Castles & Marshall
[2023] FedCFamC1F 925
•26 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Castles & Marshall [2023] FedCFamC1F 925
File number(s): MLC 6697 of 2009 Judgment of: JOHNS J Date of judgment: 26 October 2023 Catchwords: FAMILY LAW – NULLITY – s 23B(1)(d)(iii) of the Marriage Act 1961 (Cth) – where a decree of nullity is sought – where the parties were married in 2007 – where the applicant suffered an acquired brain injury prior to the marriage – where the applicant argues that he was not capable of giving real consent at the time of the marriage – where the wife filed a submitting notice and elected not to participate in proceedings – where the applicant sought that an inference be drawn that the appointment of a litigation guardian for him in 2009 meant that he was not able to give real consent at the time of the marriage – where the applicant failed to produce evidence as to his capacity to understand the nature and effect of the marriage at the time of the marriage – where the medical evidence relied upon all post-dates the time of the parties’ marriage and does not address the question of the husband’s capacity to provide real consent Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act1975 (Cth), s 51
Marriage Act1961 (Cth), ss 23, 23B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), rr 2.22, 3.12
Cases cited: AK & NC (2004) FLC 93-178 Division: Division 1 First Instance Number of paragraphs: 77 Date of hearing: 4 November 2022; 24 November 2022; 24 February 2023 Place: Melbourne The Applicant: Litigant in person The Respondent: Litigant in person (did not participate) ORDERS
MLC 6697 of 2009 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CASTLES
Applicant
AND: MS MARSHALL
Respondent
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
26 OCTOBER 2023
THE COURT ORDERS THAT:
1.That the husband’s Amended Application for Final Orders filed 1 April 2022 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Castles & Marshall has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
By Amended Application for Final Orders filed 1 April 2022, the applicant husband, Mr Castles, seeks a Decree of Nullity of Marriage in respect of his marriage to the respondent wife, Ms Marshall, solemnised in Melbourne, Australia in 2007.
BACKGROUND
The husband is aged 53 and was born in Melbourne, where he continues to live. Until 2006, he was engaged in full-time employment as a professional. Since 2006, the husband has been unable to work due to injuries sustained by him in a motor vehicle accident.
The wife is aged 57. She is employed as a Sales Assistant.
There is some disagreement between the parties as to when they commenced cohabitation. The wife’s case is that the parties commenced cohabitation in late 2001, whilst the husband maintains that cohabitation commenced in early 2002. Nothing in the current dispute turns on that issue.
There are two children of the marriage, Mr X, born 2002 (aged 21 years) and Y, born 2006 (aged 17 years).
In 2006, the husband was involved in a serious motor vehicle accident while driving with the child Mr X, then aged 4 years. The husband sustained an acquired brain injury as well as other significant injuries. The husband was hospitalised, and then in rehabilitation for a period of approximately 10 months in total. Upon discharge from rehabilitation, the husband resumed living with the wife and children with the assistance of a full-time carer to assist him with daily tasks.
Approximately 12 months after the accident and some three months after the husband was discharged to live at home with the support of a full-time carer, the parties entered into marriage at the Victorian Marriage Registry in Melbourne. The marriage was solemnised in 2007.
The parties’ marriage appears to have been marked by significant difficulties, in part due to behavioural issues experienced by the husband following his brain injury. Ultimately, the parties separated on a final basis in July 2009.
Proceedings were first commenced by the respondent wife in July 2009 with respect to parenting and property matters. Those proceedings were ongoing for some five years. A Case Guardian was appointed on behalf of the husband in those proceedings. Final property orders were made by consent on 26 November 2010. Further orders were made by consent with respect to property and child support on 12 February 2014.
Although separated for some 14 years, the parties have not divorced. The husband commenced his current application, seeking a Decree of Nullity of Marriage, in August 2020. When pressed as to why the parties did not simply divorce, Counsel then appearing for the husband stated that from the husband’s perspective, it is a “matter of principle”.
