Kevric & Nilsson - [2024] FedCFamC1F 484

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kevric & Nilsson [2024] FedCFamC1F 484

File number: SYC 2467 of 2023

Judgment of: CARTER J

Date of judgment: 22 July 2024

Catchwords: FAMILY LAW – NULLITY – Where the applicant asserts the marriage is null and void – Where the single expert concluded the applicant was not capable of understanding the nature and effect of the marriage – Marriage is null and void – Decree of nullity made.
FAMILY LAW – COSTS – Where the applicant seeks costs against the respondent – No costs awarded against the respondent.

Legislation:
Family Law Act 1975 (Cth) ss 51, 117

Marriage Act 1961 (Cth) ss 23B(1)(d)(i), 23B(1)(d)(iii)

Division: Division 1 First Instance

Number of paragraphs: 29

Date of hearing: 18 July 2024

Place: Melbourne

Counsel for the Applicant: Mr Todd (Sydney, via videolink)

Solicitor for the Applicant: Gannon Family Lawyers

Counsel for the Respondent: Mr Schonell (Sydney, via videolink)

Solicitor for the Respondent: Wiltshire & Wroughton Legal
ORDERS

SYC 2467 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR KEVRIC

Applicant

AND:
MS NILSSON

Respondent

ORDER MADE BY:

CARTER J

DATE OF ORDER:

22 JULY 2024

THE COURT ORDERS THAT:
1.The marriage between Mr Kevric and Ms Nilsson solemnised in late 2021 is void.
2.A decree of nullity in relation to that marriage is granted.
3.The applicant’s application for costs is dismissed.
4.The applicant’s Amended Initiating Application filed 16 November 2023 and the respondent’s Amended Response to an Initiating Application filed 3 July 2024 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
NULLITY APPLICATION

This is an application filed by the applicant seeking a declaration of nullity in relation to the marriage conducted in late 2021.
Whilst the parties purport to consent to a decree of nullity, this is a matter in which the Court must make the appropriate findings for such a declaration to be made.
For the reasons that follow, I am satisfied that ground 23B(1)(d)(iii) is made out, and the marriage is therefore void.
Brief background
From 2018, the applicant suffered drug-induced psychosis resulting in him being admitted as an involuntary patient to the B Hospital for periods in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kevric & Nilsson

Details

AGLC: Kevric & Nilsson [2024] FedCFamC1F 484
Case: [2024] FedCFamC1F 484
Decision Date: 22 July 2024

CaseChat Overview and Summary

In the case of Kevric & Nilsson, Mr Kevric applied for a decree of nullity of his marriage to Ms Nilsson, which was solemnised in late 2021. Mr Kevric argued that the marriage was null and void due to his mental incapacity at the time of the marriage. The primary issue before the court was whether Mr Kevric was mentally incapable of understanding the nature and effect of the marriage, thereby rendering it void under section 23B(1)(d)(iii) of the Marriage Act 1961. The court found that Mr Kevric had a history of drug-induced psychosis, which impaired his mental capacity at the time of the marriage. The single expert's report confirmed that Mr Kevric was experiencing a psychotic episode and his distorted religious beliefs influenced his decision to marry. Given this evidence, the court concluded that Mr Kevric was not capable of appreciating the true nature and effect of the marriage. Consequently, the court granted the decree of nullity, declaring the marriage void. Additionally, the court dismissed Mr Kevric's application for costs against Ms Nilsson, as well as both parties' applications to amend their initiating and responding applications.

The court's reasoning was based on the psychiatric evaluation provided by Dr C, which concluded that Mr Kevric was mentally incapable of understanding the nature and effect of the marriage due to his psychosis and delusional religious beliefs. The court accepted Dr C's findings as unchallenged by Ms Nilsson and found them sufficient to establish the applicant's mental incapacity at the time of the marriage. The court's decision to grant the decree of nullity was grounded in the statutory requirement under section 23B(1)(d)(iii) of the Marriage Act that a marriage is void if the consent of one party is not a real consent due to mental incapacity. The court's dismissal of the costs application was based on the principle that the applicant's inability to understand the nature and effect of the marriage did not entitle him to costs against the respondent.

