Catesby & Dhillon
[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
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 a consequent decree of nullity to be granted.
The Application proceeded to hearing on 8 October 2021 undefended the Respondent where there was no appearance by or on behalf the Respondent on that day and where the Respondent has filed no Response or material in respect of the Initiating Application filed 22 July 2021.
The matter had previously been listed on 5 August 2021. There was no appearance by or on behalf the Respondent on that day although there had been some email communications through an intermediary. In any event, the matter was adjourned from 5 August 2021 with orders inter-alia for the Respondent to make, file and serve a responsive affidavit and any affidavits of witnesses within 21 days of the date of service of that order. The Applicant's solicitors were required to effect service and I have affidavits accordingly satisfying me as to service on the Respondent.
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.
On 7 November 2019 a final FVO was made in the Hobart Magistrates Court in favour of the Applicant against the Respondent. The Respondent did not appear at that hearing. Service proved difficult. There have been two alleged breaches of the FVO and the evidence is that a current warrant was issued approximately 12 months ago but not yet executed.
On 1 July 2020, approximately one year after this the marriage, the Registry of Births Deaths and Marriages (Tas) informed the Public Trustee of the lodgement of the marriage certificate.
RELEVANT LAW
This Application is made pursuant to s 51 of the Family Law Act 1975 (Cth) (‘the Act') which provides that an application for a decree of nullity is to be based on the ground that the marriage is void. Section 23B(1) of the Marriage Act 1961 (Cth) ('the Marriage Act') provides relevantly that:
Grounds on which marriages are void
(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; …
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 EVIDENCE
Ms 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.
Instructions were taken from Ms F Catesby by counsel advising that the Applicant and Respondent did not cohabit and that the Applicant remained resident at all times at D Housing, although the Respondent visited the Applicant.
Mr L
Mr L is an employee of the Public Trustee. He swore an affidavit on 10 May 2021. His duties include the responsibility for the affairs of the Applicant which he has conducted only since April 2021. Ms M was his predecessor. He has access to the records of the Public Trustee in respect of the Applicant.
Mr L confirmed the role taken as administrator when it became evident that Ms F Catesby had an interest potentially in conflict with that of the Applicant in respect of their late father's estate.
Mr L deposes that the Public Trustee became aware of the marriage between the Applicant and Respondent only in July 2020 after contact with the Registry of Births Deaths and Marriages (Tas) requesting a copy of the Applicant's birth certificate. Mr L deposes:
[13]Based on the information about [the Applicant] and her disability, which is severe epilepsy and an acquired brain injury (hypoxia at birth), I believe that either her consent could not be valid because she did not understand it or because it was not real consent having been obtained by duress or fraud, as she could not have understood the nature of the ceremony.
Mr L refers to the updated functional assessment following that of Mr J and Ms K and conducted by Ms N, Occupational Therapist, which identified:
[20][The Applicant] has strong desire to form connections and exposes herself to increased risk by seeking connection in dysfunctional/risky ways, due to lack of adequate supports/supervision. This has resulted in several reported sexual assaults.
Ms O
Ms O is the Applicant's mother and swore an affidavit on 4 June 2021. She deposes to the Applicant being intellectually disabled since birth and developing epilepsy in her teenage years with Ms O's understanding being that the Applicant has been assessed as having the intellectual functioning of an eight year old. She describes the Applicant as 'loves glittery things and sparkly things and fairy wings and unicorns. Very pink and pretty, which I think is a bit consistent with girls of that age'. She describes the Applicant is having a short attention span and ‘having little concept of consequences'.
Ms O deposes:
[11] She can write letters to people on my computer, and sometimes likes to do so. She spells very poorly, and often needs help to understand even basic words, or words that she has been hearing for years. An example was that recently she was wanting to write to her NDIS worker, and she asked 'what does independent mean?' Then, 'what does living mean?'
[12]It's almost like English is a foreign language where she picks up a word here or there.
[13]I have seen that [the Applicant] doesn't follow language. She doesn't, for example, understand innuendo, or metaphors or analogies or sayings. Someone said to her recently 'I have a high opinion of you – what does that mean?' She could not answer.
Ms O deposes further:
[19]In relation to relationships, any man that is kind to her for any reason, she assumes that they want to be her friends – and more. She will ask 'What does he mean if he says that I am nice?' ‘What does he mean if I am well mannered?' She doesn't have that same concept with girls.
[20]She does this with male support workers, assuming they are helping her because they like her and want a relationship with her. Another example is that [the Applicant] really likes the surfie shops. She will talk to the lovely young men who talk to her, and she talks back. She doesn't seem to realise that it is just them doing their job and being courteous.
