Barac v Lameyer [2025] ACTSC 540

1. This is an originating application brought pursuant to s 37L(b)(iii) of the Domestic Relationships Act 1994 (ACT), seeking relief in the form of a declaration that the civil partnership entered into between Vinko Barac, who I will refer to as Vinko, and Precy Lameyer, who I will refer to as the respondent, is void.

2. The civil partnership was registered on 21 December 2023 and endorsed with registration number 6006218. The application before me is brought by Denis Barac (“Denis”) as litigation guardian for Vinko. Denis is one of Vinko's children and with his sister Maryana was appointed a guardian and manager for Vinko in appointment orders made by ACAT on 16 January 2024.p

3. The single ground for the application is that Vinko did not freely enter into the civil partnership with the respondent because he was mentally incapable of understanding its nature and effect. Vinko's inability to understand is asserted to be a consequence of the advanced stage of his Alzheimer's type dementia at the time of registration of the civil partnership. The applicant reads the affidavits of Sarah Lee Higgs affirmed on 10 September 2025, 24 September 2025 and 8 December 2025, and Thomas Xavier Taylor affirmed on 22 October 2025. Ms Higgs and Mr Taylor are the applicant’s solicitors.

The respondent

4. The respondent did not take part in the hearing. She provided email and physical addresses for service of the court documents and on 2 October 2025, she acknowledged receipt of the originating application and the affidavit of Ms Higgs affirmed on 10 September 2025.

5. The respondent was subsequently emailed on 17 October 2025 advising her of the court orders made by Senior Deputy Registrar Noble on that day. In the email communication she was advised that the court may make orders progressing the matter in her absence. The respondent has not filed a defence or otherwise indicated any intention to play an active part in the proceeding.

6. On 8 November 2025 the solicitors for the applicant received an email communication from the respondent which is in evidence before me. In that email the respondent gave an express and positive indication that she intended to take no further part in the proceeding. She indicated that she would not be appearing in the Supreme Court matter, that she no longer intended to contest the application and that she understood that the court may make orders in her absence. In the circumstances, I am satisfied that there has been effective service on the respondent, that she is aware of the nature of the orders sought by the applicant, that she is aware of the prospect of orders being made in her absence, that she has elected not to contest the proposed orders and she has elected to play no active part in the proceedings.

The Domestic Relationships Act 1994

7. Section 37L(b) of the Domestic Relationships Act 1994 (ACT) states the following: 37L Void civil partnerships A civil partnership is void if— … (b) either party did not freely enter into the civil partnership because— (i) the party’s agreement to enter into the civil partnership was obtained by duress or fraud; or (ii) the party was mistaken about the identity of the other party or the nature of the application under section 37E; or (iii) the party was mentally incapable of understanding the nature and effect of the civil partnership.

8. It is the last of those subsections within s 37L(b) that is relied upon in this application.

The events leading to this application

9. The affidavit material before me reveals the following: (a) In or about 2019, Vinko was charged in relation to some criminal matters. He was represented by his current solicitors in those matters. (b) In responding to those charges, his solicitors arranged for an assessment of Vinko to be completed by Dr Mary Ann Kulh of ‘More Than Medicine’. (c) Dr Kulh is a geriatrician and general physician.

10. Dr Kulh’s report dated 10 June 2022 is in evidence and on its face is a joint report prepared by Dr Kulh and Stella Creighton, a nurse practitioner. The critical findings in that report are: (a) As at June 2022, Vinko's presentation of cognitive decline with predominant memory loss was consistent with the diagnosis of Alzheimer's type dementia. (b) MRI scanning revealed mild to moderate global cerebral atrophy. (c) Cognitive testing supported the diagnosis. (d) There is evidence of significant cognitive decline in the areas of learning and memory, language, executive function and social cognition. (e) Vinko is likely to have had a major neurocognitive Alzheimer's dementia from at least late 2021. His dementia score on testing performed for the purposes of the report indicated that his cognitive impairment would have been present for two to three years prior to that assessment. (f) Of significance, Dr Kulh observed at 7.3.3 of her report: People living with Alzheimer's dementia can lose insight, judgment and ability to differentiate right from wrong. This can particularly occur when frontal lobe impairment is present. In Mr Barac's case, he had evidence of frontal cognitive deficits on Montreal cognitive assessment noted by loss of points in verbal fluency, abstract thinking, trail-making task, and executive functioning. (g) Dr Kulh found that Vinko’s Alzheimer’s was at least moderate in severity. She expected that within 1 to 12 months of her assessment he would be: (i) more forgetful of recent events; (ii) more confused with time and place; and (iii) become unfamiliar with his surroundings. (h) She assessed Vinko as being mentally incapable of attending court as he would have had an impaired capacity to give a reliable history or accurate responses. (i) Dr Kulh described Vinko as having “a superficial understanding of what is occurring around him.”

