Hallas and Kefalos
[2012] FamCA 860
FAMILY COURT OF AUSTRALIA
| HALLAS & KEFALOS | [2012] FamCA 860 |
| FAMILY LAW – NULLITY – Whether consent obtained by duress – whether the wife entered into marriage due to pressure from her priest, husband, her relatives and members of her congregation and because of religious and cultural obligations obliging her to enter into the marriage – where duress at the time of the marriage ceremony is critical – where it was not accepted that that the wife was placed under undue pressure or that her will was overborne – found no evidence to establish duress – whether the wife lacked capacity to enter into the marriage – where the wife suffers from depression – where the medical evidence did not establish that that her depressive disorder deprived her of judgment or insight into whether she should or should not enter into a committed relationship with the husband or ultimately marry him – where the totality of the evidence did not establish that the pressure placed on the wife was of such gravity as to vitiate her consent to the marriage – Application dismissed. |
| Family Law Act 1975 (Cth) ss 48, 51 Evidence Act 1995 (Cth) s 140(2) Marriage Act 1961 (Cth) s 23B |
| Brown and Brown (1982) 60 FLR 212 In the Marriage of Teves III and Campomayar (1994) 18 Fam LR 844 Kokl and Kokl (1981) FLC 91-078 Re S (1980) FLC 90-820 |
| APPLICANT: | Ms Hallas |
| RESPONDENT: | Mr Kefalos |
| FILE NUMBER: | SYC | 8081 | of | 2010 |
| DATE DELIVERED: | 9 October 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 16 August 2012 |
REPRESENTATION
| FOR THE APPLICANT: | Ms Hallas in person |
| FOR THE RESPONDENT: | No appearance for or on behalf of the respondent |
Orders
That the wife’s application for a declaration of nullity of her marriage entered into on …2009 with the husband is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hallas & Kefalos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 8081 of 2010
| Ms Hallas |
Applicant
And
| Mr Kefalos |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by Ms Hallas (“the wife”) for a decree of nullity in relation to her marriage to Mr Kefalos (“the husband”). The marriage was solemnized in 2008 in Gymea. Although the husband consents to the application his consent is insufficient to ground the decree and it must be established that a ground for the relief sought has been established. As Lindenmayer J said in In the Marriage of Teves III and Campomayar (1994) 18 Fam LR 844, “…a nullity decree is not to be granted lightly. Moreover the grant of a decree of nullity is not discretionary. If the facts establish the marriage is invalid, relief must issue”.
In her Application filed 4 April 2012, the wife said that her consent to the marriage was not a real consent because it was obtained by duress and she lacked capacity to enter into marriage. If either of these matters is established she is entitled to a decree of nullity.
Background
The applicant was born in 1971 in Australia
The respondent was born in 1967, also in Australia.
Both parties are of European heritage.
The wife was raised as an Orthodox Christian.
The husband’s first wife passed away in September 2007 leaving him with two children: B currently aged ten and C who is twelve.
The wife ceased paid work in mid 2007, following which she was diagnosed with clinical depression attributed to workplace bullying. She is currently in receipt of disability insurance. She has not recommenced paid employment.
The wife was introduced to the husband by her cousin at her church’s annual dance in August 2008.
The parties commenced cohabitation on 17 December 2008.
The parties married in a Greek Orthodox ceremony in 2009. The wife had been previously divorced and the husband was a widower.
The parties separated on a final basis in 2009. As a result of an ugly incident that day the wife was charged with common assault of the husband and an interim AVO was issued against her. The same day she cut her wrists following which she was briefly admitted to hospital as an involuntary patient. Upon review by a hospital psychiatrist the involuntary admission ceased and the wife was discharged. The point being there was no medical basis for the wife to be held as an involuntary patient. In the context of the assault and AVO proceedings the wife obtained a number of psychiatric reports which are in evidence. Based on this evidence pursuant to the Mental Health (Forensic Provisions) Act 1990 the assault charge was dismissed.
The parties have no children together.
Final property settlement orders were made by consent on 24 December 2010.
The evidence
The applicant filed the following applications and affidavits:
· her Application for Final Orders Validity/Nullity filed 4 April 2012;
· her affidavits filed 4 April 2012 and 10 August 2012;
· Dr G filed 10 August 2012;
· Ms E filed 10 August 2012; and
· Ms N filed 10 August 2012.