As part of his original application the husband sought the removal of his Case Guardian, who had been appointed during the property proceedings. That application was heard by Hartnett J on 11 January 2021. There was no appearance on behalf of the wife at that hearing. That day, orders were made that the husband’s Case Guardian be removed and otherwise the matter was placed in the list of cases awaiting allocation to a judicial docket.
The matter was listed before me for a first day hearing on 13 May 2022. That day, Dr B of Counsel appeared for the wife and sought leave to file a Submitting Notice on behalf of his client in accordance with Rule 2.22 of the Federal Circuit and Family Court of Australia Rules 2021 (Cth) (“the Rules”). It was submitted that upon the filing of that notice, the wife ought be excused from further participation in the proceedings. The wife’s position was that whilst she did not accept or agree with the husband’s contentions in relation to the marriage, she did not wish to incur legal costs in relation to the matter. Leave was granted to the wife to file that notice.
The wife’s Submitting Notice was filed on 20 May 2022 and confirmed that the wife submits to any order the Court may make in the proceedings, and that she does not want to be heard on the question of costs. The wife took no further part in the proceedings.
The husband contends that his health and capacity has markedly improved since 2015, that he is now living independently and is no longer reliant upon carers to assist in the completion of daily tasks. Due to this improvement, the husband contends he has achieved clarity as to the true extent of his disability in the years immediately following his accident; he maintains that he could not have understood the nature and effect of the marriage, nor agreed to be married at the time of the marriage ceremony. As a result, he seeks a declaration of nullity of the marriage.
MATERIAL RELIED UPON AND ORDERS SOUGHT
The husband relied upon the following documents:-
·Amended Application for Final Orders filed 1 April 2022;
·Affidavit of the Applicant filed 30 September 2022;
·Affidavit of Ms D filed 20 January 2023; and
·Documents tendered throughout the course of proceedings, being Exhibits A1 and A2.
The order sought by him, as contained in his Amended Application for Final Orders filed 1 April 2022, is as follows:-
The marriage solemnised at […] Melbourne, [in] 2007 between the Applicant and the Respondent be, and is hereby, declared to be absolutely null and void.
LEGAL PRINCIPLES
Section 51 of the Family Law Act 1975 (Cth) (“the Act”) provides that:-
An application…for a decree of nullity of marriage shall be based on the ground that the marriage is void.
A void marriage is of no effect in law. It is not a marriage at all, whether or not a decree declaring it void has been pronounced. The decree of nullity is simply a declaration which confirms the fact that there was never a valid marriage.
The grounds upon which a marriage may be found to be void are set out at s 23B of the Marriage Act1961 (Cth) (“Marriage Act”), which provides as follows:-
(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 did not understand the nature and effect of the marriage ceremony; or
e.either of the parties is not of marriageable age;
and not otherwise.
The husband relies upon s 23B(1)(d)(iii) of the Marriage Act. That is, he contends that his consent to the marriage was not a real consent as he did not understand the nature and effect of the marriage ceremony. The relevant time for assessing whether the husband’s consent was real consent is at the time of the marriage ceremony, not some other time before or after the ceremony. In this case, the relevant time is as at 2007, being the date of the parties’ marriage.
The onus the establishing the ground upon which the marriage may be declared void rests with the husband.
Therefore, I must be satisfied, on the balance of probabilities in accordance with s 140 of the Evidence Act 1995 (Cth), that the husband did not understand the nature and effect of the marriage ceremony at the time of the marriage.
THE HEARING
The matter was listed as a single day final hearing before me on 4 November 2022. That day, the husband represented himself. There was no appearance by or on behalf of the wife.
Upon commencement of the hearing, the husband sought leave to tender Written Submissions upon which he sought to rely. I granted leave as sought and those submissions were marked as “Exhibit A1”.
I raised with the husband at the commencement of the hearing my concern as to the absence of expert evidence regarding his capacity to understand the nature and effect of the marriage at the time it was solemnised.