Orders

Orders of the court

SYC 2467 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR KEVRIC

Applicant

AND:

MS NILSSON

Respondent

ORDER MADE BY:

CARTER J

DATE OF ORDER:

22 JULY 2024

THE COURT ORDERS THAT:

1. The marriage between Mr Kevric and Ms Nilsson solemnised in late 2021 is void.

2. A decree of nullity in relation to that marriage is granted.

3. The applicant’s application for costs is dismissed.

4. The applicant’s Amended Initiating Application filed 16 November 2023 and the respondent’s Amended Response to an Initiating Application filed 3 July 2024 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons that follow, I am satisfied that ground 23B(1)(d)(iii) is made out, and the marriage is therefore void. Brief background From 2018, the applicant suffered drug-induced psychosis resulting in him being admitted as an involuntary patient to the B Hospital for periods in late 2018, late 2020 and again in late 2021. The parties met in about mid-2021. The applicant was admitted into hospital in late 2021. Following the applicant’s discharge some time later, he was cared for by the respondent. He then proposed marriage in late 2021 and a ceremony was conducted a short time later. The parties separated in May 2022. The applicant initiated these proceedings on 11 April 2023 seeking a declaration of nullity. The respondent filed a response on 28 May 2023 in which she sought the applicant’s Initiating Application be dismissed. In December 2023 orders were made for the appointment of a single expert to conduct a psychiatric examination of the parties and provide an opinion as to whether the applicant was able to understand the nature and effect of the marriage ceremony on the day it occurred. That report was undertaken by Dr C and is dated April 2024. An affidavit annexing that report was filed on 3 June 2024. Relevantly, Dr C considered the applicant’s psychiatric history and determined the applicant was experiencing a psychotic episode prior to and at the time of the marriage and his distorted and delusional religious beliefs appeared to be influential in his decision to marry. Dr C concluded:C.… The marriage was based on a false premise at a time when [the applicant’s] overall capacity to think and reason was likely significantly impaired. On that basis I am of the view that from a psychiatric perspective [the applicant] was not capable of appreciating the true nature and effect of the marriage in [late] 2021.The law Section 51 of the Family Law Act 1975 (Cth) (“the Family Law Act”) provides that: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 is set out in s 23B of the Marriage Act 1961 (Cth) (“the Marriage Act”) which provides, relevantly, as follows:(1) A marriage to which this Division applies … is void where: …(d) the consent of either of the parties is not a real consent because: (i) it was obtained by duress or fraud; …(iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony…Determination The report of Dr C was not challenged by the respondent. Indeed, both parties urge the Court to find the marriage void and make the declaration of nullity in light of the conclusions reach by Dr C. I am satisfied on the evidence before me that at the time of the marriage in 2021 the applicant was mentally incapable of understanding the nature and effect of the marriage and thus the marriage entered into by the parties in late 2021 is void. COSTS The applicant sought the respondent pay his costs of this application fixed at $50,000. That was opposed by the respondent who sought the costs application be dismissed. Alternatively, it was asserted any costs application should be dealt with at the conclusion of the proceedings initiated by the respondent pursuant to s 90SM of the Family Law Act. The law in relation to costs

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number:	SYC 2467 of 2023
Judgment of:	CARTER J
Date of judgment:	22 July 2024
Catchwords:	FAMILY LAW – NULLITY – Where the applicant asserts the marriage is null and void – Where the single expert concluded the applicant was not capable of understanding the nature and effect of the marriage – Marriage is null and void – Decree of nullity made. FAMILY LAW – COSTS – Where the applicant seeks costs against the respondent – No costs awarded against the respondent.
Legislation:	Family Law Act 1975 (Cth) ss 51, 117 Marriage Act 1961 (Cth) ss 23B(1)(d)(i), 23B(1)(d)(iii)
Division:	Division 1 First Instance
Number of paragraphs:	29
Date of hearing:	18 July 2024
Place:	Melbourne
Counsel for the Applicant:	Mr Todd (Sydney, via videolink)
Solicitor for the Applicant:	Gannon Family Lawyers
Counsel for the Respondent:	Mr Schonell (Sydney, via videolink)
Solicitor for the Respondent:	Wiltshire & Wroughton Legal

SYC 2467 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR KEVRIC Applicant
AND:	MS NILSSON Respondent

ORDER MADE BY:	CARTER J
DATE OF ORDER:	22 JULY 2024