aged Care Assessment Team. Since 2001 she has been a professional member of the Guardianship Tribunal. She is currently a Research Fellow in Old Age Psychiatry at a large teaching hospital, a Senior Lecturer at the University, and a Board Nominated Psychiatrist for the NSW Medical Board Impaired Registrants Program.
She has been involved in educating general medical practitioners in relation to geriatric psychiatry and psychotherapy since 1993. She has also been involved in teaching since early 2003 of the Master Class in Alzheimer’s Disease for Neurologists, Geriatricians and Psychiatrists, including topics such as testamentary capacity and neuropathology. She is supervisor to advanced trainees in Old Age Psychiatry and she has lectured and published extensively.
Dr P said that the differences between the qualifications of the 2 experts were that Dr B’s specialised qualifications were in neuropsychological assessment (assessment of brain function); whereas Dr P’s expertise was in the diagnosis and treatment of mental illness as a psychiatrist specialising in the aged. Dr P’s work includes assessments of dementia; but also treatment.
Dr B interviewed the wife at her home on 14 February 2006. But Dr P interviewed the wife at the same location the following day and carried out another mental capacity assessment. Their answers to those question follow.
1) As at […] September 2004 was the wife capable of understanding the nature and effect of the marriage contract?
Dr B:
Yes, I am of the opinion that in September 2004, [the wife] was capable of understanding the nature and effect of the contract into which she was entering.
The concept of marriage is something learnt very early in life, and is considered to constitute "semantic" memory. These types of memories, because they are learned very early in life and are deeply ingrained, tend to be retained by people suffering from dementia until the late stages of their condition.
Specifically in relation to [the wife], whilst she was suffering from a moderate degree of dementia at September 2004, her impairments were predominately for memory of recent events. The assessment of [the wife] in June 2005 demonstrated that at that point, basic attention and language skills remained intact, and that she still had reasonable orientation. For these reasons, I am of the opinion that [the wife] is likely to have retained a capacity to understand the nature and effect of a marriage contract.
This opinion is supported by the results of my own assessment. When I asked [the wife] what happened when people married (I had made the question as concrete as I could so as she would be able to comprehend it), she answered that the people lived together, helped each other, stayed together, kept company, and that they didn't need others. In my opinion, this demonstrated a reasonable grasp of the nature and consequences of marriage.
I am aware that [the wife] made no mention of the precise legal consequences of marriage, in particular to inheritance and property. However, I note that in AK v NC, Justice Chisholm stated at paragraph 170:
In my view the evidence is consistent with the wife having an understanding that marriage to the husband involved some sort of public choice to be involved in life with him, and, circumstances permitting, going to live with him as man and wife. It is not clear to what extent she understood the precise legal consequences of marriage in relation to such matters as inheritance, maintenance, ownership of property, and her ability to live where she chose, but as earlier indicated the validity of a consent to marriage does not require such knowledge' [emphasis added].
For this reason, I am of the opinion that [the wife] was capable of understanding the nature and effect of the marriage contract into which she was entering, to the degree the law requires.
1) As at […] September 2004 was the wife capable of understanding the nature and effect of the marriage contract?
Dr P:
As at September she may have been capable of reciting what a marriage entails as she was with Dr B on the 24th February 2006, but not truly reflecting on or understanding the decision to enter into this contract. Current scientific and medicolegal opinion suggests that the hallmarks of competent decision making are comprehension, retention and weighing information (Parker and Cartwright, 2005 page 69). Freedman et al (1991, page 206) articulated the distinction between reciting and understanding some fifteen years ago:
A frequent deficit found in patients with an abnormality in their frontal brain systems, detected by only very careful questioning, in the inability to reflect on actions words and facts. This inability may incorrectly seem to be a lack of knowledge of the problems or the consequences of one's actions. It represents, however, an inability to consider the implications of these facts. The physician must therefore be cautious because such patients may narrate in detail the consequences of an action without considering their significance.