The husband invited me to adopt a line of “inferential reasoning”, relying upon the letters of Ms C, Clinical Neuropsychologist dated 18 September 2008, 4 November 2008 and 12 February 2009 and Ms E, Clinical Neuropsychologist dated 4 December 2017, annexed to his affidavit filed 30 September 2022. The husband submits that having regard to those letters and reports, I can draw an inference that he had reduced capacity to provide real consent to the marriage at the time of the marriage.
Given the paucity of evidence before the Court in relation to the husband’s capacity to give consent at the time of the marriage, I gave him further opportunity to adduce evidence in support of his case and adjourned the hearing to 24 November 2022.
Upon the matter’s return to Court, it became evident that the husband had not availed himself of the opportunity to adduce further medical evidence. At the adjourned hearing the husband indicated that he sought to adduce evidence from his mother (who did not attend the marriage ceremony, and from whom he was estranged at the time of marriage), and from his medical practitioners who were providing care to him at the time of the marriage. In the circumstances, I again adjourned the matter to afford the husband another opportunity to obtain the necessary evidence.
On 24 February 2023, the matter returned for final hearing.
The husband had not produced any further medical evidence as to his capacity to understand the nature and effect of the marriage at the time of the parties’ marriage. The only additional material filed by him was an affidavit from his mother and further Written Submissions prepared by the husband in support of his case (Exhibit A2).
THE EVIDENCE
The husband relies upon the evidence contained in his affidavit filed 30 September 2022 and the letters and reports annexed to that affidavit from two Clinical Neuropsychologists who have assessed him since his accident. In addition, he relies upon the affidavit of his mother, Ms D filed 20 January 2023.
The husband deposes in his affidavit that the marriage was arranged by the wife, “unbeknownst” to him. He deposes that the wife arranged a small ceremony at which her father, two of her “distant” friends and one of the husband’s old university friends attended. The husband’s parents were not invited to attend the wedding.
In the letter of Ms C, Clinical Neuropsychologist dated 18 September 2008 (annexure DC1 to the husband’s affidavit), she notes the husband’s report that he was “estranged from his parents and brother”. She also reported that the husband at that time was “often in contact with his family as he believes they owe him money”.[1]
[1] Husband’s affidavit filed 30 September 2022, annexure DC1, p. 11.
The husband deposes that he has no recollection of the marriage ceremony, deposing that he only knows what he has subsequently been told by those who attended. Significantly, the husband has adduced no evidence from any of those witnesses who did attend the ceremony, which he deposes includes “one old university friend”, notwithstanding that seemingly he has had discussions with them about the events of that day. The absence of any evidence from witnesses who attended the marriage ceremony invites an inference that their evidence would not have assisted the husband’s case.
Ms E, Clinical Neuropsychologist
The husband places significant reliance upon the assessment of Ms E in her report dated 4 December 2017 (annexure DC2). The difficulty with placing reliance upon that assessment is that it has been prepared for a purpose other than assessing the husband’s capacity to understand the nature and effect of the marriage. Ms E sets out the purpose of her assessment at page 1 of her report, noting that the husband was referred for assessment by his then lawyer for the following reasons:-
·To assess his condition, diagnosis, and a likely prognosis;
·To give an opinion regarding his capacity to manage his financial and legal affairs; and
·To assess his capacity to provide instructions in relation to his claim against TAC, and to understand complex legal advice regarding that claim.
It is an assessment prepared more than 10 years after the date of marriage.
It is evident from Ms E’s report that she has reviewed a large volume of material including medical and psychological assessments, and medico-legal reports prepared over a 10-year period from 2006 until 2016. In addition, she had available to her CT brain scans conducted from 2006, being the date of the husband’s accident, until two months later.
The assessments reviewed include reports from several of the husband’s then-treating practitioners and specialists.
Ms E does not report that any of those assessments addressed the issue of the husband’s capacity to provide consent to the marriage, or his capacity to understand the nature and effect of the marriage.