[21]She is looking for love: she goes out on her own and talks to people, such as to the supermarket and talking to the trolley boys, to a men's hairdresser and talking to the men there whilst she gets a haircut. She goes to S Park and has come to grief a couple of times. She has had a couple of encounters with taxi drivers, because she talks to them, too. She had a relationship with one for a month and then he said he was going back to his wife. There have been encounters in toilet blocks. At times she has been harmed, or made bad decisions and ended up hurt (like the time she waited for a man who said he would turn up so long that she was fiercely sunburned).
Ms O says:
[23][The Applicant] has been to lots of marriages – even been a bridesmaid at her sister's wedding.
[24]I don’t think she understands marriages as an ongoing state. I think she understands that there is a ceremony which happens in a church (she has been to a marriage with a celebrant), and there is a bride, and a groom, and bridesmaids and flowers. She says that she really wants to get married, and that she is going to wear fairy wings.
[25]We have talked about being married over the years, about the day–to–day things like cooking and cleaning, but she does not want those aspects.
Ms O says that the Applicant did not discuss the Respondent with her and she denied at the relevant time that she had another boyfriend. Ms O says that at the time of the relationship between the Applicant and Respondent, the Applicant was saying she did not want to continue with her medication and wanted to change her doctor. She was detaching herself from persons who were her established support workers. She says that the Respondent blocked the Applicant from Ms O's phone but that the Applicant’s phone bill was 'astronomical'. Ms O says that the Applicant was suffering physically by losing weight, looking unwell and starting to seizure more frequently.
Ms O deposes as to not to learning of the wedding until approximately one year after the event to being in July 2020. She deposes:
[35]I asked her ‘Did you go to Service Tasmania with [the Respondent] at any time?’ and she said Yes. I asked what happened? She replied they asked me for my cards, by which I understood her to mean that she had given them her ID.
[36]I asked 'Did you go into a room with a lady who talked about marriage?’ She said No, just a lady with a lot of boxes in front of her, and papers.
[37]I asked, was anyone else there?' She replied 'There were 2 other people in another room. I think they were from across the road'.
Ms O says at [41] that the Applicant did not know it was a wedding and that Ms O herself did not inform the Applicant 'because it would only have distressed her'. Ms O says that she asked the Applicant whether '[the Respondent] talk to you about marriage?’, she says that the Applicant responded 'Yes, he said he would go to Melbourne and buy me a yellow car with lots of stickers'.
Ms O says she met the Respondent only once.
Dr P
Dr P provided an affidavit sworn 24 June 2021. She is a Clinical Neuropsychologist and Clinical Psychologist. Dr P was asked to provide an opinion as to whether the Applicant had the capacity to consent to marriage specifically at … 2019 and more generally in respect of the Applicant. The assessment was conducted on 9 and 10 February 2021. The report dated 1 March 2021 is comprehensive and detailed. Dr P says at page 6 that the Applicant presented as suspicious and hesitant in conversation and 'became visibly distressed when discussing [the Respondent], and she started hitting herself in the forehead repeatedly telling Ms F Catesby that she wanted to speak with her sister, Ms R… Affect was labile. [The Applicant] was easily overwhelmed and tearful when discussing [the Respondent] and also when discussing the death of her father, then became happy and excited when discussing members of her extended family'.
The Applicant was asked about her relationship with [the Respondent] and the marriage ceremony and the following appears at [7] of the report:
a.When asked about her relationship with [the Respondent], [the Applicant] replied: 'He was a bad man, wasn't he Ms F Catesby? He had a dirty mind' it was impossible to get a timeline from [the Applicant] as to her relationship with [the Respondent]; however, she reported that he would come to her unit and ‘want to shower with [her]’, at which she pulled a face and wrung her hand. She said that he would 'lay on top of her of her and do dirty things'. She also reported that he 'stole' from her, at which point she became tearful. When asked whether she knew where [the Respondent] had lived, whether she visited his home, whether she knew anything about his family and friends, she replied 'no’. …
b.When asked whether or not she and [the Respondent] had been married, she looked to Ms F Catesby to answer for her. … When asked if she and [the Respondent] had been involved in a service or ceremony with other people present and rings exchanged she replied that she had. [The Applicant] said that: 'he wanted me to sign a certificate' and ‘he wanted me to wear a ring'. She said that 'there was a lady that opened this folder… then he [the Respondent] showed me a ring and said will you marry me'. When asked if she understood that at that moment she was involved in a marriage ceremony with [the Respondent] she said 'no'.
