Kernez and Kernez

[2009] FamCA 640

FAMILY COURT OF AUSTRALIA

KERNEZ & KERNEZ [2009] FamCA 640

FAMILY LAW – NULLITY – Whether consent obtained by fraud

Family Law Act 1975 (Cth) ss 31,39
Marriage Act 1961 ss23B, 113
New South Wales Guardianship Act

Briginshaw v Briginshaw (1938) 60 CLR 336

APPLICANT: Mr Kernez

RESPONDENT: Ms Kernez

FILE NUMBER: SYC 6133 of 2007

DATE DELIVERED: 22 July 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATES: 25 - 26 February 2009;
9 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P Cook

SOLICITOR FOR THE APPLICANT: Clinch Long Letherbarrow

COUNSEL FOR THE RESPONDENT: Mr J Dupree

SOLICITOR FOR THE RESPONDENT: Russo & Partners

Orders

1. Pursuant to s 23B of The Marriage Act 1961, as amended, it is hereby declared that the marriage solemnised between Ms Kernez, born … on … October 1932 in …, Hungary, and S Kernez, born … on … August 1923 in …, Hungary, on … November 2006 and registered on 18 Decemger 2006 with Marriage Certificate registration number … is void. 

2. The said Ms Kernez shall within 7 days inform the Registrar of Births, Deaths & Marriages for the State of New South Wales of Order 1. herein by providing the said Registrar with a copy of these orders.

3. The applicant, Mr Kernez, shall within 7 days inform the said Registrar of Order 1. herein by providing him with a copy of these orders.

4. The respondent, Ms Kernez, shall within 7 days deliver to the Registrar, Births, Deaths & Marriages for the State of New South Wales, all certificates of marriage issued to her and/or the said S Kernez, deceased, issued in respect of the marriage referred to in Order 1. herein, and all copies thereof in her possession or control.

5. That the Registry Manager, Sydney Registry, Family Court of Australia forthwith forward a copy of these Orders together with a copy of the Judgment hereinto to the Registrar of Marriage Celebrants appointed pursuant to s 39 of the Marriage Act, 1961, as amended. 

6. By consent, and subject to the payment by the respondent to the applicant of the sum of $50,000.00 from the monies received or to be received by her from the estate of the late S Kernez referred to in the abovementioned marriage certificate as SA Kernez and referred to in paragraph 4(a)(iv) of the Deed of Settlement dated 9 July 2009 between the applicant, the respondent and Mr S Kernez born … September 1957, being part of Exhibit “X”, there shall be no order as to costs.

7. By consent, all previously made orders as to costs, including any reservation of costs, are hereby vacated.

8. By consent, each registrar of the Family Court of Australia, Sydney Registry is hereby appointed pursuant to s 106A to execute documents and do all other things necessary to give effect to the abovementioned Deed of Settlement dated 9 July 2009 in the event that a party to the said deed on being requested in writing to do those things, refuses to do so within a reasonable time. 

IT IS NOTED that publication of this judgment under the pseudonym Kernez & Kernez is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6133 of 2007

MR KERNEZ

Applicant

And

MS KERNEZ

Respondent

REASONS FOR JUDGMENT

1. These proceedings have been brought by the applicant, Mr Kernez.  His mother, Mrs Kernez, is the named respondent.  They are for a declaration that the respondent’s marriage to Mr S Kernez, his father, who is called SA Kernez in the relevant marriage certificate, which purported to be solemnised on … November 2006, is void or alternatively for a decree of nullity of that supposed marriage.  S Kernez died in March 2008.  The proceedings commenced before he died.  He has never been a party to them.  He died before a case guardian could be appointed for him.  Both the applicant and respondent had applied for such appointment but could not agree on the identity of the person who should be appointed. 

2. The proceedings followed an unusual course which ought to be explained so that it can be known what evidence has been relied on and why. 

3. Originally the proceedings were defended.  The applicant and his witnesses, Dr K and Dr F, provided affidavits and were cross examined.  The respondent and some of her witnesses were required for cross examination. 