None of the reports or assessments referred to in her report have been produced to the Court.
Further, there is no evidence as to Ms E’s area of expertise or her qualifications; it is unclear as to whether she is appropriately qualified to assess the content of the reports received from those experts. Ms E concedes that she did not have access to the husband’s original medical file.
Ms E reports as to the husband’s personal history at page 4 of her report, noting that:-
[The husband and the wife] married, he said because she blackmailed him by saying he would never see his son again if he did not marry her.
That account as to the husband’s reason for marrying is at odds with the case he now puts before the Court.
Ms E reported that she first saw the husband in 2012, almost five years after the parties’ marriage, at which time she noted “frontal behavioural issues such as impulsiveness, inappropriateness and disinhibition”. Following that assessment, VCAT assessed the husband as having capacity to manage his finances.
Since that time, Ms E has noted improvement in the husband’s behaviours and reports that since gaining control of his financial affairs the husband has managed his money reasonably well with no evidence of significant impulsive spending. She also notes that the husband has purchased his own apartment, has investment properties and that there have been no concerns about his ability to manage his affairs.
In conclusion, Ms E makes the following assessment of the husband:-
It is my opinion that while his cognitive deficits might hinder his ability to generate new ideas and solutions he has no difficulty understanding complex information given to him, can provide complex information, and can remember it adequately. His reasoning behind his planned pursuit of TAC for costs suggests that he is able to generate new ideas given plenty of time, and also demonstrates the long term retention of a multitude of events and a good understanding of how these events intertwine and amount to a potential legal case.[2]
[2] Husband’s affidavit filed 30 September 2022, annexure DC2, p. 43.
Ms E concluded that in her view the husband does have capacity to give and receive complex legal instruction. She notes that this does not mean that the husband necessarily makes good decisions regarding his legal cases, but that this is not a basis for determining capacity.
Having carefully considered her report, I am satisfied that Ms E’s report does not support the husband’s contention that he did not understand the nature and effect of the marriage ceremony. That report does not address the husband’s capacity at the time of the parties’ marriage. Whilst the earlier reports reviewed by Ms E indicate that the husband suffered significant injury as a result of the motor vehicle accident, they provide no insight as to his capacity to understand the nature and effect of the marriage ceremony. In any event, even were those matters addressed, given that Ms E is not the maker of those earlier reports and did not conduct those assessments, little weight could attach to such evidence.
Ms E concludes, and I accept, that at the time of her assessment of the husband in 2017, she considered he did have capacity to understand complex information and manage his affairs. It is also evident, and I accept, that Ms E has observed improvement in the husband’s cognitive functioning since 2012. However, I am satisfied that that assessment does not assist the Court in determining the husband’s capacity as at the time of marriage in 2007.
Ms C, Clinical Neuropsychologist
The husband also relies upon the letters written by his then treating Clinical Neuropsychologist, Ms C whose letters dated 18 September 2008, 4 November 2008 and 12 February 2009 are annexed to his affidavit (annexure DC1). Those letters are referrals for psychiatric treatment (in the case of the letter of 18 September 2008) and respite services (in the case of the letters dated 4 November 2008 and 12 February 2009). Again, those letters do not address the question of the husband’s capacity to understand the nature and effect of the marriage that he entered into in 2007.
In the background information obtained by Ms C and set out in the first letter, she notes that neuropsychological assessments of the husband indicated that he had severe deficits in terms of executive functions and difficulties with concentration, memory and new learning. She also reported that the husband had “made great gains” since his discharge from the rehabilitation hospital, which I note was prior to the parties’ marriage, but that as he had made those gains towards independence, his behaviour had at times become “quite challenging”.[3]
[3] Husband’s affidavit filed 30 September 2022, annexure DC1, p. 10.
The purpose of the first letter by Ms C was to seek a risk evaluation in relation to the husband’s behaviour and a treatment and medication review. That letter does not address the question of whether the husband had capacity to provide consent to the marriage; it provides no assessment as to the husband’s capacity to understand the nature and effect of the marriage ceremony.