An understanding of the nature and effect of the marriage contract requires an awareness of the persons' specific situation with regards to their relationship/s, the choices available and the consequences of the choices (Darzins et al, 2000).
1.1 Her specific situation. By virtue of the additive effects of her dementia, grief, psychosis and alcohol abuse, [the wife] was probably unable to recall, consider and simultaneously reflect upon aspects of her past (e.g. her past marriage and relationship with her husband), her past, current and future relationship with [the husband] and how this might change with the signing of the marriage contract in terms of companionship, intimacy, household concerns and her relationship with her only child and his family. These are the kind of issues that older women take into account when considering a remarriage and accordingly, signing a marriage contract (Hurd Clarke, 2005; Steitz and Welker, 1990; Henry et al, 2005).
Careful scrutiny is required when there is a change in the nature of interpersonal relationships during the course of dementia, particularly if this involves execution of legal documents ([P] et al, 2006). Appraisal of others is often tainted by dementia, even in the early stages. People with dementia often change their attitudes towards significant others during the course of the illness and this change is usually triggered or fed by the disease process as well as the natural frictions within families. They may develop antipathy or show favour towards family members previously disfavoured.
This may be understood in the light of many of the neuropsychological deficits typically associated with common forms of dementia. Firstly, deficits in judgment and working memory (Masterman and Cummings, 1997) will impact on a person's decisions about significant others. It may render the affected person unable to consider the meaning, significance or moral import of another's behaviour. Deficits in working memory may render a person unable to process information in the context of new and old information, consider multiple issues simultaneously, weigh up priorities and come to well-reasoned decisions. Those with such deficits may only be able to consider information that is concrete and physically in front of them or consider one issue at a time, rendering them prone to making shallow, superficial and impulsive judgements of people. Secondly, impairment in autobiographical memory (Kazui et al, 2000; Fromholt and Larsen 1991) will make recall of past and present relationships, good times and bad times (including past disputes) difficult. Thirdly, personality change towards apathy and passivity will render a person with dementia vulnerable to the influence and opinions of others and finally, paranoid ideation may poison affections and lead to the creation of new alliances which are sometimes based on the exploitation of such poisoned affections ([P] et al, 2006).
1.2 Choices I believe that she was unable to decide and reflect in any meaningful way on the decision: Shall I marry [the husband] or shall I not? She was capable of acquiescing in a passive way to such a request to get married but not to consider and reflect upon the choices available to her. There was evidence from the family that she was considerably disgruntled by [the husband] in the past and by virtue of her mental condition she would have been unable to recall, weigh and consider this in her decision in the way she might have previously when she chose not to marry [the husband]. Dementia-induced passivity and sequestration of her in the house by [the husband] compounded by her paranoid delusions would have influenced her capacity to decline his offers of marriage.
Further, she would have been incapable of considering and reflecting upon the advantages to her of such a marriage versus the virtues of continuing the status quo. It is likely that she saw [the husband] as a safe haven from the dangers she imagined due to her psychotic symptoms.
1.3 Consequences As a result of her mental condition she would have been unable to reflect on the positive and negative characteristics of [the husband] and the consequences these would have on their future together as a married couple. As a result of her psychosis, she would have been unable to consider the impact and implications of her marriage on her and relationship with her son and his family.
2) As at […] September 2004 was the wife capable of “appreciating the nature and specific consequences of the marriage contract, namely that it is an engagement between a man and a woman to live together and love one another as husband and wife to the exclusion of all others?
Dr B:
Yes, I am of the opinion that in September 2004, [the wife] was capable of appreciating the nature and specific consequences of the marriage contract.
As stated above, [the wife] herself in her interview with me demonstrated an understanding of the nature and specific consequences of the marriage contract, explicitly stating that married people lived together and did not need others.
Dr P was of the opinion that the better scores the wife obtained in the MMSE in June 2005 could be because she was drinking less and/or she was less paranoid.
