MS JARMAN & PERRIAM
[2018] FamCA 407
•4 June 2018
FAMILY COURT OF AUSTRALIA
| MS JARMAN & PERRIAM | [2018] FamCA 407 |
| FAMILY LAW – NULLITY OF MARRIAGE – Capacity to give consent – Where wife suffers from mental health issues – Whether capacity involves an understanding of marriage generally or the specific marriage being celebrated – Court grants the wife’s application for a decree of nullity. |
| Marriage Act 1961 (Cth) s 23 Family Law Act 1975 (Cth) s 31 |
| A K v N C (2003) FLC 93-178 |
| APPLICANT: | Ms Jarman |
| RESPONDENT: | Mr Perriam |
| FILE NUMBER: | LNC | 182 | of | 2018 |
| DATE DELIVERED: | 4 June 2018 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 9 May 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE RESPONDENT: |
Orders
The marriage solemnised on … 2016 between the applicant Ms Jarman and the respondent Mr Perriam (‘the marriage’) is declared to be void pursuant to the provision of the Marriage Act 1961 (Cth).
Consequently a Decree of Nullity is made in the marriage solemnised on … 2016 between the applicant Ms Jarman and the respondent Mr Perriam.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jarman & Perriam has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: LNC 182 of 2018
| Ms Jarman |
Applicant
And
| Mr Perriam |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Ms Jarman (‘the wife’) is applying for a decree of nullity in respect of her marriage to Mr Perriam (‘the husband’). The wife asserts that pursuant to s 23 of the Marriage Act 1961 (Cth) (‘the Marriage Act’) she was mentally incapable of understanding the nature and effect of the marriage ceremony.
The proceedings were heard at Hobart on 9 May 2018 and both the husband and wife appeared by telephone link.
The husband raised no issues of fact in relation to the reliability of the material provided by the wife and did not object to the application being granted.
The husband acknowledged that he was served with the proceedings and the Court relied upon the affidavit of service filed on behalf of the wife on 7 May 2018.
BACKGROUND
The wife was born in 1961 and at the time of the hearing was aged 56. She lives in Tasmania.
The husband was born in 1958 and is aged 49. He filed no documents in the proceedings. The wife identified him on oath from his voice over the telephone.
The wife had been previously married to Mr B who died in 2014 after a very short illness. The wife and Mr B had been married thirty four years.
The wife met the husband a few months before their marriage. He was a member of a particular religious order and the parties were married by a clergyman of that order in 2016.
The parties married and commenced living together on the date of their marriage. They separated about eleven months later in July 2017.
There are no children of the relationship.
THE EVIDENCE
The wife relied upon a series of affidavits.
The first affidavit was by her filed 23 March 2018 where she said that at the time of the marriage she was:-[1]
mentally incapable of making that decision and understanding the nature and effect of the marriage ceremony, due to an exacerbation of my (her) Bipolar Affective Disorder.’
She went on to say that due to her mental health she demonstrated poor insight.
[1] Paragraph 1 of the wife’s affidavit filed 23 March 2018.
She relied on a medical report from her general practitioner, Dr C, who said in a report dated 28 February 2018 that he had been the wife’s treating physician for 20 years and that she ‘suffers from a Bipolar Affective disorder which at times [caused] severe exacerbation in her condition making her mentally unsound.’[2]
[2] Ibid paragraph 2,Annexure 1.
Dr C opined that the wife was not mentally capable of understanding the nature and effect of the marriage ceremony.
Pursuant to directions of the Court the wife filed further material. She relied upon her affidavit filed 4 May 2018 which provided information that she proceeded to marry a person she had met only two months earlier despite concerns of her family and friends. The wife also deposed that since the marriage she has undertaken further treatment and her mental health has greatly improved.
The wife filed a further affidavit on 4 May 2018 annexing a sworn affidavit from a member of the clergy, Mr D, (‘the Clergyman’) who married the husband and wife. In that affidavit the Clergyman gave information in relation to the husband which was not relevant to this Court’s determination. He went on to say that the husband was determined to marry the wife and knew that she had a psychiatric condition, but still asked him to perform the ceremony.
