Privet v Vovk [2005] NSWSC 1258 | Case summary

JUDGMENT 1 HIS HONOUR: These proceedings arise out of the purported will of Maria Lendvai who died on 14 October 2003 aged 81. The matter first came before the court constituted by Bryson J in October/November 2003. The dispute at that stage was over who was entitled to arrange for the deceased's funeral. Bryson J, for reasons then given, gave this right to the first defendant who is the son of the deceased. 2 At that stage the plaintiff was claiming that he was the deceased's husband and was also the executor under a will made by the deceased on 22 February 2002. That will described the plaintiff as "my confidant, lover and future husband". 3 The plaintiff was notified of the hearing and was served of all appropriate documents and did not appear at the hearing; indeed, on 26 November 2004 his solicitors wrote to the defendants' solicitors indicating that the plaintiff no longer wished to pursue his claim on the deceased's estate and shortly after, those solicitors ceased to act. 4 The proceedings were heard before me on 15 November 2005, Mr Townsend of counsel appearing for the cross-claimants who sought probate of a will made by the deceased on 12 June 1991 and for the plaintiff's claim for probate of the 2002 will to be dismissed. The defendants' cross-claim also sought a declaration that the alleged marriage of the deceased and the plaintiff was invalid, a decree of nullity of marriage and an order to the Registrar of Births, Deaths and Marriages that the registration of the purported marriage be set aside. 5 The first problem that arises is whether the court can make the declaration and order for nullity which is sought. 6 The Family Law Act 1975 (Cth) by s 4 defines "matrimonial cause" as meaning: "(a) proceedings between the parties to a marriage, or by the parties to a marriage, for a decree of: (i) dissolution of marriage; or (ii) nullity of marriage; or (b) proceedings for a declaration as to the validity of a marriage or of the dissolution or annulment of a marriage by decree or otherwise… ". 7 Section 39 of that Act permits matrimonial causes to be instituted in this court and sub-section (5) invests this court with the necessary Federal jurisdiction. However, s 40(3) of the Act provides: "The Governor-General may, by Proclamation, fix a date as a date on and after which matrimonial causes, and other proceedings, referred to in sub-section 39(5) may not be instituted in or transferred to the Supreme Court of a State or Territory specified in the proclamation …". 8 Section 40(4) provides that this court is not to hear and determine proceedings under the Family Law Act otherwise than in accordance with such a proclamation though that section does not invalidate any decree made by a Supreme Court. 9 On 27 May 1976 the Governor-General made a proclamation that certain classes of proceedings may not be instituted in or transferred to, inter alia, the Supreme Court of NSW. Such proceedings included: "Proceedings of a kind referred to in paragraph (a) of the definition of 'matrimonial cause' …. ; Proceedings of a kind referred to in paragraph (b) of that definition … ". 10 There was a further proclamation made on 23 November 1983 which purports to be wider in its prohibitions but it is unnecessary to consider it. 11 The instant proceedings are not a matrimonial cause within para (a) of the definition because the proceedings are not between the parties of a marriage. Para (b) of the definition is not limited to proceedings between the parties of a marriage. However, the Family Court, apart from special jurisdiction under s 105 of the Family Law Act or the proceedings designated as third party proceedings, ordinarily has no jurisdiction to deal with a case once one party to the marriage has died. 12 In Dowal v Murray (1978) 143 CLR 410 at 434, Aickin J, in a dissenting judgment, said that although para (b) of the definition does not expressly say that the proceedings shall be between the parties of a marriage, of their very nature such proceedings must be between the parties of a marriage. However, this dictum has not been followed and, for instance, in Dunne v Brown (1982) 60 FLR 212,a daughter of a deceased man sought a declaration as to the validity of that man's marriage to the defendant after his death. McCall J on the facts made a declaration that the marriage was indeed valid. No comment appears from the judgment as to whether the application by the daughter was made by a person with standing or whether the court in the instant case, the Family Court of Western Australia, had jurisdiction to make such an order after the death of the man. 13 Professor Dickey in his Family Law 3rd ed p 108 says that the Supreme Court of a State may have all the jurisdiction exercised by the Family Court by virtue of the cross-vesting legislation. Whilst this is in general the case, I wonder whether, in the light of the Proclamation and s 40(4), the statement is completely correct. 14 In my view, even if Aickin J's dictum is not completely correct, at least after the death of a party to a marriage, there is no inhibition on this court having jurisdiction to make a finding that a marriage is invalid. 15 The New Zealand case of Smith v Bowden [1940] NZLR 749 is instructive. That was a case where the plaintiff was the widow of the deceased and obtained an order for income during her widowhood. She later went through a form of marriage with one Hitches. Hitches was already married so his second marriage was bigamous and void. The widow obtained an order that a gift of income continued because her so-called second marriage was void. It seems to me that underlying the Smith v Bowden case is the view espoused by Professor Dickey that a void marriage is void and a court declaring it to be so merely states what the position is, it does not alter the fact that the marriage was void ab initio. 