The respondent consents to the application and did not file any material of his own.
Statutory Provisions
Section 4 of the Family Law Act 1975 (Cth) as amended (“the Act”) under “divorce or validity of marriage proceedings” relevantly provides that: “proceedings between the parties to a marriage, or by the parties to a marriage, for: ... (ii) a decree of nullity of marriage” is a matrimonial cause.
Divorce and nullity of marriage is set out in s 48 and s 51 of the Act.
48 Divorce
(1)An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably.
(2)Subject to subsection (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and the divorce order shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.
(3)A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.
51 Nullity of marriage
An application under this Act for a decree of nullity of marriage shall be based on the ground that the marriage is void
The grounds on which a marriage is void are set out in s 23 B of the Marriage Act 1961 (Cth):
23B 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 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.
(2) Marriages of parties within a prohibited relationship are marriages:
(a) between a person and an ancestor or descendant of the person; or
(b)between a brother and a sister (whether of the whole blood or the half‑blood).
(3) Any relationship specified in subsection (2) includes a relationship traced through, or to, a person who is or was an adopted child, and, for that purpose, the relationship between an adopted child and the adoptive parent, or each of the adoptive parents, of the child shall be deemed to be or to have been the natural relationship of child and parent.
(4) Nothing in subsection (3) makes it lawful for a person to marry a person whom the first‑mentioned person could not lawfully have married if that subsection had not been enacted.
(5) For the purposes of this section:
(a) a person who has at any time been adopted by another person shall be deemed to remain the adopted child of that other person notwithstanding that any order by which the adoption was effected has been annulled, cancelled or discharged or that the adoption has for any other reason ceased to be effective; and
(b) a person who has been adopted on more than one occasion shall be deemed to be the adopted child of each person by whom the first‑mentioned person has been adopted.
(6) For the purposes of this section:
adopted, in relation to a child, means adopted under the law of any place (whether in or out of Australia) relating to the adoption of children.
ancestor, in relation to a person, means any person from whom the first‑mentioned person is descended including a parent of the first‑mentioned person.
The grounds relied upon by the wife are s 23B(1)(d)(ii), namely that her consent was obtained by duress and probably also s 23B (1)(d)(iii).
Duress and capacity
In the early cases, duress as a ground to render a marriage a nullity was described in the case law to mean “the compulsion of a person by physical or mental harm”. Kokl and Kokl (1981) FLC 91-078.
In Re S (1980) FLC 90-120, Watson SJ held that fear and terror are not prerequisites required to establish duress. His Honour said:
The emphasis on terror or fear in some of the judgments seems unnecessarily limiting. A sense of mental oppression can be generated by causes other than fear or terror. If there are circumstances which taken together lead to the conclusion that because of oppression a particular person has not exercised a voluntary consent to marriage that consent is vitiated by duress and is not real consent. This is so howsoever the oppression arises and irrespective of the motivation or propriety of any person solely or partially responsible for the oppression.
Accordingly, the Court would need to satisfy itself that the consent was not a voluntary consent. His Honour stated:
It is the effect of the oppression on his mind that should be the operative factor, not the form of such oppression.
Lindenmayer J in Teves III and Campomayor explained that it is duress at the time of the marriage ceremony that is crucial. In this respect the onus lies with the applicant to show that at the time he or she gave consent, some overbearing force operated. The factors which comprise overbearing force can relate to events which occurred prior to the marriage ceremony. His Honour said:
The cases that I have already made reference to make it clear that it is duress at the time of the marriage ceremony that is critical. Clearly this can be induced by events prior to it, but in the end it is for the applicant to show that at the time she gave her consent at the ceremony, some overbearing force was operating. In this, evidence about the ceremony and events occurring during and immediately before it or after it can be extremely important.
The test of duress is not purely subjective but includes objective elements.
In relation to s 23B(1)(d)(iii), there is only one substantial requirement, namely that the parties to the marriage appreciate its general effect. Brown and Brown (1982) 60 FLR 212.
The standard of proof, having regard to the gravity of the application is determined having regard to s 140(2) of the Evidence Act 1995. Assertions, conclusions, indefinite testimony and indirect inferences are thus insufficient to ground a finding of fact.
