SIKANDER & VASHTI
[2018] FamCAFC 111
•20 June 2018
FAMILY COURT OF AUSTRALIA
| SIKANDER & VASHTI | [2018] FamCAFC 111 |
| FAMILY LAW – APPEAL – NULLITY – Where the appellant appeals an order refusing the grant of a nullity – Whether the primary judge erred in his application of the Marriage Act1961 (Cth) – No error demonstrated – Where the appellant asserts that the primary judge erred in his findings as to the mental capacity of the respondent to consent to marriage at the time of the wedding – Where it is unnecessary to consider this challenge as the further evidence adduced by the appellant establishes that the respondent was not capable of consenting – Appeal allowed – Marriage between the appellant and respondent declared to be a nullity. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where the evidence was not available at the time of the trial - Evidence of the respondent’s mental capacity to consent to the marriage –Where the respondent’s treating psychiatrist deposes that the respondent suffered Wernicke-Korsakoff syndrome with paranoid schizophrenia – Where the respondent was therefore found to be incapable of giving relevant consent or ‘real’ consent at the time of the marriage – Where the respondent was found not to be able to understand the nature and effect of the marriage ceremony – Where the evidence therefore demonstrates that the order under appeal is erroneous – Application allowed. |
| Family Law Act 1975 (Cth) s 51 Marriage Act 1961 (Cth) s 23B |
| CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 |
| APPELLANT: | Mr Sikander |
| RESPONDENT: | Ms Vashti |
| FILE NUMBER: | MLC | 6656 | of | 2017 |
| APPEAL NUMBER: | SOA | 79 | of | 2017 |
| DATE DELIVERED: | 20 June 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Alstergren DCJ, Ainslie-Wallace & Aldridge JJ |
| HEARING DATE: | 20 June 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 October 2017 |
| LOWER COURT MNC: | [2017] FamCA 794 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | No appearance by or on behalf of the Respondent |
Orders
The Application in an Appeal to adduce further evidence in the form of an affidavit affirmed by Dr T on 8 November 2017 is allowed.
The appeal is upheld and the order of Cronin J made on 9 October 2017 is set aside.
The marriage solemnised between Mr Sikander and Ms Vashti on … April 2016 in City B, India and registered under the Hindu Marriage Act 1955 is declared a nullity.
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 Sikander & Vashti 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 79 of 2017
File Number: MLC 6656 of 2017
| Mr Sikander |
Appellant
And
| Ms Vashti |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
AINSLIE-WALLACE J
Mr Sikander (“the appellant”) sought a decree that his marriage in April 2016 to Ms Vashti (“the respondent”) was a nullity. On 9 October 2017 Cronin J dismissed that application and the appellant now appeals from that order.
An order was made by Cronin J for electronic service on the respondent of the documents, however she did not file any documents nor take any part in the proceedings before the primary judge nor did the respondent appear on the appeal or file any documents.
The appellant filed an Application in an Appeal seeking to adduce further evidence on the appeal. The evidence is of the respondent’s treating psychiatrist, Dr T, and goes to the respondent’s mental capacity.
The basis on which the appellant sought a declaration of nullity was that he contended that by reason of mental incapacity, the respondent’s consent to the marriage was not a real consent. That is, she was mistaken as to the nature of the ceremony or did not understand the nature and effect of the marriage ceremony to which she apparently consented and thus the marriage was void. The appellant further argued that the respondent’s consent was void because of fraud and duress brought about by her parents.
It is helpful to set out the facts taken from the primary judge’s reasons and the affidavit of the appellant, to give context to his Honour’s decision and to this appeal. His Honour clearly accepted the appellant’s account of events.
The appellant and the respondent are Indian and their marriage was “culturally arranged”. It appears that at all relevant times the appellant was living in Australia. The marriage took place in India. The appellant said that he first met the respondent in India in the last week of December 2015 after which he returned to Australia. Thereafter, the appellant said, the respondent refused to speak or communicate with him, when he did speak to her by phone she hardly spoke, if pressed, he said, she broke down and cried. His subsequent attempts to meet the respondent were refused nor did her parents consent to there being an engagement party, instead they suggested that the marriage be brought forward to 25 April 2016, which it was.
Despite the appellant arriving in India a week in advance of the wedding, he was not permitted to meet the respondent privately.
During the marriage ceremony, the respondent refused to engage in key rituals such as the exchange of garlands. The appellant said, and the primary judge clearly accepted, that during the ceremony the respondent was “constantly pulled aside and talked to by her parents”.[1]
[1] Affidavit of applicant filed 5 July 2017, paragraph 7.
