Pannos and Fotinos

[2020] FamCA 102

FAMILY COURT OF AUSTRALIA

PANNOS & FOTINOS [2020] FamCA 102

FAMILY LAW – NULLITY – Application for decree of nullity of marriage – section 23(1)(d)(iii) of the Marriage Act 1961 (Cth) – where Applicant mentally incompetent to give informed consent to marriage – decree of nullity granted.

Family Law Act 1975 (Cth) s 51
Family Law Rules 2004 (Cth) r 6.09
Marriage Act 1961 (Cth) s 23B

APPLICANT: Ms Pannos

RESPONDENT: Mr Fotinos

FILE NUMBER: MLC 12044 of 2019

DATE DELIVERED: 26 February 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Hartnett J

HEARING DATE: 12 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Roberts

SOLICITOR FOR THE APPLICANT: Go To Court Lawyers

COUNSEL FOR THE RESPONDENT: Ms Gioutlou

SOLICITOR FOR THE RESPONDENT: Sophie Gioutlou & Co

Orders made 12 February 2020

1. Pursuant to r.6.09 of the Family Law Rules 2004 (Cth) Ms Petridis be appointed case guardian for the Applicant, Ms Pannos born … 1979.

DECLARATION

1. The Court is satisfied that the Applicant was present in Australia on the relevant date in satisfaction of ss 39(4)(a) and 39(4A) of the Family Law Act 1975 (Cth).

Orders

1. The marriage solemnised between Ms Pannos and Mr Fotinos, registration number …/2018, is void.

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

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 Pannos & Fotinos 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 MELBOURNE

FILE NUMBER: MLC 12044 of 2019

Ms Pannos

Applicant

And

Mr Fotinos

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings commenced by Initiating Application filed on 24 October 2019.  The Applicant (Ms B as case guardian for Ms Pannos) seeks a declaration that the marriage ceremony entered into between the Applicant and the Respondent, Mr Fotinos (‘the Respondent’) on … October 2018 is void and for a decree of nullity to be granted.

2. The Applicant relies upon an Initiating Application; an Application in a Case filed 12 February 2020; affidavits of Ms B sworn 7 October 2019 and 7 February 2020; and an affidavit sworn 8 October 2019 by Dr C, psychiatrist, who has been the treating psychiatrist of Ms Pannos for over 15 years.  Each of the affidavits relied upon have ‘exhibits’ attached which in their totality were tendered in evidence in the proceedings.  In particular, annexed to the affidavit of Dr C, and marked as exhibit ‘[C]-1’, is a copy of Dr C’s reports dated 17 October 2018 and 13 May 2019.

3. The Application in a Case filed 12 February 2020, sought an order of the Court that Ms B be appointed case guardian for the Applicant, pursuant to r 6.09 of the Family Law Rules 2004 (Cth) (‘the Rules’).

4. Rule 6.09 of the Rules is as follows:-

   Who may be a case guardian

   A person may be a case guardian if the person:

   (a)  is an adult;

   (b)  has no interest in the case that is adverse to the interest of the person needing the case guardian;

   (c)  can fairly and competently conduct the case for the person needing the case guardian; and

(d)  has consented to act as the case guardian.

1. Ms B satisfied the elements of subparagraphs (a) to (d) inclusive.

2. The Respondent filed a Response to the Initiating Application on 9 December 2019.  He sought as a final order “Such Order as the Court deems appropriate”.  That Response was supported by an affidavit sworn by him on 6 December 2019 and filed 9 December 2019.  At the hearing of the matter the Respondent did not object to the making of the orders as sought by the Applicant. 

Background

1. Ms Pannos was born on … 1979.  She is currently 40 years of age. 

2. Ms Pannos has congenital deafness and an intellectual impairment. Additionally, she has other development abnormalities that have arisen due to the interaction of these two medical conditions during her formative years, including failure of speech. 

3. Ms Pannos also has schizophrenia.  She developed her illness at age 19, early in her first job when she became paranoid.  She lost the ability to work, use public transport and even to leave the house - the latter improving in recent years with medication.  Nevertheless, she still requires a companion when she does leave the house and that companion has mostly been her mother. 

4. Ms Pannos has been under the care of psychiatrist, Dr C, for something in the vicinity of 16 years.  She is on constant medication in order to deal with her paranoid beliefs, anxiety, auditory hallucinations and depression. All these conditions are exacerbated by her deafness and the isolation this has caused her. 

5. In Ms Pannos’s sessions with Dr C, two interpreters are required, a Greek-English interpreter and an Auslan interpreter.  Dr C’s evidence is that she has found that only a very capable and experienced Auslan interpreter is able to understand Ms Pannos.  Alternatively, her counsellor, Ms D, is skilled at communicating with Ms Pannos in using Auslan. 

6. In or about 2001, Ms Pannos began receiving a full disability pension.  She no longer requires ongoing assessment for receipt of that pension due to the severity of her mental health and her developmental difficulties. 

7. Ms Pannos is unable to administer her own medications reliably and so her mother ensures that she takes the necessary medication on a daily basis. Ms Pannos has lived with her parents since birth. She is unable to live independently.  As such her parents, the Applicant (being Ms Pannos’s sister) and her brother, Mr E Pannos, provide Ms Pannos with support and care.

8. Ms Pannos has known the Respondent since they spent time together attending H School, a school for the deaf.  Ms Pannos completed year 6 in 1991, as did the Respondent.  Ms Pannos then went on to E School where she completed the Victorian Certificate of Education in 1997.  The Respondent did not attend that secondary school. 

9. Ms Pannos and the Respondent have spent time together since their early school years. In about October 2017, Ms Pannos went with the Respondent to Sydney for a trip of some four days duration.  During this time Ms Pannos did not take her medications, and upon her return to her family home she was mentally unstable and suffered a psychotic episode.  She indicated to her family that she wished to stay at home. She did not see the Respondent until approximately a year later.

