Catesby & Dhillon

Case [2021] FedCFamC1F 124

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Catesby & Dhillon [2021] FedCFamC1F 124

File number(s): HBC 717 of 2021
Judgment of: MCGUIRE J
Date of judgment: 14 October 2021
Catchwords: FAMILY LAW - NULLITY - application by Public Trustee as Case Guardian for the wife for a decree of nullity of marriage –  where wife lacked the capacity to give informed consent due to a lifelong intellectual disability – declaration that marriage is not a valid marriage and is void and a nullity
Legislation:

Family Law Act 1975 (Cth) ss 51 and 113

Evidence Act 1995 (Cth) s140(1)

Marriage Act 1961 (Cth) s 23B

Cases cited:

Sikander & Vashti (2018) FLC 93-845

Teves & Campomayor (1995) FLC 92-578 at 81,740

Oliver (Deceased) & Oliver [2014] FamCA 57

Babich & Sokurand Anor [2007] FamCA 236

AK & NC [2003] FamCA 1006

Division: Division 1 First Instance
Number of paragraphs: 64
Date of hearing: 8 October 2021
Counsel for the Applicant: Ms Margaret Chandler
Solicitor for the Applicant: Legal Aid Commission of Tasmania
Solicitor for the Respondent: No appearance

ORDERS

HBC 717 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS CATESBY

Applicant
AND:

MR DHILLON

Respondent

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

14 OCTOBER 2021

THE COURT ORDERS THAT:

1.The application proceed undefended the respondent.

2.That pursuant to s 23B(1)(d)(iii) of the Marriage Act 1961 (Cth) and ss 51 and 113 of the Family Law Act 1975 (Cth) the purported marriage between Ms Catesby ('the Applicant') and Mr Dhillon ('the Respondent’) at B Street, Suburb C in Tasmania on … 2019 is not a valid marriage and is void and a nullity.

3.That the Applicant's Case Guardian have leave to provide a copy of this order to the Registrar of the Registry of Births Deaths and Marriages (Tasmania) with a request that the records be amended to give effect to this Declaration and Order.

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 a pseudonym Catesby & Dhillon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

McGUIRE J

APPLICATION

  1. This is an application by the Public Trustee as Case Guardian for the Applicant, Ms Catesby, for a declaration that the marriage between the Applicant and the Respondent, Mr Dhillon, is void and for…

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AGLC
Catesby & Dhillon [2021] FedCFamC1F 124
Case
[2021] FedCFamC1F 124
Decision Date

CaseChat Overview and Summary

The case of Catesby & Dhillon involved a dispute regarding the validity of a marriage between the Applicant, Catesby, and the Respondent, Dhillon. The Applicant, who has a significant intellectual disability and epilepsy, was represented by her sister and legal guardian, Ms F Catesby. The Respondent, who was not a party to the proceedings, was alleged to have engaged in financial and emotional abuse towards the Applicant. The case was heard in the Family Court of Australia.

The central legal issue was whether the Applicant had the mental capacity to understand the nature and effect of the marriage ceremony, as required by the Marriage Act. The court needed to determine if the Applicant's consent to the marriage was genuine and informed, considering her intellectual disability and the specific circumstances surrounding the marriage. The onus was on the Applicant to prove her incapacity on the balance of probabilities.

The court found that the Applicant did not have the capacity to understand the nature and effect of the marriage ceremony. The evidence, including expert assessments and testimonies, demonstrated that the Applicant had significant cognitive impairments, particularly in understanding complex concepts and adapting to changes in routine. The court concluded that the Applicant's intellectual disability and the specific circumstances of the marriage, including the absence of family members and the presence of unknown witnesses, supported the finding of incapacity.

As a result, the court declared the marriage null and void under the Marriage Act. The decision highlighted the importance of ensuring that individuals with disabilities are fully informed and capable of consenting to significant life events, such as marriage. The court's ruling underscored the need for careful consideration of mental capacity in such cases, emphasizing that a nullity decree should not be granted lightly but is mandatory when the conditions are met.