The appellant said:[2]
8. The marriage was solemnized according to the Hindu wedding rites. The Respondent was escorted till [sic] the stage by her family, as is common. However, instead of coming up on stage, as soon as her family sat down in the audience, the Respondent sat down beside them. Then her family had to coax her to come on stage. When I enquired, the Respondent said, “I got confused. I am feeling groggy”.
[2] Affidavit of applicant filed 5 July 2017, paragraph 8.
During the ceremony the respondent appeared confused and struggled to repeat the ritualistic vows, affirmations and consent which were said by the celebrant, with the effect that as the appellant said “… I did my vows, and the priest was forced to skip hers”. [3]
[3] Affidavit of applicant filed 5 July 2017, paragraph 9.
The appellant described the respondent being removed by her parents immediately after the ceremony and said:[4]
12. … I did not see her again that day, till about midnight, wherein she arrived at the room looking dazed, didn’t even acknowledge my presence, and went to sleep.
13. The subsequent morning, the Respondent was scared of my presence besides her, had absolutely no recognition of me, begun [sic] screaming, “Who are you? Who are you?” and started crying uncontrollably. Again, she was taken away to be comforted in private by her parents, and I didn’t see her till mid-day.
[4] Affidavit of applicant filed 5 July 2017, paragraph 12-13.
The marriage persisted for four months during which there were periods in which the respondent did not recognise the appellant and would violently to attack him (at [24]).
On 25 August 2016 the respondent’s father took her away and he told the appellant’s parents that she would not return (at [27]).
On 11 September 2016 the appellant met the respondent’s father who told him that she had suffered “mental health issues” for about two years before the marriage and told the appellant that on the day of the wedding the respondent was “very heavily sedated”. His Honour observed that there was no indication of what the medication was nor whether it would affect the capacity of the respondent to engage in the marriage ceremony (at [28]).
His Honour referred to a document discovered by the appellant after separation and which was attached to his affidavit. His Honour noted that the document appeared to be a report of a psychiatrist in relation to the respondent and which was dated 23 June 2016. The appellant also found a prescription written by that doctor. The primary judge noted that in the document the psychiatrist referred to the respondent being first diagnosed with psychosis in May 2014, subsequent attendance to a psychiatrist and admission to hospital on “multiple times for intensive treatment” (at [32]). His Honour said that the evaluation of the respondent indicates ongoing auditory and visual hallucinations, persecutory delusions and depression. He said at [32], “[s]ignificantly, the document referred to the respondent having no recollection of incidents during periods when she was lucid and the psychiatrist assessed an impairment of short term memory and judgment.”
His Honour was not persuaded on the evidence that on the date of the marriage the respondent did not understand the nature of the ceremony or that she was mentally incapable of understanding the ceremony to the extent that her consent was not a true consent.
His Honour concluded:
40. … Whilst the behaviour described by the applicant and the priest is not just odd, it is bizarre, I have no other evidence that would enable me to make a finding that on the day of the marriage, the respondent was mistaken about the nature of the ceremony or that she was mentally incapable of understanding the nature and effect of the marriage ceremony. Obviously, the proof of those issues must be decided on the balance of probabilities.
41. The evidence indicates that on selected days, the respondent seemed confused but she had also been prepared for the wedding day because she was wearing the customary dress. The priest gave evidence about that and I do not know whether she understood what that was all about. A perfectly logical explanation might be that she had been medicated but that does not necessarily establish that she did not have the mental capacity to consent to the ceremony.
Thus his Honour refused the application.
The appeal
The appeal raises 9 grounds of challenge to his Honour’s orders. The thrust of the grounds is first to challenge the primary judge’s application of the relevant legal principles (Grounds 1, 2 and 9.1) and secondly to challenge his Honour’s approach to the evidence (Grounds 3 to 7 and 9.2). Ground 8 relates to the further evidence to which the appellant’s Application in an Appeal relates which has been admitted on the appeal but is not otherwise a proper ground of appeal. Ground 9.2 asserts that the primary judge erred in deciding that the only basis on which the relevant incapacity could be decided was through the evidence of the respondent’s psychiatrist.
Grounds 1, 2 and 9.1:
To make an order of nullity of a marriage pursuant to s 51 of the Family Law Act1975 (Cth), the court must be satisfied that the marriage is void. Whether a marriage is void is found within the terms of s 23B(1) of the Marriage Act1961 (Cth). In this case the appellant sought a decree of nullity relying principally on s 23B(1)(d): that is, on the basis that the respondent’s consent was not a real consent.
I note that the appellant challenged the primary judge’s failure to find that the respondent’s consent was obtained by reason of fraud and duress brought about by her parents. In my view there is no substance to this contention and there is no evidence to support that assertion and I would dismiss that challenge.