11. Annexed to the affidavit of Ms Higgs affirmed on 8 December 2025 are some additional reports from Ms Creighton and Dr Kulh. Those reports are dated 20 February 2023 and 23 March 2023 respectively. Importantly they confirm that Vinko continued to deteriorate in the months following the June 2022 report. They each expressed the view that as at February or March of 2023, Vinko lacked decision-making capacity with regard to financial, health and personal matters. Dr Kulh went on to say that Vinko did not understand the nature and effect of his decisions in relation to those matters. She recommended that the enduring power of attorney appointing Maryana and Denis should come into effect from 20 February 2023.

12. Subsequently, on 14 October 2023, an ACAT application was made for guardianship orders. Those orders were made on 16 January 2024, in favour of Maryana and Denis, on the basis that the Tribunal was satisfied that Vinko had impaired decision-making capacity. A copy of the Tribunal's orders was before me.

13. In the course of the guardianship proceedings, it became apparent that Vinko had entered into a registered civil partnership with the respondent. The certificate evidencing that partnership was registered on 21 December 2023.

14. [Redacted.]

15. The transcript of the Magistrates Court proceedings was also before me. It revealed: (a) That the respondent arrived in Australia in about November 2022. (b) She asserted having been in a video call relationship with Vinko for some years prior to her arrival. (c) Shortly after her arrival, the family became aware that the respondent was living at Vinko's home, and that there were some unusual aspects of his financial management, such as the respondent shutting down one of Vinko's superannuation accounts and receiving a cheque for the proceeds. (d) The circumstances in which the civil partnership had been entered remained somewhat unclear. What is abundantly clear is that it was entered into at a time that was many months after Dr Kulh had expressed the view that Vinko had no capacity to make decisions regarding financial, health and personal matters.

Consideration

16. The relief sought by the applicant is declaratory in nature. In Higgins v ACT (No 3) [2025] ACTSC 336, McWilliam J helpfully summarised the antecedents of the Court's power to grant declaratory relief, commencing at [17]. At [45], her Honour observed that in the absence of any specific substantive statutory power as opposed to a procedural rule, the Court has such jurisdiction as is necessary to administer justice in the Territory pursuant to s 20 of the Supreme Court Act 1933 (ACT). I adopt her Honour's summary commencing at [48] of the principles applying to the exercise of the discretion to grant declaratory relief as follows.

17. The discretion to grant declaratory relief is a broad one to be exercised judicially. It is directed to the determination of legal controversies concerning rights, liabilities and interests of a kind which are protected or enforced in the court. There must be utility in granting the declaration. Regardless of the position of the parties, the court must be satisfied on the evidence that the making of the declaration is appropriate. There is some authority for the proposition that relief in the nature of declaratory relief may be refused where there is no proper contradictor: see Forster v Jododex Australia Pty Ltd [1972] HCA 61; 127 CLR 421 at 437.

18. I am satisfied on the basis of the very detailed and carefully reasoned medical opinion provided by Dr Kulh, and supported by the nurse practitioner Sarah Creighton, that at the time of registration of the civil partnership between Vinko and the respondent, Vinko, as a consequence of his progressive dementia, lacked decision-making capacity with regard to financial, health, and personal matters.

19. Dr Kulh expressed the opinion in her June 2022 report that amongst other things, Vinko showed a lack of judgment, was inclined to be unpredictable in his behaviour, and had a superficial understanding only of what was going on around him. I have no doubt with reference to that medical assessment that Vinko was mentally incapable of understanding the nature and effect of the civil partnership he entered into in December 2023.

20. Although the respondent has played no active part in the proceedings, I am also satisfied that she is well aware of the proceedings and that she has chosen to play no active part as a contradictor for the reasons stated earlier in this decision. I therefore make a declaration that the civil partnership between Vinko Barac and Precy Animas Lameyer bearing registration number 6006218, endorsed on 21 December 2023 by David Pryce, is void pursuant to s 37L(b)(iii) of the Domestic Relationships Act 1994 (ACT).

Orders

21. The orders of the Court are: (1) I make a declaration that the civil partnership between Vinko Barac and Precy Animas Lameyer bearing registration number 6006218 endorsed on 21 December 2023 by David Pryce is void pursuant to s 37L(b)(iii) of the Domestic Relationships Act 1994 (ACT). (2) I direct the Registrar-General to do all things necessary to give effect to this declaration.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller.

Associate: Date: