Kevric & Nilsson
[2024] FedCFamC1F 484
•22 July 2024
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 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
As set out in s 117(1) of the Family Law Act, the general rule in relation to costs is that each party will bear his or her own costs. That rule is subject to the provisions of s 117(2) which provides that a Court may make such order for costs as it considers just if “…the court is of opinion that there are circumstances that justify it in doing so…”
Subsections 117(2A)(a)-(g) of the Family Law Act set out the matters the Court must consider in determining whether to exercise its discretion and make an order as to costs. No one factor must be present, and no particular factor is to be given more or less weight than any other. The factors to which the Court must have regard are as follows:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the Court considers relevant.
DISCUSSION
I understand both parties are professionals. I otherwise know little about their respective financial circumstances. Neither of them are in receipt of legal assistance.
It is the applicant’s case that the respondent should have conceded that the marriage was void far earlier than she formally did in these proceedings. He asserts that by failing to do so, the respondent caused the applicant to expend considerable sums preparing the matter for a two day final hearing.
Counsel for the applicant referred to the following chronology:
(a)the respondent was advised by letter dated 16 December 2022 that the applicant would file an application seeking a declaration of nullity;
(b)the respondent was served with that application on 12 April 2023;
(c)the respondent’s response was filed on 28 May 2023. She sought the application be dismissed;
(d)the respondent indicated in a letter to the Legal Services Commissioner written in July 2023 that she did not object to an annulment of the parties’ marriage;
(e)in light of that correspondence, under cover letter dated 1 November 2023 the respondent was invited to amend her Response filed 28 May 2023;
(f)there was further communication between the parties’ solicitors in November 2023 and in a letter dated 15 November 2023 the applicant’s solicitors rejected the proposal apparently advanced by the respondent for the application for nullity to be withdrawn;
(g)on 18 December 2023 the orders made by Rees J include a notation that the applicant relies only on the provisions of s 23B(1)(d)(iii) of the Marriage Act and asserted he was mentally incapable of understanding the nature and effect of the marriage ceremony;
(h)Dr C was then appointed as the single expert. The report was released in April 2024. That report confirmed the applicant’s inability to provide real consent as a result of his mental health;
(i)trial directions were made on 27 May 2024 requiring the filing of trial material – with the applicant to file by 24 June 2024 and the respondent by 15 July 2024 – with which the applicant complied; and
(j)it was only on 7 July 2024 that the respondent formally conceded the ground of nullity when she filed her Amended Response in which she sought a declaration on the grounds of s 23B(1)(d)(iii) only.
However, it was submitted on behalf of the respondent that notwithstanding the respondent’s concession that the applicant lacked the requisite capacity, the applicant continued to press for a finding by the Court that the applicant’s consent was obtained by duress and fraud. It was submitted that as the respondent is a professional, any findings against her of such conduct could have a significantly adverse effect on her ability to work, and accordingly, she had to defend the proceedings.
It does seem to me that the applicant pursued arguments regarding duress and fraud:
(a)in the letter to the respondent’s solicitors dated 16 December 2022 the applicant’s solicitors advised they held instructions to file an application for a decree of nullity on the basis that the marriage was void as his consent was not real because “it was obtained by fraud and duress; and, [the applicant] was mentally incapable of understanding the nature and effect of the marriage ceremony”;
(b)the applicant’s Initiating Application filed 11 April 2023 identified both ss 23B(1)(d)(iii) and 23B(1)(d)(i) of the Marriage Act as alternate grounds upon which the marriage was void;
(c)the applicant’s Amended Initiating Application filed 16 November 2023 continued to identify both grounds as founding a finding of invalidity;
(d)whilst the orders made by Rees J on 18 December 2023 indicated the applicant relied only on subsection (iii), the notations to order made 27 May 2024 again set out that the applicant relied on both ss 23B(1)(d)(iii) and 23B(1)(d)(i) of the Marriage Act as to why the marriage was not valid;
(e)the applicant’s very lengthy trial material was filed on 24 June 2024. In his trial affidavit the applicant referred extensively to the respondent and her family “pushing” him to accept delusional beliefs, and that he was taught a narrative about him being an essential part of a prophesy frequently, multiple times each day to the extent that he believed he must fulfil his role in the prophesy. That included him becoming married to the respondent. His affidavit material also sets out numerous threats he asserted were made to him when he tried to leave. If the applicant was relying only on subsection 23B(1)(d)(iii) it is difficult to understand the relevance of much of his affidavit material; and
(f)a compliance check was conducted by my chambers on 9 July 2024 to ensure the matter was ready to proceed. The applicant responded to this correspondence on 11 July 2024. In the section where the parties are asked to identify the issues in dispute, the applicant responded: “[w]hether or not the Applicant could have consented to the marriage, due to duress or mental health (the latter appears to be agreed to by the Respondent). That is, even as at 11 July 2024 the applicant was again asserting his consent had been obtained by duress.
In her response to the compliance check, the respondent indicated she was of the view that the matter had resolved as “[s]he concedes the marriage should be annulled on the basis of the Husband lacked mental capacity to enter the marriage [sic]. It would appear the Husband continues to also suggest he married the Wife under duress”.
As set out, the respondent filed an Amended Response on 3 July 2024 in which she sought a declaration on the grounds of s 23B(1)(d)(iii) of the Marriage Act only.
Neither party can be said to have been wholly unsuccessful.
These proceedings were not necessitated by the failure of either party to comply with previous Court orders.
DETERMINATION
In the exercise of what has been described as a wide discretion, and taking all of the factors into account, I am not satisfied that there are circumstances that justify making a costs order against the respondent. It remained unclear whether the applicant pursued findings of fraud and duress – being findings the respondent strongly refuted. In my view, it could not be said that the respondent’s conduct as a litigant was wanting or that she has caused the applicant to incur significant costs. Whilst the notation to the orders made 18 December 2023 indicated the matter revolved only around the applicant’s mental health, a notation in a subsequent order, and indeed the applicant’s own trial material strongly suggested the applicant continued to assert his consent had been obtained by fraud and duress. Additionally the applicant identified the question of duress as an issue that remained in dispute as at 11 July 2024.
Accordingly I dismiss the applicant’s application for costs.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 22 July 2024
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