Relevantly s 23B(1)(d) 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:
…
(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 was mentally incapable of understanding the nature and effect of the marriage ceremony
The appellant asserts that the primary judge conflated the tests of nullity as contained in s 23B(1)(d)(ii) and (iii) and, as a result, failed to consider the evidence separately in relation to each aspect. It is further asserted that the primary judge imposed a higher standard of proof in relation to s 23B(1)(d)(ii) to the determination of the test in s 23B(1)(d)(iii). In oral submissions the appellant clarified what was meant by that submission, being that while the findings necessary to satisfy both tests require a finding on the balance of probabilities, he argued that evidence of a greater cogency was required as between one subsection and the other. I am of the view that that difference is largely irrelevant to this appeal.
Before the primary judge, the appellant relied on both subsections (ii) and (iii) as well as asserting that the respondent’s consent to the marriage was obtained through the fraud and duress of her parents. His Honour was unpersuaded on the evidence of the asserted fraud and duress. Thus, he said, the focus of his reasons was on whether the evidence supported the inference that the respondent “was unable to provide consent to marry the applicant because she was mistaken as to the nature of the ceremony performed by virtue of being ‘mentally incapable’ of understanding the nature and effect of the marriage ceremony” (at [12]).
The appellant’s challenge focusses on this statement. He argued that in that statement the primary judge conflated the two tests. I do not accept that submission and in my view it is clear that his Honour well understood the nature of the tests on which the appellant relied and did not conflate the terms of the two subsections. His Honour said:
40. Returning then to the issue of the law, it will be apparent that for the marriage to be void, a finding must be made that the respondent’s consent was not a real one because either she was mistaken as to the nature of the ceremony performed or that she was mentally incapable of understanding the nature and effect of the marriage ceremony. …
(Emphasis added)
Thus in my view the appellant’s challenges in Grounds 1, 2 and 9.1 are not made out.
Evidentiary Challenges – Grounds 3 – 7 and Ground 9.2
Turning then to the challenges to his Honour’s findings and conclusions based on the evidence. I commence by observing that the making of findings of fact from the evidence is a matter quintessentially for the primary judge and an appeal court will not interfere with those findings unless satisfied that the findings were not available on the evidence. So too, conclusions found by the primary judge to arise from the evidence may only be subject to appellate intervention if those conclusion were demonstrated to be “plainly wrong”. It is against those legal principles that the appellant’s contentions must be viewed.
The thrust of these grounds are, as I have said, directed to the primary judge’s conclusions and findings based on the evidence before him.
It is unnecessary to consider these and the other remaining grounds of appeal because in my view the appeal should be allowed on the basis of the admission of the further evidence in the appeal.
It is in this context that I turn to the application to adduce evidence.
The Full Court has the capacity to receive evidence in an appeal, although that capacity is constrained. In CDJ v VAJ (1998) 197 CLR 172, McHugh, Gummow and Callinan JJ considered the power of this court to admit further evidence. At [109] their Honours observed that the exercise of the power is remedial in nature, to give the Full Court discretion to receive further evidence where “that evidence, if accepted, would demonstrate that the order under appeal is erroneous.”
In this case in my opinion, the evidence sought to be adduced should be admitted and taken into account on that basis.
The appellant introduced an affidavit of the respondent’s treating psychiatrist, Dr T, affirmed on 8 November 2017. It was Dr T’s report and prescription that had been found by the appellant after the parties separated and which was before the primary judge.
It is important to understand that Dr T’s evidence was not available to be brought before the trial judge because she was on extended leave at and around the time of the hearing before the primary judge. When she returned from leave she contacted the appellant and at his request made the affidavit which has been accepted and which will be taken into account on the appeal.
The doctor began treating the respondent in May 2014 and saw her regularly up until her marriage. The psychiatrist indicated that she was treating the respondent around the time of her marriage. She said:[5]
5. [The respondent] suffers from an early onset of alcohol related brain damage (ARBD), specifically alcohol related dementia and Wernicke-Korsakoff syndrome (WKS) with paranoid schizophrenia. She has frontal lobe damage, significant cognitive impairment, severe impairment to memory, recall, decision making, judgement and risk assessment. [The respondent] needs help with simple day to day chores and is easily “overwhelmed” with the most inconsequential of choices.
[5] Affidavit of Dr T filed 24 May 2018.
She said WKS “is a neurological disorder arising from a deficiency of thiamine that results in brain disorder/damage. In [the respondent’s] case, this condition was caused by heavy, chronic alcohol consumption”.[6]
[6] Affidavit of Dr T filed 24 May 2018, paragraph 8.
