Oliver (Deceased) & Oliver - [2014] FamCA 57

FAMILY COURT OF AUSTRALIA

OLIVER (DECEASED) & OLIVER

[2014] FamCA 57

FAMILY LAW – MARRIAGE – NULLITY – Application for declaration under section 113 of the Family Law Act 1975 (Cth) – Whether the husband was mentally incapacitated at the time of the marriage ceremony in respect of section 23B(1)(d)(iii) of the Marriage Act 1961 (Cth) – Whether the onus of proof shifts to a respondent to disprove mental incapacity at the time of the marriage ceremony if the evidence establishes a general mental incapacity

Family Law Act 1975 (Cth) s 113
Marriage Act 1961 (Cth) s 23B(1)(d)(iii)

Babich & Sokur and Anor [2007] FamCA 236
Turner v Meyers, falsely called Turner (1808) 1 Hag Con 414

APPLICANT:

Mr Oliver (Deceased)

RESPONDENT:

Ms Oliver

FILE NUMBER:

PAC

5589

2012

DATE DELIVERED:

12 February 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

2, 3, 4 and 5 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Katsinas

SOLICITOR FOR THE APPLICANT:

Alan Rigas Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Weaver

SOLICITOR FOR THE RESPONDENT:

Bell Lawyers

Orders

That the marriage of Mr Oliver and Ms Oliver solemnised on … April 2011 be declared as void in accordance with section 23B(1)(d)(iii) of the Marriage Act 1961 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Oliver (Deceased) & Oliver 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 PARRAMATTA

FILE NUMBER: PAC 5589 of 2012

Mr Oliver (Deceased)

Applicant

And

Ms Oliver

Respondent

REASONS FOR JUDGMENT

The proceedings

These are proceedings seeking a declaration under section 113 of the Family Law Act 1975 (Cth) (“the Family Law Act”) as to the validity of the marriage between the late Mr Oliver (“the deceased”) and the Respondent in these proceedings, his wife Ms Oliver (“the Respondent”).
The marriage was celebrated in late April 2011 at which time the deceased was aged 78 and the Respondent was aged 49.
The deceased died in September 2013.
The Applicant in the present proceedings is Ms J, the granddaughter of the deceased.
It is contended by her that the subject marriage is invalid as the consent of the deceased to the marriage was not a real consent because at the time of the marriage he was mentally incapable of understanding the nature and effect of the marriage ceremony as provided for in section 23B(1)(d)(iii) of the Marriage Act 1961 (Cth).
It is common ground between the parties that the relief sought by the Applicant is for a declaration pursuant to section 113 of the Family Law Act and that the Applicant has standing to make the present application.

Background

At the commencement of these proceedings the deceased was resident in a retirement village and required full-time care as a result of his immobility, general health and diminished cognitive capacity.
At that time the financial affairs of the deceased were under the…

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 Oliver (Deceased) & Oliver

Details

AGLC: Oliver (Deceased) & Oliver [2014] FamCA 57
Case: [2014] FamCA 57
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application for a declaration under section 113 of the Family Law Act 1975 (Cth) concerning the validity of a marriage. The Applicant, Ms J, the granddaughter of the deceased, sought to have the marriage between her grandfather, Mr Oliver (the deceased), and the Respondent, Ms Oliver, declared void. The marriage had been solemnised in April 2011, when the deceased was 78 and the Respondent was 49. The deceased had died in September 2013. It was common ground that the Applicant had standing to bring the application.

The central legal issue before the Court was whether the deceased lacked the mental capacity to understand the nature and effect of the marriage ceremony at the time of the marriage, as required by section 23B(1)(d)(iii) of the Marriage Act 1961 (Cth). This raised a question as to whether the onus of proof shifted to the Respondent to disprove mental incapacity if the Applicant established a general mental incapacity in the deceased.

The Court found that the deceased had a history of significant cognitive impairment, alcohol abuse, and related health issues dating back to at least 2001. Medical records from 2001 indicated problems with short-term memory, described as a mix of mild Alzheimer's and alcohol-related issues, complicated by delirium and confusion. Further evidence from 2004 suggested his capacity to make rational decisions remained impaired. The Applicant and her husband testified that the deceased was confused, forgetful, and unaware of his surroundings in the period leading up to the marriage, including at his late wife's funeral in August 2010. He also made statements suggesting he was unaware of his wife's death and spoke of his late wife as if she were alive. In early 2011, the deceased informed the Applicant that he was getting married, stating, "Neither did I" when asked if he had a girlfriend, and the Respondent indicated the wedding would be in June 2011. The deceased's former son-in-law, Mr H, who held a Power of Attorney for the deceased, also observed significant cognitive decline, including the deceased's confusion about his late wife's death and his financial affairs. Mr H also recounted conversations in early 2011 where the deceased expressed paranoia about Mr H's intentions and later announced his intention to marry the Respondent, stating she would look after him and the bills. The Court noted that the deceased was admitted to a nursing home in August 2011, suffering from significant cognitive impairment and dementia.

The Court declared the marriage of Mr Oliver and Ms Oliver solemnised on 26 April 2011 to be void in accordance with section 23B(1)(d)(iii) of the Marriage Act 1961 (Cth).

Orders