Application of the law to the facts
In her affidavit sworn on 10 August 2012 the wife made assertions of duress by her priest, the husband and her relatives. She established that she has a life long connection to her church and that the counsel and guidance of her priests and members of her congregation were very important to her.
The wife explained that she was reluctant to enter into a relationship with a recently widowed partner and was herself anxious about whether she was ready to form a committed personal relationship with the husband or anybody. As to this, members of her family and church encouraged her to do so. When she expressed doubt about whether she should commence a relationship with the husband it would seem that to a person, those who knew them both advised her that he was a good person and the marriage would be good for her. Having decided that she would live with the husband, thereafter when she raised her doubts with these same people, all encouraged her to accept his offer of marriage. No threats to discontinue friendships or membership of her church were made if she rejected their counsel to marry the husband.
In her affidavit filed 10 August 2012 the wife gave detailed evidence about when she met the husband and his wooing her. Her cousin and her aunt and uncle were instrumental in the parties meeting and encouraged the wife’s favourable response to the husband’s overtures.
Very early in the relationship the wife was anxious about what she views as the husband’s obsession with his deceased wife. She was particularly concerned about the presence of his deceased wife’s ashes and her photographs in his house. The wife sought her priest’s intervention and understood that he would encourage the husband to bury his wife’s ashes. This occurred and resolved a significant concern for her.
Before the parties commenced cohabitation, the priest asked to see the wife. He informed her that “… you need to start being physical together and having sex with him. We know you are not a virgin [the wife] so that’s just ridiculous … This man is used to being with a woman and this is the only way to move forward with him”. It is the wife’s evidence that she was lost for words and very hurt.
According to the wife “[t]here were many incidents such as what I have described above and slowly I began to feel very anxious, more depressed and I felt as though I was drowning by the pressure I was surrounded by from [the husband], [the priest], other parishioners and my relatives”. In relation to her concerns about the husband, her priest said to her on many occasions “[a]s a Christian we have to take a good look at ourselves. [The wife] you are far from perfect so how can you expect [the husband] to be perfect”.
It would appear that by the time they commenced cohabitation the husband spoke every day about his deceased wife. He told her that his first marriage was perfect and that he once again wanted to “reach for the stars with someone else”.
In December 2008, the wife spoke to her priest about the husband’s statement “my first wife was better in bed than you”. Essentially, the priest explained that the husband would “slowly start to let go of his first wife and you won’t have to listen to comments like that” and that it was her job as a Christian to be patient with him.
According to the wife, during 2009, she felt depressed by comments made by the husband’s deceased wife’s friends and family to the effect that they did not want to replace the friendship they had had with her with a friendship with the wife. In her affidavit, the wife gave evidence about conversations with various friends and family who mourned the husband’s late wife and, as well as her friends, spoke favourably about the husband’s attributes. According to the wife, the effect of these remarks was “I felt that I would never be happy with this man and people will always have a bias [sic] opinion towards [the husband] as he had lost his first wife” and “I felt like I was being controlled and made to feel like I was a nothing”.
In October 2009, two months before the wedding, the wife left the husband and stayed for a week with her friend, Ms H. At the end of the week she received a text from the husband which asked “[a]re you okay”. She responded that she was and told him that the following day she would collect clothes from their rented house. This she did and discovered a card from B which read “where are you [the wife]? We miss you and don’t know where you are. We hope that you come home soon. Love [A]”.
A few days later the husband sent the wife an email in which he explained “…that things would change, he would sell [his former family home] and asked me to come home”.
Again the wife spoke to her priest who encouraged her to return to the husband. It is the wife’s evidence that the priest said “[the wife] you are a very sick girl and [the husband] is a doctor, be smart and go back to him”. The wife said:
I returned to the house in which I shared with [the husband] and the children but I felt extremely depressed, stressed, unhappy and very pressured. I didn’t feel as though I was able to make me [sic] own decisions any more and if I had continued to separate from [the husband], I would be crucified by [the priest], my family and the wider community that felt sorry for this man that had lost his wife.
In the context of the workplace bullying, during 2009, the wife saw a psychologist. Her psychologist encouraged her to marry the husband.
During November 2009, the parties argued in relation to which the wife said “[t]here was one occasion where [the husband] pushed me in front of the children and swore at me. On another occasion he threw me out of the house and broke my finger”. After this latter incident, the wife spoke with the husband’s brother and told him she wished to leave the relationship. He did not support her decision and she views their discussion as him being quite aggressive.