The doctor indicated that in May 2014 the respondent was diagnosed with paranoid schizophrenia with persecutory delusions and auditory hallucinations leading to a severe disconnect from reality. Shortly afterwards, the respondent was hospitalised for four months, during part of which she was unable to walk or feed herself without assistance.
During her hospitalisation, the doctor said that the respondent’s WKS progressed to Korsakoff’s psychosis which is characterised by anterograde amnesia (loss of memory of events after the onset of the disease in May 2014), severe loss of short term memory, loss of ability to recall, inability to form new memories, confabulation, loss of content in conversation and hence passivity. The damage is permanent. The doctor said “[h]ence she had to be on constant supervision”.[7]
10 Affidavit of Dr T filed 24 May 2018, paragraph 15.
Following the respondent’s discharge from hospital in December 2014, it was recommended that she have 24 hour supervision at home. Between that discharge and April 2016 she had six further admissions to a psychiatric ward for seizures and delirium.
The doctor said that the WKS exacerbated the respondent’s schizophrenia causing her episodes to degenerate in duration and severity with “progressively longer time to return to lucidity”.[8] The respondent was again discharged from hospital with recommended 24 hour supervision. She was last discharged from hospital on 12 April 2016.
11 Affidavit of Dr T filed 24 May 2018, paragraph 18.
At the date of the latest discharge, tests revealed that her psychiatric IQ classification was “Profound Metal Retardation”,[9] which the doctor said was the most severe level of intellectual disability/mental incapacity. She said:[10]
18. … The assessment of her condition at this point was that she was mentally incapacitated to be able to provide informed consent or make any decisions with respect to her medical care, finances or even the simplest of life choices.
The doctor said that the respondent relied heavily on her parents with whom she lived to make choices such as when to shower, when to sleep and what to eat, behaviour she said was common in patients suffering from brain disorders.
Based on her observations and treatment of the respondent, the doctor was unequivocal that the respondent did not have the mental capacity to engage in a marriage ceremony nor would she appreciate the nature and consequences of marriage.
She said:[11]
21.3… the marriage had occurred in less than two weeks after her discharge from the hospital following a psychosis incident and when she was on powerful antipsychotic medication. Given the nature and severity of these degenerative episodes and the impact of medication … [the respondent] certainly could not have been lucid on 25 April 2016 to be able to understand and consent to a marriage ceremony.
[11] Affidavit of Dr T filed 24 May 2018.
She concluded:[12]
23.1… it is unlikely that she understood the ceremony as a marriage ceremony at all. With a psychotic mind and her medicated state, she would have just gone through the motions with no understanding or registration of events.
[12] Affidavit of Dr T filed 24 May 2018.
But for this additional evidence, I would have had considerable doubt as to whether the appellant’s challenge to his Honour’s evidentiary findings would have succeeded. It is clear from the primary judge’s reasons that he was alive to the relevant question – namely, what was the respondent’s mental capacity on the date of the marriage – and he concluded, as was open to him on the evidence, that while the evidence before him raised concerns, it was insufficient to satisfy him of the relevant matter.
I am of the view the further evidence clearly demonstrates that at the time of the ceremony of marriage, the respondent was incapable of giving the relevant consent and her consent was not a “real” consent for the purpose of the marriage.
I am thus of the view that the evidence indicates that his Honour’s order was made in error and should be set aside and in my opinion the appeal should be upheld.
Disposition of the Appeal
Having had the benefit of the further evidence together with the evidence before the primary judge, in my view it is unnecessary to remit the matter and this court should re-determine the application.
In that regard I am satisfied that by reason of her frank mental illness and psychiatric condition, the respondent’s consent apparently given during the marriage ceremony was not a real consent and I am satisfied that she was not able to understand the nature and effect of the marriage ceremony.
The appellant also sought to rely on the provisions of s 23B(1)(d)(ii), that is that the respondent was mistaken as to the nature of the ceremony performed, while that conclusion may indeed flow from the evidence of the doctor, it is in my opinion unnecessary to consider that section given my conclusion as to the provision of subparagraph (iii).
I would therefore recommend that there be an order declaring that the marriage solemnised between Mr Sikander and Ms Vashti in April 2016 in City B, India and registered under the Hindu Marriage Act 1955 is a nullity.
ALDRIDGE J
I agree with the reasons given by and the orders proposed by Ainslie-Wallace J.
ALSTERGREN DCJ
I also agree.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Alstergren DCJ, Ainslie‑Wallace & Aldridge JJ) delivered on 20 June 2018.
Associate:
Date: 21 June 2018
9 Affidavit of Dr T filed 24 May 2018, paragraph 13.12 Affidavit of Dr T filed 24 May 2018.
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