The Marriage

1. On or about 13 October 2018, Ms Pannos’ mother called Ms B to say that Ms Pannos was missing and that she and her husband did not know where she was.  On the following day when Ms B was about to leave for the police station to file a missing person’s report, her mother called her to say that a woman they had never met had arrived at the home with the Respondent’s father stating that Ms Pannos was married and that they had photos to show them.  In the photos, Ms Pannos was dressed in tracksuit pants and the photos showed that it was the Respondent whom she had married.

2. Later, on 14 October 2018, Ms B attended upon the Suburb F Police Station and made a missing persons alert.  Ms Pannos had no medication with her and Ms B requested the police attend upon the home of the Respondent’s parents to do a welfare check. 

3. On the following day, a constable from Suburb G Police Station called Ms B and said that Ms Pannos and the Respondent were not at the Respondent’s parents’ home, as advised by the Respondent’s father.  Ms B did not believe that information and attended upon the home of the Respondent and his parents herself.  She arrived at about 6.00pm that evening.  She demanded to be allowed to see Ms Pannos and found her sitting on a sofa alone, looking into the distance.  She made no movement or acknowledgement of her sister’s presence.  She had been three days without any of her medication. Her eyes were red, slightly swollen and bloodshot. Following her departure from the home, Ms B rang the Suburb G Police Station but was told ultimately that no further action would be taken as Ms Pannos was safe. 

4. On 25 October 2018, Ms B filed an application for a guardianship order with the Victorian Civil and Administrative Tribunal (‘the Tribunal’).  On … December 2018, the Tribunal granted her application for an order as Ms Pannos’ guardian and administrator.  Present at that hearing was Dr C who provided a medical report with respect to Ms Pannos’s disabilities. 

5. On 7 December 2018, Ms B applied for an intervention order on behalf of Ms Pannos against the Respondent.

6. On 9 December 2018, Ms Pannos departed the Respondent’s residence and returned home to her parents.  She was psychotic and threatening suicide if she had to return to the Respondent’s home.  She required the immediate care of her psychiatrist and has remained back in her parents’ home, residing with them, receiving appropriate psychiatric care and on her medications. 

Relevant Legal Principles

1. This application is made pursuant to s 51 of the Family Law Act 1975 (Cth) (‘the Act’) and the only ground upon which a decree of nullity may be granted is that the marriage is void. Section 23B(1) of the Marriage Act 1961 (Cth) (‘the Marriage Act’) relevantly provides:-

   Grounds on which marriages are void

   (1) A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:

   (a)  either of the parties is, at the time of the marriage, lawfully married to some other person;

   (b)  the parties are within a prohibited relationship;

   (c)  by reason of section 48 the marriage is not a valid marriage;

   (d)  the consent of either of the parties is not a real consent because:

   (i)  it was obtained by duress or fraud;

   (ii)  that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or

   (iii)  that party did not understand the nature and effect of the marriage ceremony; or

   (e)  either of the parties is not of marriageable age;

   and not otherwise.

   …

2. This application is made pursuant to s 23B(1)(d)(iii) of the Marriage Act.

Consideration

1. The Respondent does not oppose the making by the Court of the declaration sought or the orders to be made. Indeed, on an occasion prior to the hearing of this matter, and whilst before a Registrar, the Respondent gave his consent to the declaration and orders proposed but in circumstances where the Registrar did not have the necessary jurisdictional power to make the order that was proposed to be made. On the hearing of the matter on 12 February 2020, the Respondent did not provide his consent to, but did not oppose, the making of the declaration and orders as sought. 

2. The evidence of Dr C is clear.  Ms Pannos suffers from the disabilities referred to earlier in these reasons and, in her report of 13 May 2019, in respect of the marriage, Dr C’s expert opinion was as follows:-

   Recently [Ms Pannos] said she is lonely and wants to see [Mr Fotinos] again.  I understand that her social isolation brings unhappiness to her, but I also remember her sentiments upon her return to her parents when she left [Mr Fotinos]. She was determined never to return.  At our recent session, she initially said that she was happy with [Mr Fotinos], and then said, regarding his family – “I was sick, they didn’t give me tablets, didn’t give me food”.  She also said that she is “sad”, “lonely” and “want(s) someone to talk to”.  “I feel torn between them and [Mr Fotinos], and mum is very sick”.  When I asked if she wanted to stay married to [Mr Fotinos], she said “yes”.

   My impression is that [Ms Pannos] did not understand that she was going to get married.  She had previously said repeatedly that she did not want to marry [Mr Fotinos].  At times she wanted him to visit her, and not to go out, but she would feel compelled to do as [Mr Fotinos] wanted.

   Currently it is my impression [Ms Pannos] is anxious and rudderless without her mother’s firm limit setting (because of her mother’s grave illness).  Although I do not know him, from [Ms Pannos’] account, [Mr Fotinos] appears to be a strong-willed person who will control her. It seems that [Ms Pannos] is not able to make a reasonable judgement for herself, as she acts on the basis of her emotions constantly and is unable to use higher thought to plan, defer, judge situations, or form cohesive assessments involving prior experience.

   If [Ms Pannos] does return to [Mr Fotinos], I think that it is likely that she will relapse into psychosis within months, secondary to the stress of that environment and the likely cessation of her medication.

3. It is clear on the evidence before the Court, as contained in the reports of Dr C and in the affidavits of Ms B that Ms Pannos was mentally incompetent to be able to give informed consent to her marriage.  The Respondent does not challenge this. 

4. Accordingly, the Court will make the declaration and orders that are sought by the Applicant.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hartnett delivered on 26 February 2020.

Associate: 

Date:  26 February 2020