Dr P agreed with Dr B’s evidence generally in relation to episodic memory and semantic memories and agreed that the wife would have had a good concept of marriage and a good concept of the husband at the time of the marriage. But Dr P said the wife’s concept of the husband would have been very concrete and she did not think that the wife would be able to make a judgment of how the man she knew to be the husband would be compatible with marriage, particularly in relation to negatives such as gambling, not contributing to the household finances, and leaving her alone for long periods.
Dr P said that while the wife had semantic memories of the concept of marriage and the concept of who the husband was, she did not have a deeper understanding of whether or not to marry him and what he had already done for her and what he would do for her. She said, “I don’t think she understood the implications of entering a marriage herself”.
Dr P said she does not agree that the wife understood marriage specifically as it applied to her situation with the husband.
Dr P agreed with Dr B that the cognitive capacity of a person suffering dementia can fluctuate and that alcohol will aggravate the fluctuations. She noted that when the ACAT Team made a report in October 2004 the wife was not taking her hypertension medication, but a medication of the husband’s. The husband also told the interviewers that the wife was relying on vodka to keep her well, rather than medications. Dr P said a high consumption of vodka would impair the wife’s cognitive function to a significant degree.
It was also Dr P’s opinion that the wife’s capitulations/acquiescence in July 2004 to the husband’s repeated requests that she marry him were partly attributable to her poor mental state. Prior to 2004 her statements about the husband were frequently complaints. She said, “To me that was the cognitively intact [the wife]. She’s weighing up and discriminating ...” But she said that in 2004 the wife would have found it hard to discriminate the positive and negative features of a partner. She said that given the neuropsychological deficits the wife had, it is likely that in 2004, “She had deficits in being able to make decisions about a significant person where she needed to be able to consider his past behaviour, his deficits and positives, and how he would relate to her son and similar matters”.
She said that by September 2004 in all likelihood the wife’s personality was “passive – a different person to the [the wife] of 2002”.
Dr P said that she was confident, certain that the wife was having paranoid delusions before the marriage and was “driven in to the husband’s arms as some sort of shelter …” She said it was likely that the wife did not have the capacity of understanding what she was doing when she entered into the marriage. “She would understand what a marriage was, but not the implications for herself.”
Dr P took the view that the wife’s outburst at the Guardianship Tribunal when she loudly objected to statements by the husband that she was his wife was not duplicitous. She said, “It was not guarded or careful; it was impulsive.”
There were several factors contributing to the differences of opinion between the 2 Single Experts and the main ones appear to be:
1.The wife presented much better at the interview by Dr B than she did at the interview by Dr P.
2.A Mini Mental State Examination (MMSE) administered by Dr B resulted in a score of 7 out of 28 indicative of “at least “moderately severe” cognitive impairment, over and above the impact that her language and educational difficulties are likely to have had”. But the MMSE administered by Dr P resulted in a score of 2 out of 24 (some items were omitted because the interpreter advised Dr P that asking those questions was culturally inappropriate). Dr P concluded that the wife’s score and performance probably indicates, despite limitations of the MMSE and the wife’s lack of “questionable cooperation”, “severe” cognitive impairment.
3Both the experts did not have the benefit of an agreed factual background for their reports. There were many relevant allegations by each of the husband and the son that were disputed. Dr B’s approach was “I will rely on facts that do not appear in dispute”. Dr P appeared to have done the best she could with the material, including in some cases being unable to choose between conflicting versions.
4Dr B examined the wife for about 1 hour and 10 minutes, and Dr P spent a little over an hour and a half.
5Dr P formed a view that the wife’s dementia commenced in 2002/2003 whereas Dr B concluded “at least” 2003.
6Dr P placed more weight on the effects on the wife’s cognitive capacity of grief at the death of the wife’s first husband, ongoing alcohol abuse and untreated hypertension.
7Dr B did not in her report acknowledge or take into account that as at the date of the marriage the wife had been suffering delusions and paranoia, (presumably she thought this evidence was disputed).