The wife returned and that same month there was an altercation during which she said the husband threatened to smash her puppy on the ground.
The wife says she felt in a state of panic in the lead up to the wedding and, essentially, no matter where she turned, family, friends and the priest encouraged her to go through with the wedding.
The evidence given by the wife in her affidavit filed 10 August 2012, particularly pars 51 – 55 makes it plain that she understood the nature and effect of the marriage ceremony. To the extent that her claim for relief is reliant on s 23B(d)(iii) it will be dismissed.
The remaining issue, therefore, is whether the wife was subjected to duress. Although there is no doubt that the wife was encouraged and felt pressured to marry the husband, as the cases discussed above establish, the test of duress requires that the pressure placed upon her was of such gravity as to vitiate her consent.
The medical evidence adduced by the wife is particularly significant.
In late October 2007, the wife was diagnosed by her treating GP as suffering an adjustment disorder. This diagnosis was made in the context of what she described as a collapse at work in mid June 2007. In the context of a workplace injury claim, in late December 2007, the wife attended Dr P, consultant psychiatrist. In his report dated 11 December 2007, forming part of Annexure “A” to the wife’s affidavit filed 4 April 2012, Dr P diagnosed the wife as suffering “an adjustment disorder with anxious and depressed” caused by “stressors experienced in the workplace”. He expressed the opinion that she should recover fully and continue antidepressant medication to which she had responded favourably. In Dr P’s opinion, the wife’s condition was a “temporary disability only … She is currently totally disabled for work”.
Dr P examined the wife again in mid 2008. In his second report dated 24 June 2008, also forming part of Annexure “A” to the wife’s affidavit filed 4 April 2012, Dr P said “[h]er condition has since been complicated by the more severe disorder of a Major Depressive Episode”. He explained that this was associated with anxiety symptoms and increasing paranoid ideation. He opined that she required a more aggressive dose of Cipramil (or change to another antidepressant agent if she could not tolerate this), management by a consultant treating psychiatrist and, viewed favourably, her general practitioner’s advice that she be placed on a mental health plan. Dr P was clear that the wife was not malingering and there was no suggestion that she had a factitious disorder. He explained:
The usual course of a Major Depressive Episode is that it should remit with time and treatment. The time to remission can be significantly decreased by aggressive pharmacological treatment. It is impossible to say precisely when the condition will remit in individual cases. However, after the initiation of aggressive psychopharmacological management, it would be likely that the condition would significantly remit within a several month period.
It was his opinion that the wife was totally disabled for work at that time, which disability would cease when her condition “remits significantly”.
Dr P’s second report corroborates her evidence that when she met the husband she was depressed and temporarily unfit for employment. In the history she gave Dr P, she described a lonely existence in which she was reliant upon family and church for social contact and personal guidance.
It would appear that following Dr P’s recommendation the wife commenced to consult a psychologist, whose support for the wife’ marriage to the husband has already been mentioned.
In a report fromMr M, psychologist dated 17 November 2009, and also forming part of Annexure “A” to her affidavit filed 4 April 2012, it is apparent that the wife regarded herself as having developed a close rapport with her psychologist with whom Mr M said the wife should continue psychological therapy. The point being that throughout 2009 the wife had a constructive therapeutic relationship with a counsellor. Indeed this relationship continued until February 2010.
It would seem that consistent with Dr P’s advice, the dosage of the wife’s antidepressant medication was increased during 2009 to 40 mg per day. There would seem to be little doubt that as time passed it became apparent that “she has experienced significant loss of amenities of pleasure of life” (Report, Dr S dated 10 December 2010 - Annexure “A” to the wife’s affidavit filed 4 April 2012).
It is in Dr S’s report that there is reference by the wife to the marriage. Dr S reports that the wife told him:
Prior to the work related adverse experience [the wife] stated that she was sociable and related well to others. On the advice of her counsellor she married a physician in 2009. The marriage dissolved however after a period of 17 days. She reported that the marital dissolution was due to her impaired emotional state. She could not cope in the marriage and realised that she made a wrong decision.
Dr S explained that he viewed the wife has having moderate whole person impairment with difficulty focusing and following complex instructions.