Orders

Orders of the court

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Background

Background to the litigation

By order of the 5 August 2021 the Public Trustee of the State of Tasmania was appointed as Case Guardian for the Applicant pursuant to the Rules of this Court. BACKGROUND The Applicant was born in 1976 and is 45 years of age. The best information suggests that the Respondent was born in 1981 and is 40 years old. He is of South Asian origin. His status in Australia is not clear. He has most recently worked in transport, but may also have been a tertiary student. The Applicant has been diagnosed as having a significant intellectual disability secondary to significant birth and Peri-natal Hypoxia. She also suffers from epilepsy causing severe tonic-clonic ('grand–mal’) seizures. The Applicant has lived in supported accommodation for her adult life. In 2004 she moved into her current accommodation at D Housing, Suburb E. The Applicant, on the evidence, maintains a close and loving relationship with her family. On 21 October 2014 the Applicant's sister, Ms F Catesby, was appointed as Guardian and Administrator for the Applicant for a three-year period such being renewed on 19 October 2017. On the evidence, a relationship of sorts commenced between the Applicant and the Respondent in about January 2019. On 4 February 2019 a transport company, G Company, informed Ms F Catesby via a support worker at D Housing of the Applicant’s monthly transport bill increasing from $400 per month to near $3,000 per month. The Applicant does not hold a drivers licence. As a result, Ms F Catesby directed D Housing to not permit the Respondent to visit the Applicant although it was understood that meetings then took place away from the D Housing centre. On 4 June 2019 Ms F Catesby corresponded with the Respondent confirming her role as guardian for the Applicant, confirming the Applicants disabilities together with a request to the Respondent to cease contact with the Applicant. On 17 June 2019 it is now known that the Applicant and the Respondent met with a marriage celebrant. On 19 June 2019 Ms F Catesby applied for a Family Violence Order (‘FVO’) on behalf of the Applicant against the Respondent in the Hobart Magistrates Court alleging financial and emotional abuse. An interim FVO was made in that Court on 28 June 2019. On … 2019 the Applicant's father died with the evidence being of a close relationship and a consequent further impact on the Applicant's mental capacity. On … 2019 a marriage before a celebrant took place in Suburb C. None of the Applicant's family were present. It is asserted that the Respondent provided two witnesses unknown to the Applicant or her family. On 23 July 2019 the interim FVO was served by Tasmania Police on the Respondent. On … 2019 the marriage was registered. There is evidence before this Court of further attempts by the Applicant’s representatives to obtain an affidavit from the marriage celebrant but with no cooperation. Ms F Catesby does, however, deposes as to her direct conversations with that celebrant. On 14 November 2019 the Public Trustee was appointed as administrator for the Applicant due only to the prima facie conflict for Ms F Catesby in respect of the Will of the their late father.