8Dr B’s opinion was largely about opining from the MMSE results in 2005 and from her interview with the wife in February 2006 as to what the wife’s mental state would have been in September 2004. Dr P placed much more reliance on evidence as to the wife’s intellectual functioning and health in September 2004, prior to that and then in months after that.
9Dr B interpreted negative statements by the wife about the husband to her son and daughter-in-law and persons she perceived as representing them, such as members of the ACAT Team (and also statements denying the marriage to the husband) as untrue and incidents of the wife being duplicitous towards her son and daughter-in-law because of their negative attitudes towards the husband. Dr P did not agree with that opinion. Her view was that the wife’s cognitive state had deteriorated so much by the time of the marriage that she was incapable of duplicity of that type.
The Court prefers Dr P’s opinions because:
a)The factual basis of Dr P’s opinions is more consistent with the court’s findings as to the wife’s mental state prior to and around the time of the marriage, particularly as to:
·The adverse effects on the wife of the death of her husband;
·The effects of alcohol abuse;
·The effects of her high blood pressure which was generally untreated;
·The commencement of the dementia symptoms by way of memory loss in 2002 and problems with her judgment regarding compliance with regimes for prescribed medication in 2002 and earlier; and
·Delusions and paranoia.
b)The wife’s presentation with Dr B in February 2006 was on the evidence a “very good” day for the wife and not consistent with the level of intellectual difficulties she was exhibiting generally in 2004 and what both experts agreed would have been a decline since then.
c)Many of the facts about the wife’s mental health problems found by the court to be proved, were not adopted by Dr B in her premises because they were at that time “disputed”.
d)She also did not accept many adverse allegations the wife had made to her son and his wife about the husband, which at the hearing have been found to be proved. She proceeded on the basis that they were instances of the wife being duplicitous, but that is not the finding of the Court.
e)It is common ground between the experts that by the time of the marriage the wife had frontal lobe damage affecting her capacity to compare, reason, plan and make judgments. Dr P’s opinion is that the wife was at the date of the marriage incapable of making a judgment as to how compatible the man she knew would be with what she understood marriage to be. Her opinion is that the wife did not have a “deeper understanding” of whether or not to marry the husband and of “what he had already done for her, and what he would do for her”. Her opinion was that the wife did not understand “the implications of entering marriage herself” and did not understand “marriage” specifically as it applied to her. Dr P’s opinions are more consistent than Dr B’s with the factual findings of the court as to the wife’s mental state at the time of the marriage. Even in 2002 and 2003 she was having problems with her judgment regarding complying with medical advice regarding prescribed medication, and staying longer at the hospital regarding her fall, back pain and “dizzy spells”.
The court accepts those opinions of Dr P.
RELEVANT LAW
Section 51 of the Family Law Act provides that “An application for a decree of nullity of marriage shall be based on the ground that the marriage is void”.
Section 113 of the Act provides:
In proceedings of the kind referred to in paragraph (b) of the definition of matrimonial cause in subsection 4(1), the court may make such declaration as is justified.
Paragraph (b) of the definition of “matrimonial cause” in subsection 4(1) of the Act is:
(b) proceedings for a declaration as to the validity of:
(i) a marriage; or
(ii) a divorce; or
(iii) the annulment of a marriage;
by decree or otherwise
Subsection 23B(1) of the Marriage Act, 1961, provides:
(1) A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:
(a) either of the parties is, at the time of the marriage, lawfully married to some other person;
(b) the parties are within a prohibited relationship;
(c) by reason of section 48 the marriage is not a valid marriage;
(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; or
(e) either of the parties is not of marriageable age;
and not otherwise.
The son and the wife both rely on subparagraph 23B(1)(d)(iii) in that they submit the marriage between the husband and the wife is void because the wife’s consent was not real because she was at the time of the marriage “mentally incapable of understanding the nature and effect of the marriage ceremony”.