4. The proceedings became part heard while the respondent was being cross examined.  None of her witnesses had yet been cross examined.  She had also tendered evidence which had become exhibits. 

5. When the hearing was resumed, the respondent, through her counsel, informed the Court that she did not wish to continue to actively oppose the application.  She sought leave to withdraw her response.  Leave was granted.  As between herself and her two sons, one of whom is the applicant, they had settled all their disputes except one; that over the validity of the marriage at the heart of the proceedings.  She did not wish to consent to any orders relating to validity of the marriage or to any orders arising from any invalidity.

6. Accordingly I have acted on the evidence of the applicant, Dr K and Dr F and have not relied on any evidence put before the Court by or on behalf of the respondent.

7. The respondent is about 76 years old, having been born in Hungary in 1932.  The deceased was also born in Hungary in 1923, so was about 84 years old when he died.  They had married in Hungary on … November 1948 and migrated to Australia in 1957.  They were divorced here.  The decree became absolute on 10 November 1984.  They had two surviving children by then, both boys.  One of them is the applicant.  The other is named after his father.

8. It is the applicant’s case that his father did not have the capacity to marry on … November 2006.  He says he has commenced these proceedings for two reasons.  One is financial, because his father’s mental status will affect the actual distribution of his estate.  The other he says is his wish to put right what he claims was the violation of his father’s rights by the respondent in entering into the second marriage.  Both reasons are irrelevant except that each gives him sufficient interest to entitle him to maintain the action.

9. Section 23B(d)(iii) of the Marriage Act 1961, as amended, provides that a marriage is void where the consent of either of the parties to it is not a real consent because that party is mentally incapable of understanding the nature and effect of the marriage ceremony.

10. The Family Law Act includes in the definition of “matrimonial cause” in section 4(1) proceedings for a declaration as to the validity of a marriage by decree or otherwise. The Family Court of Australia has jurisdiction based on s 31 of the Family Law Act, in matters arising under that Act when proceedings have been instituted under that Act.  It also has jurisdiction in matters arising under the Marriage Act where proceedings have been instituted under that Act. 

11. Here the proceedings for the declaration that the marriage is void are based on s 23B of the Marriage Act.  The issue of voidness, therefore, arises under the Marriage Act.  As, by s 113, the Court is specifically empowered to make a declaration in proceedings for a declaration as to the validity of a marriage, there is little doubt that I am able, if the facts are established, to make a declaration in these proceedings that the marriage between the respondent and the deceased which purportedly took place on … November 2006 is void despite one of the parties to the marriage having already died without ever having become a party to these proceedings which commenced before he died.  The definition of matrimonial cause clearly includes proceedings for a declaration about validity of a marriage although only one or neither party to the marriage is a party to the proceedings. 

12. The Family Law Act provides, by s 39(1)(a) and (4)(b), the Family Court of Australia with jurisdiction to hear proceedings in any matrimonial cause except divorce proceedings if any party to the proceedings is a citizen of, ordinary resident in or present in Australia at the relevant date which is the date the application was filed. Here the initiating application, filed 29 August 2007, sought the declaration that the marriage is void under s 23B(1)(d)(iii). At the time, the parties were both citizens of and ordinarily resident in Australia and were both present in Australia. The application itself declares and affirms that to be the situation.

13. The applicant needs to establish on the balance of probabilities that when the marriage ceremony and associated formalities were undertaken on … November 2006, the deceased did not understand their nature and effect; that is, he did not know he was in the process of marrying the respondent and/or could not appreciate the implications of doing so because he was so mentally disabled that he was prevented from having the knowledge or ability to appreciate these matters. 

14. The deceased commenced a relationship with a Mrs H in about 1986.  This relationship continued until about 1998.  In 1998 the deceased was said to be incapable of managing his affairs and a management order under the New South Wales Guardianship Act was made on 17 August.  The findings and orders of the relevant Tribunal went further than merely finding that he could not manage his financial affairs or property.  He was found to be unable to manage himself sufficiently to cope with ordinary living.  The respondent was marginally involved in the deceased’s life at this time and had taken an active part in the guardianship proceedings, having been named as an interested party.  The applicant now before the Court was also the applicant in the guardianship proceedings.  The Tribunal appointed the Public Guardian for 12 months to make decisions on the deceased’s accommodation, health care, medical treatment and the like.  His property and financial affairs were committed to the management of the Protective Commissioner.  The respondent supported the appointment of a guardian, but asked that she be appointed. 