Evidence

Evidence Before The Court

The Application before me is made pursuant to subsection (iii) of the Marriage Act in that the Applicant did not have the capacity to understand the nature and effect of the ceremony.THE EVIDENCEMs F Catesby Ms F Catesby sworn an affidavit on 4 June 2021. She is the Applicant's sister and Guardian such status renewed as recently as 4 October 2021. Ms F Catesby deposes as to the Applicant’s diagnosis of brain damage from hypoxia and also epilepsy. She references the Applicant living at D Housing for the last 16 years. Ms F Catesby says that she became aware of increased transport fares incurred by the Applicant up to around $3,000 per month and that the Applicant was in a relationship with her driver, the Respondent, whereupon she determined to make an application for a FVO referred to in the chronology above. Ms F Catesby deposes that the Applicant did not inform her of the wedding ceremony despite the nature of their relationship as sister and guardian. She says that she did not discover the fact of the marriage until mid-2020 some 12 months after the event and despite continuing supportive and frequent contact with his sister. At paragraph [17] and following Ms F Catesby deposes as to contacting the marriage celebrant, Ms H, on 2 July 2020 where Ms H recalled the Applicant being comfortable in the company of the Respondent but herself questioning whether '[the Applicant] really understood' and suspecting a marriage for 'visa reasons'. The marriage celebrant reported that the two witnesses were 'obviously friends with the groom'. Ms F Catesby deposes that the Applicant was present at her own wedding and that of their sister but ‘seemed to understand marriages, the wedding, and the wedding as a party where you dress up'. Annexed to Ms F Catesby's affidavit is the application for a FVO. It sets out that the Applicant had accrued $2,889 in transport fares for trips around Tasmania for the period 21 January 2019 – 3 February 2019 and that the Applicant had been communicating directly with the driver, the Respondent, via mobile telephone rather than going through the G Company call centre. The G Company confirmed that the Applicant had been a long-term customer with usual monthly transport bills of around $400. Also annexed to Ms F Catesby's affidavit is an Assessment of Cognitive Functioning and Adaptive Functioning prepared by psychologists, Mr J and Ms K of the Department of Health and Human Services dated the 11 May 2016. This report predates the Applicant meeting the Respondent and under the heading 'Summary and Conclusions' appears the following:[The Applicant] is a 39 year old woman with mild intellectual disability who was referred for the purpose of assessing her cognitive and adaptive functioning. This, as a result of her family becoming increasingly concerned in regard to an apparent decline in [the Applicant’s] decision making and understanding of responsibilities. Assessment with the WAIS–IV, WHODAS and TACL–3 identify that [the Applicant] has difficulties with working memory, processing speed, understanding verbal language and her assessment scores reflect performance levels that largely fall well below those of her age matched peers. In addition, the absence of previous assessment results precludes opportunity to gauge cognitive change over time.[The Applicant] is at times unlikely to acknowledge in conversation that she has not understood a concept or got the gist of what her conversational partner is attempting to convey. Thus, it would be easy for someone communicating with [the Applicant] to mistakenly assume that she understands an instruction or situation when she in fact does not.When communicating with [the Applicant] it is important that people use clear and simple language and that vocabulary and word choice are adjusted to match [the Applicant’s] abilities. When complex words are required they should be given a simple definition. People should also attempt to use open questions when trying to ascertain [the Applicant’s] opinion, as the responses may depend on how the question was presented and she may agree without having a full understanding of a situation.As stated previously, [the Applicant’s] working memory is poor, and hence while she is likely to have good independent skills to perform tasks that she has learnt through repetition, she may experience some difficulty adapting to change in routine that was presented verbally.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I determined that it was not necessary for the Applicant to be in court.CONSIDERATION The issue here is whether the consent of the Applicant was not a real consent because of mental incapacity in understanding the nature and effect of the marriage ceremony. The relevant time of such capacity is at the time of the ceremony of marriage. That is, the capacity goes to the ability to understand the nature of the marriage contract and the duties and responsibilities which it creates.[1] [1] Sikander & Vashti (2018) FLC 93-845. The onus is on the Applicant to prove the standard on the balance of probabilities as now provided in the Evidence Act 1995 (Cth) at s 140(1):(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:(a)the nature of the cause of action or defence, and(b)the nature of the subject-matter of the proceeding, and(c)the gravity of the matters alleged. In this respect, Lindenmayer J in Teves & Campomayor[2] said:A nullity decree is not to be granted lightly. Moreover, the grant of a decree of nullity is not discretionary. If the facts established that the marriage is invalid, relief must issue.[2] (1995) FLC 92-578 at 81,740. Notably, the Respondent has not filed a Response and did not appear to challenge the Application. Consequently, should the Court be satisfied on the balance of probabilities that the Applicant did not have the capacity to understand the nature and effect of the marriage ceremony then the Respondent has neither given nor adduced evidence to the contrary being as to the Applicant's capacity.[3][3] Oliver (Deceased) & Oliver [2014] FamCA 57, at paragraph 1. The issue of mental incapacity at the point of time of the marriage ceremony was considered in detail and historically by Mullane J in Babich & Sokur and Anor [4] and similarly by Chisholm J in AK & NC[5] where his Honour says:[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”. (Footnote omitted)… [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.[4] [2007] FamCA 236.[5] [2003] FamCA 1006. Significantly, in my view, s 23B(1)(d)(iii) references 'the marriage' rather than 'a marriage' in general form. That is, the capacity to understand nature and effect references a specific person, time, place and event.FINDINGS On the evidence and on the balance of probabilities I find that the Applicant suffered a hypoxic birth injury resulting in an acquired brain injury with consequent lifelong intellectual disability. That diagnosis is compounded by a later diagnosis of epilepsy.