Whereas in Australia the test of mental capacity or incapacity is defined by legislation, in England it is defined by the common law. The English test is settled and is whether the person was:
capable of understanding the nature of the contract into which he was entering, or was his mental condition such that he was incapable of understanding it? To ascertain the nature of the contract of marriage a man must be mentally capable of appreciating that it involves the responsibilities normally attaching to marriage. Without that degree of mentality it cannot be said that he understands the nature of the contract.[1]
[1]In the Estate of Park, Dec’d. Park v Park [1954] p 112 at 127 per Singleton LJ, approved by the Privy Council in Hill and Hill [1959] 1 AllER 281 at 283.
The case law background to the English law has been considered more recently in a series of decisions by Justice Mumby of the Family Division of the High Court, particularly in Sheffield City Council v E & Anor. [2004] EWHC 2942 (Fam) 15 December 2005.
Prior to 1959 in New South Wales there was no statutory test. In Mathieson (falsely called Perry) v Perry (1939) 56 WN (NSW) 89, Boyce J applied English case law as to the test of mental capacity and said:
In Forster v. Forster (39 T.L.R. 658), the Learned President, in a somewhat similar case to the present, said:- “This case is one, it seems to me, of the very greatest difficulty. The position of the petitioner is most deplorable; there can be no question that she has gone through a ceremony of marriage with a mental degenerate. But that is not the question. The question is whether the respondent was mentally capable of understanding the nature of the marriage contact, and the duties and responsibilities which it creates. As Sir J. Hannen said in Durham v. Durham (1 T.L.R. 338: 10 P.D. at 82) a mere comprehension of the words of the promises exchanged is not sufficient. The mind of one of the parties may be capable of understanding the language used, but may yet be effected by such delusions, or other symptoms of insanity, as may satisfy the tribunal that there was no a real appreciation of the engagement apparently entered into.”
Here I believe that the respondent knew he was getting married, but I do not think that at the time he was in such a condition that he appreciated and understood the real effect of the ceremony. The evidence before me has satisfied me that he had not a real appreciation of the engagement apparently entered into and was to all intents and purposes, insane at that time.[2]
[2] Mathieson (falsely called Perry) v Perry (1939) 56 WN 89 at 93-94/
In reported Australian decisions since Park v Park, even after the introduction of the legislative test in Australia, it seems to be assumed that the English case law is directly applicable to the Australian legislative test, whereas that is not necessarily so.
The legislative test was first introduced in Australia as part of S.18 of the Matrimonial Causes Act, 1959. It provided that a marriage was void if the consent of either of the parties “is not a real consent” because “that party is mentally incapable of understanding the nature of the marriage contract”.
That remained the test until the Matrimonial Causes Act 1959 was repealed by the Family Law Act 1975, and Sec.51 of that Act provided that a marriage that took place after commencement of that Act, is void if the consent of either party is not a real consent because “that party is mentally incapable of understanding the nature and effect of the marriage ceremony” (my underlining).
The legislative test was subsequently moved by amendments in 1976 to subpara 23(1)(d)(iii) of the Marriage Act,1961. The same test is in subpara 23B (1)(d)(iii) of the Marriage Act, which was inserted in 1985.
On the face of it the English common law test and the Australian statutory test are different, particularly because of the Australian test requiring that for a valid consent a person must be mentally capable of understanding the effect of the marriage ceremony as well as the nature of the ceremony. Whether in fact there is a difference in interpretation is another issue.
In the 32 years since the legislative test has applied, there has not been a plethora of decisions of the Australian courts as to its interpretation. There are only 2 reported decisions that I was referred to and I located no others.
The first of these is the decision of McCall J in Brown and Brown (1982) FLC 91-232, and the second is the decision of Chisholm J in AK and NC (2004) FLC 93-178. The current test of “mentally incapable of understanding the nature and effect of the marriage ceremony” was applied in both cases.