Similarly, the second letter was written in support of the husband’s application for respite accommodation to enable the wife and the children to take a vacation, and for supported accommodation to enable the parties to have a “trial” separation. Ms C states that the request is made as a result of the husband’s “challenging behaviour”, which she described as “aggressive” and “agitated” and impacted upon the wife and the children.[4] That letter does not address the question of the husband’s capacity to provide real consent to the marriage in 2007.
[4] Husband’s affidavit filed 30 September 2022, annexure DC1, p. 17.
The third letter written by Ms C, dated 12 February 2009 is a further letter seeking respite care for the husband.
Mr C’s letters were written more than two years after the parties’ marriage. They provide no information or insight as to the husband’s ability to understand the nature and effect of the marriage ceremony at the time of the marriage. The letters address the impact of the husband’s injuries upon his behaviour, and particularly his poor impulse control.
I am satisfied that those letters do not address the issues relevant to this application.
Ms D
The husband’s mother, Ms D, filed her affidavit on 20 January 2023. She deposes that she made the affidavit in support of the husband’s application stating that she was “devastated when we found out [the husband] was married”.[5]
[5] Affidavit of Ms D filed 20 January 2023, [1].
Ms D deposes that she was not invited to the parties’ wedding and was not told of the marriage until 2009 after the parties had separated.[6]
[6] Affidavit of Ms D filed 20 January 2023, [2].
Ms D deposes that prior to the husband’s accident she suggested to him that he should marry the wife. She deposed that the husband stated that he was against the idea of marriage. The evidence of Ms D does not indicate when or where those conversations are said to have occurred.[7]
[7] Affidavit of Ms D filed 20 January 2023, [4], [9] and [11].
Following the husband’s accident in 2006, Ms D deposes that her relationship with the wife “came to a halt”.[8] Ms D deposes that she visited the husband on one occasion in 2008 on an unspecified date. Ms D is critical of the care provided by the wife to the husband in the aftermath of the accident.
[8] Affidavit of Ms D filed 20 January 2023, [12].
Ms D deposes that she was not informed of the marriage until July 2009, when the husband commenced living with her. Further, she deposes that the husband stated that he could not recall the marriage ceremony.
Ms D had no communication with the husband at the time of the marriage ceremony or in the period immediately prior to or after it. As such, she is not able to give evidence as to the husband’s capacity to consent at the time of the marriage. Further, I am satisfied that her evidence as to the husband’s earlier held views regarding marriage, or any views expressed by him after the parties’ separation, do not assist the Court in determining whether the husband understood the nature and effect of the marriage ceremony at the time it was conducted. Accordingly, little weight can attach to that evidence.
THE HUSBAND’S SUBMISSIONS
In his Written Submissions tendered on 4 November 2022 (Exhibit A1) the husband confirms his reliance upon the reports of Ms C and Ms E. The husband submits that he had a “life-long rejection to the concept of marriage” which is why he says he was not married at the time of the motor vehicle accident. The evidence of the husband’s mother supports that submission.
Ms D deposes that she suggested the parties marry at or about the time of the wife’s pregnancy with the parties’ first child, who was born some five years prior to the parties’ marriage and made further suggestions following the birth of their second child. There is no evidence as to the husband’s attitude to marriage at or about the time of the marriage ceremony. The reality is that the motor vehicle accident was a life-changing event for the husband which also had a dramatic impact upon the wife and their children. That his views in relation to marriage may have shifted in the aftermath of the accident, in my view, is unsurprising.
The husband submits that the fact that he required a Litigation Guardian in the earlier Family Court proceedings supports his contention that he was not able to understand the nature and effect of the marriage ceremony.