c.In discussing marriage more generally, when asked how two people decide they want to get married [the Applicant] replied: 'First you go on a date and maybe have some non - alcoholic wine, maybe a stroll on the beach, not necessarily flowers, you might go on a plane'. Despite repeated prompting, there was no mention of love and commitment to the exclusion of others, there was no mention of residing together, having children or the division of assets. When asked what a wedding looks like, [the Applicant] said: 'you get to wear a princess dress and beautiful shoes'. …
Numerous psychological tests were conducted on the Applicant by Dr P who concludes at page 12 that the cognitive assessment of the Applicant revealed a significant and global cognitive impairment, with the Applicant's Full Scale Intelligence Quotient falling below 0.1 percentile. Specifically, Dr P concludes:
Whilst [the Applicant's] decision-making capacity was not assessed at the time of her marriage to [the Respondent], the neurological sequelae of her hypoxic birth injury is such that [Applicant's] cognition would have remained at a comparable level throughout her adult life. Therefore, inferences can at least be made as to what her decision – making capacity would have been at the time of the marriage. On interview, [the Applicant] alleged that she did not realise that she married [the Respondent] at the time of the marriage ceremony. It was evident that she held an overly simplistic and childlike notion of marriage. To her mind, a marriage ceremony involved dressing up like a princess; beyond that, her understanding of marriage was essentially non-– existent, and she had no understanding whatsoever of the legal ramifications of marriage.
To that end, in so far as inferences may be drawn, it is my opinion that [the Applicant] could not have had the cognitive capacity to consent to her marriage to [the Respondent] on … 2019.
Dr Q
Dr Q affirmed an affidavit on 23 August 2021. He is a general practitioner and has been the Applicant's GP since April 2005. He estimates consultations every one to two months. He confirms the Applicant's diagnoses and describes her intellectual disability as being 'profound and unchanging over the entire time I have known her'.
Dr Q describes the Applicant as ‘childlike in her affect'. He says that she lives in 'the moment' and has almost no capacity for planning or anticipating future events. He describes her as emotionally labile prone to dramatic outbursts, shouting, laughing, crying or sullen and silent, all within a matter of minutes. He describes her as 'frequently inappropriate and disinhibited'. He refers to 'impulsive spending'. Dr Q describes the Applicant as being sexually active at least from 2005. Dr Q refers to consultations in January and March 2019 in respect of the Applicant’s relationship with the Respondent referring to him as her 'new man'. Dr Q references the Respondent as:
[10]… appeared to be controlling and intrusive, at times insisting on coming in to [the Applicant’s] appointments. Much later after learning of the extent of his behaviour towards [the Applicant] and incidents such as the transport fares that [the Applicant] was unaware of paying for, it was difficult to see his behaviour as anything other than predatory and controlling. I never saw any evidence of a closeness, nor romance, nor indeed a comfortable companionship between [the Applicant] and [the Respondent].
Dr Q says that the Applicant never spoke to him about planning a marriage or advising of the marriage itself despite the frequency of their consultations. He says that the Applicant spoke, and continues to this day to speak, of her wedding as 'a fantasy future event'.
Dr Q has read the report of Dr P and accepts her findings as accurate and thorough.
At the first listing of this matter I had the enquired of the Applicant's solicitors as to whether the Applicant herself would be in Court at the hearing of the Application for the benefit of my observations of her and any understanding of the consequences which would flow on the granting of the application. However, Dr Q says:
[12]Were the Judge required to meet with [the Applicant] and speak with her directly I believe that this would impact on her in several ways. [The Applicant] would be highly stressed by meeting in an unfamiliar and imposing formal environment. She would most likely be physically and psychologically agitated and I doubt that she would be able to sit long enough in such an environment, nor mentally focus to the extent where she could be effectively or meaningfully interviewed. In the worst case scenario it is entirely possible that she could be stressed to the point of triggering a seizure. Possibly the best method to employ may be a video link where she could be supported in a more familiar environment with a family member such as her legal guardian Ms F Catesby in order to respond more effectively and safely to the Judges (sic) enquiries.
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.
I accept the conclusions of Dr P in her report of 1 March 2021 that the Applicant's neurological sequelae has remained at comparable levels throughout her adult life; that the Applicant held an overly simplistic and childlike notion of marriage; and that the Applicant could not have had the cognitive capacity to consent to her marriage on … 2019. I make these findings cognisant of there being no material before me specifically as to the Applicant's mental capacity on the day of … 2019, but note again that the Respondent has neither given nor adduced evidence to the contrary.
I also accept the evidence and observations by the lay witnesses Ms F Catesby and Ms O. They are the Applicant's sister and mother respectively. Their unchallenged evidence is of a high frequency and continuity of direct contact with the Applicant and both depose of their observations consistent with the professional diagnoses.
I accept the evidence of the practitioners as to the Applicant's lack of control and autonomy together with a desire for attention, company and approval from others, the evidence of the nature of the of the relationship between the Respondent as her driver and the Applicant as his client and the significant travel costs incurred together with the relatively short duration of the relationship are also relevant factors.
I place some weight on the evidence generally of Dr Q who has had a long-standing professional relationship with the Applicant and his view that the Applicant has virtually nil understanding of abstract concepts and is always emotionally labile with almost no capacity for planning or anticipating future events.
Taking all of the evidence, I am satisfied to the requisite standard of proof that the Applicant did not have the capacity to understand the nature and effect of the marriage to the Respondent at Suburb C on … 2019 and that the marriage be declared void and a nullity.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 14 October 2021
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