Dr A, clinical psychologist, saw the wife in February 2010 in relation to the assault charge. To Dr A, the wife described a 14 month dysfunctional relationship and marriage to the husband. To Dr A the wife explained that:
The core of [the wife’s] relationship dissatisfaction was with her husband’s alleged continual pathological obsession with his [deceased] wife … He allegedly kept her ashes on the mantelpiece, and attempted to set up a shrine for her in a room with her clothes and personal objects on display. [The wife] found it intolerable to live in the “shadow of death”, as she experienced it and described that her relationship was secondary to her husband’s obsession with [his former wife]. She felt humiliated by this attitude and alleged that her husband told her that [his former wife] was better in bed than her. She pressured her husband to get professional help and he was reputedly given feedback that he had “pathological grieving” and that he should bury his ex wife, so he could move on in his life.
(Report, Dr A dated 14 February 2010 - Annexure “C” to the wife’s affidavit filed 4 April 2012)
Notably, in the detailed history which the wife gave Dr A, she did not suggest that she misunderstood the nature of her relationship with the husband or the marriage ceremony. Rather, she described arguments (about which she spoke at the time to Ms N) which eventually “eroded her trust in the husband. She felt further undermined by his relatives and friends who allegedly did not accept her, no matter how hard she tried to make the marriage work”. Dr A observed that the there was no evidence of thought disorder or any other psychotic phenomenon. He observed that the wife appeared to be of above average intelligence and that her judgment and insight were intact. In this regard his evidence is generally consistent with the thrust of the medical reports discussed above.
In contrast to this evidence, the wife also relied upon the evidence of Ms E who is a clinical psychologist. The wife consulted Ms E after she separated from the husband along with a GP from the practice she attended throughout 2009. Both express the opinion that the wife lacked the mental capacity to consent to the marriage. Ms E’s opinion is qualified by the words “…especially if there were any duress”. Similar comments are made by Dr G in his affidavit filed 10 August 2012. These reports are brief and lack the evidentiary foundation for the expression of opinion contained in the other experts evidence discussed above. Indeed these latter reports provide such limited evidence it is questionable whether the opinions expressed about capacity should be admitted into evidence. However, rather than turn this into a discourse about opinion evidence it is sufficient to place greater weight on the other expert evidence and little weight on the evidence given by Ms E and Dr G.
Conclusion
The wife established that during 2008/2009 she suffered a major depressive illness for which she received appropriate medical and therapeutic intervention. Although this intervention was insufficient to have this temporary disorder alleviated to the extent that she was able to resume paid employment, she was able to function in most other respects. Relevantly, the wife was able to establish new and close relationships with the husband’s children and went to considerable effort to establish close relationships with the husband’s family, as well as his deceased wife’s friends.
Although she views herself as submissive in the relationship, it is notable that she was charged with common assault and not him. Also, that she was able to sufficiently assert herself to require him to agree to sell the home he and his children had shared with his former wife and insist that he bury her ashes. These were matters of great significance to both and it is significant that on these important matters the wife’s will prevailed.
Although it is accepted that the wife carefully regarded the opinions of her priest and family in favour of her relationship with the husband and their marriage, it is not accepted that she was placed under undue pressure or that her will was overborne. Rather, she was encouraged to view more optimistically the benefits of marriage to the husband and to judge him less critically than was her want.
The medical evidence does not establish that her depressive disorder deprived her of judgment or insight into whether she should or should not enter a committed relationship with the husband or ultimately marry him. Of course, by the time the wife married the husband she had lived with him for approximately one year and, while she had many doubts about whether the marriage was in her interests, she was not under such pressure that her capacity to commit to the marriage ceremony was overborne.
Considerable weight is placed upon Dr S’s report and his evidence that “[s]he could not cope in the marriage and realised that she had made the wrong decision”. Also, to the wife’s discussion with Dr A that she “… found it intolerable to live in the ‘shadow of death’”. Whilst there is no doubt that the wife looks back with unhappiness on this period of her life, and that through much of the period of cohabitation she was unhappy, the totality of the evidence does not establish that the pressure placed upon her was of such gravity as to vitiate her consent to the marriage.
The wife’s application will accordingly be dismissed.
I certify that the preceding sixty four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 9 October 2012.
Associate:
Date: 9 October 2012
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