15. In a neuropsychological assessment of the deceased by Dr N, which occurred on 11 November 1996, he was found to have cognitive impairments consistent with the evolution of dementia.  His family, presumably including both parties because there is no mention of any dissent, had noticed his memory deterioration over the previous year or two.  Dr N saw him a year later and assessed him to be in need of guardianship.  A manager of a dementia day care centre which had provided day care for the deceased since October 1997 made a report in August 1998 that his condition had noticeably deteriorated since he had been attending the centre.  She said he had “poor short term memory recall, reduced concentration span and impaired ability to make decisions and choices about matters which affect him”.  Very significantly, and I think very astutely, the reporter commented that the deceased was easily persuaded by and used the words of those who had influence over him.  A manager of an organisation which provided home support for dementia sufferers, said in her report dated August 1998, that he was confused and unable to make even trivial decisions. 

16. The Tribunal said, in its reasons for decision, that it was satisfied that the deceased was incapable of making decisions about matters affecting him.

17. By the time this decision was made, Mrs H, who had been helping him, had found it increasingly difficult to cope with him.  She ceased her involvement with him soon afterwards.  The respondent had been helping him at times but over the years since the divorce had, at most, only intermittent contact with him.  However, after the application for guardianship was lodged, she became much more involved in his care, taking him to her home occasionally.  The Tribunal found that the respondent “would like Mr [S Kernez] to reside full time with her and to remarry”, presumably her. 

18. Earlier, in June 1998, Mrs H had by chance overheard the respondent while in the company of the deceased, speaking to a man and providing details to him.  The man told her that the earliest date he could marry them would be 27 July 1998.  The man was Mr W, a marriage celebrant, who was arranging to marry them on 28 January 1999.  The deceased had in April 1997, purported to change his will in favour of the respondent.  The respondent had taken him to a solicitor for that purpose.  He had previously purported to make a will on 14 March 1996 in which he left his whole estate to the applicant and specifically excluded his other son and the respondent from inheriting anything from him.  His reasons were included in the will.  The applicant first heard about the new will from Mrs H in 1998 when she advised the applicant that the deceased had changed his earlier will.  The changed will leaves his estate to the applicant and the respondent equally.  It is probably only a little more vulnerable to challenge than the earlier one. 

19. By a letter of 19 January 1989 from the applicant’s solicitor to the respondent, the applicant warned the respondent that he would challenge both the validity of any marriage and the later will.  The arrangements for the marriage did not go ahead.

20. The deceased became a permanent resident at a nursing home in late 1999.  He had had a subdural cerebral haemorrhage in January 1999 and a post surgical extradural haematoma in late January. 

21. According to the applicant, whose evidence I accept, his father lost the ability to write in about 1999.  At about that time he needed to be assisted with toileting.  By 2000 he could no longer construct a phrase or sentence and within a short time he had ceased to be able to communicate in any meaningful way by the use of Hungarian, English or other means.  From 2002 he could not feed himself and by 2005 did not recognise the applicant, his grandchildren or anyone else, including the respondent, but he did respond positively to anyone who helped him or was kind to him.  As there is no evidence to indicate he improved after 2005, even momentarily, in his ability to recognise people including the respondent, this finding alone is sufficient to warrant the declaration the applicant seeks. 

22. After he became a nursing home resident the respondent sought to take the deceased home for weekends.  Much conflict then arose between the respondent on the one hand and the applicant and others, including the Public Guardian, who were responsible for the deceased’s care.  The conflict was over the care the respondent would provide.  She had an unrealistic view of the deceased’s condition and needs and was inclined to ignore the medical and related advice of experts, thinking she knew best. Guardianship orders were continued in 1999, 2001, 2002, 2004 and 2005.  The deceased remained subject to guardianship and protective orders for the whole time between August 1998 and his death.