The wife relied upon an affidavit by her general practitioner which was filed in addition to the report to which I refer earlier. In his affidavit filed 4 May 2018 Dr C expressed the view that the wife’s mental health was such that she often suffered severe manic episodes which adversely impacted upon her decision making, and that this in part may have arisen out of the death of her husband.
These proceedings were commenced on 23 March 2018 and on 27 March 2018 this Court made a chambers order listing the matter for hearing and directing the filing of further affidavit material, with which the wife complied.
The wife tendered the marriage certificate which was an exhibit in these proceedings.
DICUSSION
The Court’s original jurisdiction is found under s 31 of the Family Law Act 1975 (Cth) (‘the Family Law Act’) in that it provides:-
1.Jurisdiction is conferred on the Family Court with respect to:
…
(b) matters arising under the Marriage Act 1961 in respect of which proceedings (other than proceedings under Part VII of that Act) are instituted or considered under that Act …
An application for nullity of marriage made under s 51 of the Family Law Act must be based on the ground that a marriage is void.
Section 23 of the Marriage Act provides:-
Grounds on which marriages are void
(1)A marriage that took place on or after 20 June 1977 and before the commencement of section 13 of the Marriage Amendment Act 1985 is void where:
…
(d)the consent of either of the parties was not a real consent because:
(iii)that party was mentally incapable of understanding the nature and effect of the marriage ceremony; or
It is the wife’s contention that her consent to the marriage was not real consent because she was mentally incapable of understanding the nature and effect of the marriage ceremony.
Chisholm J discussed what is meant by this provision in A K & N C (2003) FLC 93-178) saying:-
Whether the wife lacked capacity
2.It is clear from the authorities that the law does not require a person to have a detailed and specific understanding of the legal consequences of marriage in order to have the capacity to give a valid consent.
Park v Park (1954) P 89; Dunne & Browne (1982) 60 FLR 212, 222 - 223; Hill & Hill [1959] 1 WLR 127, 130.
3.However “mere awareness of going through a marriage ceremony is not enough; a person must also understand the nature and effect of the ceremony involved”.
Anthony Dickey QC, Family Law (4th ed, 2002) at 175.
Mathieson (falsely called Perry) v Perry (1939) 56 NSW WN 89, Fall v Reilly [1971] ALR 157, Evans v Brenton (falsely called Tredennick) (1887) WN 129.
4.It was not necessary to rule on whether the question relates to the person’s general understanding of the nature of marriage and the obligations it entails (as suggested by the earlier authorities) or of the more specific consequences the particular marriage will have for the individuals involved.
Marriage of Brown; re Dunne (1982) 8 Fam LR 1, 9 (McCall J) considered.
There was no issue that the marriage in this proceeding, in the formal sense, took place. There was no issue as to the contentions of fact made by the wife; the husband asserting that he did not dispute those facts.
The wife has produced medical evidence from her treating general practitioner, Dr C, who supported her contention as to her state of mind as at the time of the marriage.
The wife had been grieving the loss of her previous husband, who passed away about two years prior to the marriage to her current husband. The evidence was that her previous husband died some four hours after being diagnosed with a particularly aggressive cancer.
The wife’s evidence was that she did not understand the nature and effect of the marriage ceremony and this was supported by her treating medical practitioner, Dr C, both in his report attached to her earlier affidavit and in his subsequent affidavit.
Dr C’s evidence in his report was particularly apposite. He expressed a view that at that particular time the wife did lack capacity.
On the evidence, thin though it may be, in my view the wife was aware that she was going through a marriage ceremony, but I am not satisfied that she was aware of the nature and effect of the ceremony involved, given her serious medical disorder, the symptoms of which were acute at that time.
As such I am satisfied that, given those circumstances, the wife did not give real consent because she was mentally incapable of doing so and as such the marriage was void. Consequently, I made a declaration that marriage solemnised in 2016 between the wife and the husband is void pursuant to the provision of the Marriage Act. Further, I made a Decree of Nullity in respect of that the marriage between these parties.
I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 4 June 2018.
Associate:
Date: 4 June 2018
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