In Brown and Brown both parties relied upon the dicta of Singleton LJ in In the Estate of Park quoted earlier. His Honour said, though:
The nature of the contract, and the responsibilities attaching to the particular marriage must vary from couple to couple. In the circumstances of this marriage the responsibilities were different to many others. The parties were, perforce, to live apart because of the husband’s illness and the inability of the wife to properly care for him. It was a marriage in which the husband would, from then onwards, be confined to living in a hospital or nursing home situation where appropriate nursing home care was available to him. The wife, in the meantime, would continue to live in what had been their matrimonial home for fifteen years. The had during their time in Mandurah been regarded as husband and wife and the wife had apparently been known in that community as Mrs. Brown. Marriage, to them, did not involve living together. Nor did it involve undertaking any new responsibilities by either, or any change in an existing and long-standing relationship or situation. As the Reverend Barrett said in this context he assumed the husband knew what marriage was. The marriage was regularising a fact.
Although this man was not capable of writing or presumably looking after his own affairs which must have been left to the wife, in my view he nevertheless understood the step he was taking and the significance of it. I may not have come to this conclusion had this been a marriage between the husband and some person other than the wife. I accept the evidence that he knew his wife and he knew what he was doing, that is, that he was getting married.[3]
[3] Brown and Brown (1982) FLC 91-232 at 77,262-263.
McCall J referred to no other decided case or other authority.
In AK and NC, Chisholm J held:
18. The relevant statutory provision, as applied to this case, is that the marriage will be void where the consent of the wife was not a real consent because she was mentally incapable of understanding the nature and effect of the marriage ceremony.
19. What does this provision require? In Park v Park the court held that the person in question was capable of understanding the nature and effect of the marriage, although he was not capable of making a valid Will. The court quoted a well-known remark by Sir James Hannan P:
“It appears to me that the contract of marriage is a very simple one, which does not require a high degree of intelligence to comprehend. It is an engagement between and man and a woman to live together and love one another as husband and wife, to the exclusion of all others.”
20. Both in law and in society, a marriage has a large variety of consequences. Few lawyers let alone non-lawyers would be able to make a comprehensive list of even the legal consequences. I note in this connection a reported exchange between an English judge and a medical witness as follows:
“Did you even know anybody who was in a condition to understand all the consequences of matrimony?
- No, my lord.”
21. It is clear from the authorities that the law does not require the person to have such a detailed and specific understanding of the legal consequences. Of course if there were such a requirement, few if any marriages would be valid.[4]
[4] AK and NC (2004) FLC 93-178 at 79,020-021.
Chisholm J reviewed the authorities quoted before him which were:
Mathieson (falsely called Perry) v Perry (1939) 56 WN (NSW) 89, Faull v Reilly [1971] ALR 157, Evans v Brenton (Falsely called Tredennick) (1887) 3 WN (NSW) 129c; Brown and Brown (1982) FLC 91-232; (1982) 8 FamLR 1.
He then said:
24 Reviewing these authorities, I agree with Dr Dickey that “mere awareness of going through a marriage ceremony is not enough; a person must also understand the nature and effect of the ceremony involved”. (Anthony Dickey QC, Family Law (4th ed, 2002) at 175). This is illustrated by Mathieson v Perry, where Boyce, J said, granting a decree of nullity:
Here I believe the respondent knew he was getting married, but I do not think that at the time he was in such a condition that he appreciated and understood the real effect of the ceremony. The evidence before me has satisfied me that he had not a real appreciation of the engagement apparently entered into and was, to all intents and purposes insane at that time. I believe, in the words of [Dr N], he was unable to face ordinary marriage affairs. Part of the ceremony in the Church of England, where they were married, is a promise by the husband to forsake all others and to keep only unto her so long as both shall live; to such promise I believe he gave no rational assent.