23. In about Easter 2007 the applicant first learnt of the marriage ceremony which had taken place between the respondent and the deceased.  He was told by the Public Guardian who had learnt of it only a little earlier. 

24. When the applicant made inquiries he discovered that nobody at the nursing home where the deceased lived had previously known of it.  Nor had his brother, the deceased’s guardian, his financial manager or anyone else who had been initially involved in the deceased’s life apart from the respondent.  The respondent had kept the arrangements and the facts a secret. 

25. One must ask why she did so.  The obvious answer is that she was attempting to stop anyone preventing the marriage from taking place or from seeking to invalidate it.  That she was concerned to do this suggests she knew that there was a good chance that they would be successful because the deceased was in no mental state to enter into a valid marriage.  After all, as early as 1999, a solicitor’s letter was sufficient to disrupt her plans and in 1998 she had supported guardianship and management orders.  She had good reason to be apprehensive. She was in a position where she must or should have known what his condition was really like.  That she tried to keep the marriage a secret indicates it is not merely a case of not admitting it to herself, it is a case of wishing to ignore and suppress what she knew for her own reasons. 

26. In January 2006 she had sought to review the most recent guardianship decision.  It was for the deceased to continue to live full time and permanently at a nursing home.  On review, the decision was upheld.  Paradoxically, the respondent did not seek that he no longer live in such care, she accepted that he needed to live in a nursing home.  She wanted to move him to a Hungarian community nursing home.  She said it was culturally more appropriate.  The move was opposed by the medical experts who were consulted.  They were of the view that his dementia was so advanced the language spoken and cultural allegiances of those caring for him were irrelevant because he could not understand any language or enough to appreciate cultural distinctions.  A speech pathologist was of the view that the only sounds the deceased made, which were constantly repeated grunts, had no meaning despite the respondent claiming that she could understand them.  The Tribunal’s written decision was no doubt sent to the respondent. 

27. Drs K and F, the medical practitioners who had had the most involvement with the deceased over the years since 1996, gave evidence in the 2006 proceedings in support of continuing the existing regime. Both are of Hungarian background and can speak that language. 

28. In Dr K’s case, she says her comprehension of Hungarian is better than her ability to speak it.  She impressed me as an objective and honest witness whose evidence should be accepted.  She is a specialist physician of considerable experience. She specialises in geriatrics and gerontology and is a member of the association which qualifies her to specialise in these aspects of medicine.  She first saw the deceased in March 2000 and made a report dated 14 April 2000 for the Office of the Public Guardian.  It had engaged her.  She noted that the deceased had been unable to complete a sentence and would attempt to express an idea without succeeding because he would become distracted.  He could not name a pen or telephone or say what they were used for but could name some objects.  He did not know the date of his birth, thought his parents were still alive and living with him along with his grandparents.  He thought he had had three sons and three daughters.  He actually had had two sons and one daughter.  He was mistaken about the names of one of the sons.  He thought he, the deceased, was still married but was mistaken about his wife’s first name.  He thought he lived in his own home and that his wife lived in the village in Hungary where he and the respondent had lived before they migrated.  Dr K found the deceased to be “severely impaired with dysphasia, agnosia, apraxia and confabulation.  She said his behaviour was “disturbed”. 

29. Dr K again saw the deceased in the company of the respondent in June 2000.  The respondent had requested the consultation because she wanted to demonstrate to Dr K that the deceased was more capable than the April report had indicated.  Her findings were unchanged from earlier.  Any apparent improvement was found by Dr K to be the result of rehearsals with the respondent. 