The question of capacity to give consent to a marriage was considered by Chisholm J in AK & NC (2004) FLC 93-178. In that decision the Court dismissed an application for a Decree of Nullity in relation to a marriage entered into by parties who were in their eighties in circumstances where the wife was in a nursing home suffering from dementia, and under guardianship at the time of the marriage. As to the question of whether a party is capable of real consent and has capacity to understand the nature and effect of the marriage ceremony, Chisholm J reviewed the authorities and stated:-
19.What does this provision require? In In the Estate of 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 a 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:
Q – Did you ever know anybody who was in a condition to understand all the consequences of matrimony?
A – 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.
…
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.
Having regard to that decision, I do not accept the husband’s submission that the fact that he had a Case Guardian in the property proceedings supports his contention that he did not have the capacity to consent to the marriage. As identified in the decision of AK & NC, the assessment of capacity to marry as articulated in s 23B(1)(d)(iii) does not require a person to have a detailed and specific understanding of the legal consequences of marriage in order to be capable of giving valid consent to a marriage. The legal test for the determination of whether a Case Guardian ought be appointed is different, and involves considerations as to whether a person understands the nature and possible consequences of proceedings or is not capable of adequately conducting or giving instructions to conduct the proceedings (per r. 3.12 of the Rules).
In any event, Ms E’s report in 2017 as to the husband’s then stated reasons for marrying contradict his now asserted position in relation to his “long-standing” attitude to marriage. That inconsistency significantly undermines his position in relation to whether he had capacity to consent to the marriage.
The husband submits that the wife arranged the marriage, believing that was the only means by which she could obtain financial security for herself and the children. The husband adduces no evidence to support that submission.
The husband also submits that his parents were “absolutely devastated” upon learning of the marriage, that they never accepted the marriage and encouraged him to seek an annulment of the marriage. Those matters are not relevant to the question of whether the husband had capacity to give real consent to the marriage.
The submissions in Exhibit A1 are largely repeated by the husband in his further Written Submissions tendered 24 February 2023 (Exhibit A2). In addition to those matters, the husband submits that he was unable to consummate the marriage and that this further advances his case that he did not have capacity to enter the marriage. That matter, again, is not relevant to the determination of the issues before the Court.
CONCLUSION
Whilst I acknowledge the husband will be deeply disappointed with my decision, the law is clear that there is no discretion in the determination of this matter. Simply put, the Court must determine whether the husband had the necessary capacity at the date of the marriage to understand the nature and effect of the marriage ceremony. If he did, the marriage is valid. If he did not, the marriage is void.
As set out earlier in the judgment, the husband adduces no evidence as to his capacity to enter into the marriage at the time of the marriage. Whilst a friend from his university days was a witness at the marriage, that witness has not been called to give evidence in these proceedings. The inference to be drawn from that person’s absence is that he could not have assisted the husband’s case.
Further, the evidence upon which the husband places significant reliance are letters and reports prepared by Neuropsychologists upon whom the husband attended a year or more after the marriage ceremony. Neither Ms C nor Ms E undertook any assessment of the husband’s cognitive abilities in the immediate period prior to or following the parties’ marriage. Their letters (Ms C) and report (Ms E) do not address the husband’s capacity to understand the nature and effect of the marriage at the time of the marriage ceremony.
Further, the evidence of the husband’s mother regarding his attitude towards the institution of marriage years prior to the marriage does not assist the Court in determining whether the husband had the capacity to provide real consent to the marriage.
The husband had a range of medical professionals providing treatment to him following the accident and leading up to the date of the parties’ marriage; none of those experts, who may have been able to provide evidence as to the husband’s capacity to understand the nature and effect of the marriage ceremony in that period, have been called to adduce evidence. As a result, I cannot be satisfied that the husband did not give real consent to the marriage in accordance with the provisions of s 23B(1)(d)(iii) of the Marriage Act.
Having regard to the above matters, I am not satisfied on the balance of probabilities that the husband did not understand the nature and effect of the marriage at the time of the marriage ceremony. Accordingly, the husband’s application must fail.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 26 October 2023
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