25 The problem of identifying precisely what it is that the person must understand was dealt with in some detail by McCall J in Marriage of Brown.[i] That was also a case of an elderly party: the husband was aged 82 and had been suffering from senile dementia. McCall J referred to the fact that the husband was marrying the woman with whom he had been living in a defacto relationship for 15 years although for nine months before the marriage they had been living apart. The husband had been in the hospital and the wife continued to live in the home, visiting him nearly every day. She “had been his companion since 1965 and had behaved in all respects as a wife”. At the time of the marriage the husband had difficulty recognising his own daughters, with whom he had had minimal contact in the years previously, but had no difficulty in recognising the wife.
26 In considering whether the husband had the requisite mental capacity, McCall J focused on the particular significance of the marriage in the particular case. …..
And further:
28 I am not aware of any other decision that so specifically identifies the required mental capacity with the particular circumstances of the parties. This approach is not really contemplated in the other authorities, so far as I am aware. The earlier authorities seem to have in mind a general understanding of the nature of marriage and the obligations it entails rather than the more specific consequences it might have for the individuals in question.
29 It emerges from these authorities, I think, that a valid consent involves either a general understanding of marriage and its consequences, or an understanding of the specific consequences of the marriage for the person whose consent is in issue. It is not necessary, at least at this stage in the judgment, to rule on whether there is an inconsistency between these two approaches.[5]
[5] AK and NC (2004) FLC 93-178 at 79,021-022.
The questions arises whether under the Australian test there needs to be a general understanding of marriage and its consequences or an understanding of specific consequences of the marriage that the person is about to enter into.
Dr Anthony Dickey QC has also expressed a view:
Although S.23B(1)(d)(iii) refers to a person being mentally incapable of understanding the nature and effect of the marriage ceremony, it would seem that there is in fact only one substantial requirement here, for an application of the nature of a marriage ceremony necessarily involves an appreciation of its general effect. (Such an approach was adopted by the majority of the Court of Appeal in In the Estate of Park (1954) p89 at 127 and 133, applied in Australia in Brown and Brown (1982) 60 FLR 212 at 222-223.)[6]
[6] Anthony Dickey QC, Family Law, (5th ed, 2007), Law Book Company.
He has expressed a similar view elsewhere.[7]
[7] Broun & Fowler, Australian Family Law Practice, CCH Loose Leaf Service, January
It is not necessary in these proceedings to decide how wide the test in subpara. 23B(1)(d)(iii) is, but only whether it applies to the wife. But it is in my view significant that the legislation not only requires a capacity to understand “the effect” but also refers to “the marriage” rather than “a marriage”. In my view taken together those matters require more than a general understanding of what marriage involves. That is consistent with consent in contract being consent to the specific contract with specific parties, consent in criminal law to sexual intercourse being consent to intercourse with the specific person, and consent to marriage being consent to marriage to the specific person.
CONCLUSIONS AS TO WIFE’S CAPACITY TO UNDERSTAND THE NATURE AND EFFECT OF THE MARRIAGE CEREMONY
In this case the wife may have had a good understanding of what marriage is and involves, but she was incapable of applying that in considering what marriage to the husband would involve and in deciding whether to enter the marriage. She was incapable of considering the effect of the marriage on her. She was mentally incapable in that regard of understanding the effect of the marriage ceremony, and her consent was not real.
REFUSAL TO ALLOW WIFE TO RAISE BIGAMY
The cases of the applicants were throughout conducted on the basis that the ground relied upon was the wife’s capacity until the last day of the hearing. The matter had been listed that day to complete a few hours of cross-examination of the husband and for closing addresses. It was then that the wife’s Counsel sought to also rely on the ground of bigamy.
The refusal to entertain that ground was because the wife’s case had closed. The husband’s preparation and the evidence in chief in his case was complete and was done on the basis that bigamy was not a ground. It would have been grossly prejudicial and unfair to the husband to permit another party to then introduce another ground.
___________________
The Hon Justice Mullane - 9 March 2007
2007 at pp. 11,354-355.
[i]Marriage of Brown; re Dunne (1982) 8 Fam LR 1.
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as BABICH & SOKUR AND ANOR
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