30. Dr K next saw the deceased on 8 February 2008.  This was not long before he died.  This time the consultation was at the request of the applicant.  The deceased had declined in ability in a manner which is consistent with a “slowly progressing dementing illness”.  Dr K reported that she thought it “extremely unlikely” for the deceased to have even had “a brief period of lucidity in November 2006” as his dementia would have been too advanced.  She said that by 2000 he was already “incompetent to make any legal or lifestyle decisions” and that he did not have “the judgment, insight or capacity to make a decision to marry” or the “ability to comprehend the nature, significance and long-term consequence of the decision to marry”.  She found it difficult “to conceive how he would have been even a passive participant in a proper marriage ceremony” by 2000 when she had seen him.  In her affidavit she said that “it is extremely unlikely that Mr [S Kernez] had the ability to give informed consent to the marriage” and it is equally  unlikely that he “had the ability to appreciate and understand the real effect of the marriage ceremony” and “the ability to understand the responsibilities of the marriage that he was undertaking”.  She made it herself clear in her evidence that people suffering from the dementia which afflicted the deceased do not improve and therefore, that throughout the course of the deceased’s illness he had suffered a progressive decline in mental capacity.

1. Dr F is a GP with extensive experience in looking after residents of aged care facilities.  He has a post graduate degree in geriatrics from the University of NSW and is a member of the Australian Society of Geriatric Medicine.  He took over the deceased’s medical care in 2004.  He speaks Hungarian.  He diagnosed him with advanced Alzheimer’s dementia.  Subsequently he noted that his cognitive impairment continued to get worse.  He expressed amazement that a wedding had taken place in November 2006.  He had seen the deceased in consultation on 7 October and 11 November 2006 and said in a report to the applicant’s solicitor he did not have the “slightest doubt” that the deceased, on … November 2006 or from the date of his first involvement in 2004, did not have:-

   a)any understanding of the concept of the marriage ceremony;

   b)any understanding of the consequences of a marriage ceremony;

   c)any understanding of participation in a marriage ceremony; or

   d)intention to marry the respondent. 

2. He regards the possibility that the deceased had a brief period of lucidity at the relevant time as “totally fanciful”.  I regard him as a credible witness who felt he was justified in reaching the quite stark conclusions he reached.  There is no reason not to accept his evidence. 

3. The evidence in these proceedings is all in one direction as well as being convincing and compelling.  There is no substantial evidence to the contrary.  It is that the purported marriage between the respondent and the deceased which took place on … November 2006 is void because the consent of the deceased could not be given.  I find that it was not actually given.  If in some way it seemed to be given, it was not a real consent because the deceased was mentally incapable of understanding the nature and effect of the marriage ceremony.  He was so incapable, generally, that I am satisfied he probably did not know what he was doing and why he was present at the ceremony.  Nor did he understand any of the matters which were attended to prior to the ceremony or at the ceremony pertaining to the supposed marriage or his giving of consent to it. 

4. The supposed marriage was, I also find, probably obtained by fraud, either because the marriage celebrant knew the deceased was incapable of giving his consent or knowing what he was actually doing or because the respondent tricked the celebrant, despite what must have been the deceased’s obvious incapacity, into believing he understood much more than he did, could convey his consent to marriage and had actually conveyed it.  The probability is that those involved with the arrangements for the so-called marriage, including the celebrant and the respondent, preferred to overlook the legalities because they believed marriage was in the best interests of the deceased and the respondent and that the marriage is what he would have wished had he been capable of formulating a wish about which he understood the consequences of it coming to fruition.

5. In reaching the above conclusions I have borne in mind the serious consequences of a factual finding for or against avoidance a marriage and applied  Briginshaw v Briginshaw (1938) 60 CLR 336 and, in particular, what Latham CJ said at p 343-4 “The standard of proof … will naturally vary in accordance with the seriousness or importance of the issue”.

6. I shall make a declaration that the marriage is void.  I shall also order that the respondent return the original and any copy of the marriage certificate she possesses to the NSW Registrar of Births, Deaths & Marriages at the same time as she notifies him of the orders I shall make.  The notification is something she should do, so I shall order it. 

7. The conduct of the marriage celebrant, Ms …, leaves me with considerable concerns about her fitness.  As she was not given the chance to defend her actions, I shall simply order that a copy of this judgment and the orders be provided to the Registrar of Marriage Celebrants. 

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate: 

Date:  22.7.09