16 Accordingly I am satisfied that I have jurisdiction to deal with this case. As the deceased's purported husband is a party it may be that the court should make an order as to the status of the marriage, but it is quite possible to deal with almost all the matters that arise for decision in this case without going so far. 17 It should also be noted before I get on to the facts of the case that in Australia, the distinction between a void and voidable marriage has disappeared. Traditionally a voidable marriage could only be attacked during the lifetime of the parties whereas a void marriage was always void. Now s 23B of the Marriage Act 1961 (Cth) sets out the only grounds on which a marriage is void. Section 23B(1)(d) notes one event as being "the consent of either of the parties is not a real consent because: (i) it was obtained by duress or fraud; … (iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony." 18 There is some evidence that the marriage, if it be a marriage, was conducted in breach of s 42 of the Act. However, s 48(2) provides that a marriage is not invalid by reason of non-compliance with s 42 so that whilst I will note the problems as I outline the facts, I must focus on whether there has been a real consent. 19 The marriage allegedly took place when the deceased was an in-patient on 13 June 2003. The marriage certificate in evidence shows that the celebrant was one Quang Van Truong and that the witnesses were C Farkas and Ellen Wilson. 20 The deceased had suffered a stroke in April 2003 after which she became dependent on others. She was first a patient in Sutherland Hospital and then a patient in the Ferndale Nursing Home at Mortdale until her death. There is evidence from some friends who visited her that she would say fantastic things such as that her husband had another family in Darwin. On 30 June 2003, the Guardianship Tribunal made orders placing the deceased under the guardianship of the Public Guardian and committing her estate to the Protective Commissioner. The Tribunal came to the view that the deceased was not capable of making informed decisions about her accommodation, care and treatment. 21 The Tribunal had before it evidence from some people who have given evidence in the present case. Dr Cordato has given evidence that the deceased in June 2003 had fluctuating clarity of thought, at times she behaved appropriately but at other times she responded inappropriately and that analysis showed that she should be placed in the severe cognitive impairment range. Occupational therapist Karen Wiseman came to the view that the deceased had impaired orientation as to time and date or where she was and asked whether her mother was coming to visit (her mother was deceased). She also had non-reality orientated conversations such as stating that she was cremated on the day Ms Wiseman examined her. There was also a report by a lady who could not be found, a speech therapist, who reported in June 2003 that the deceased demonstrated difficulties with comprehension. She reported that the deceased's yes/no responses were not always reliable and tangential or unrelated verbal responses were elicited during the tests. She reported that the deceased had difficulties understanding complex verbal commands or instructions and had a short attention span. 22 The most significant piece of evidence was given by Ms Naunton, an authorised marriage celebrant. 23 Ms Naunton said that the plaintiff contacted her by telephone in early May 2003 saying that he wanted to marry an elderly lady with whom he had had a long time association. The plaintiff attended Ms Naunton's office on 9 May 2003 with a Cecilia Farkas. Ms Farkas said that she was a long time friend of the deceased and it would be her dearest wish to get married. The plaintiff took away the prescribed form which Ms Naunton asked to have completed. On 11 May 2003 the plaintiff brought back the form with a the signature "M Lendvai" on it. 24 On 9 June 2003 Ms Naunton very wisely attended the Sutherland Hospital at about 2 pm on her own. She said to the deceased: "I'm Judith Naunton your marriage celebrant" to which the deceased replied: "Are you the police. Somebody has stolen my pension card, bank book and passport." Ms Naunton said: "No, no Felix has them." The deceased said: "Felix who". Ms Naunton said: "Your marriage is on Thursday" and the deceased replied: "Will you get me the police?" 25 Ms Naunton was alarmed and she spoke to one of the nurses and told the nurse that the deceased was being married on Thursday. The nurse reacted with astonishment. 26 Ms Naunton formed the opinion that the deceased did not have capacity to marry. She told this to the plaintiff and said: "Having met her I cannot proceed with the wedding." The plaintiff remonstrated with Ms Naunton for visiting the deceased without him being present and said: "Oh you've got her on a bad day. Come down with me tonight with Cecilia and she will say it's alright". Ms Naunton said: "No, nothing will be achieved by that. Come around and get your refund." 27 Ms Naunton said she was not contacted by any other celebrant seeking a transfer of the notice of intention to marry. 28 Thus Ms Naunton had her interview with the deceased on the Monday and Quang Van Truong celebrated her marriage to the plaintiff on the following Friday. 29 As I have said, the plaintiff did not appear at the hearing nor did he call evidence. However, the material before the Guardianship Tribunal was digested by the Tribunal and is in evidence before me. Although I need to be very careful with this material because it was not necessarily accepted by the Guardianship Tribunal and is not in accordance with the evidence presented by the cross-claimants, I should set it out for completeness. The Tribunal reported that the plaintiff told it that the deceased had asked him to marry her. He had responded that they would marry after his 60th birthday. He was upset that Judith Naunton had gone to the hospital in his absence. He also agreed he had not informed the doctors or the hospital staff of the marriage because of the deceased's interest in privacy. The two witnesses to the marriage, Cecilia Farkas and Ellen Wilson said that the deceased appeared to be quite excited during the ceremony and had not needed to be prompted in her responses. Members of the Tribunal spoke to the deceased in her hospital bed and were told by the deceased that her husband and friend could look after her. However, they noted that the content of her responses was frequently tangential but she did make a number of references to her friend and husband and it was clear she was referring to the plaintiff. 30 There must be considerable doubt about whether there was any real compliance with s 42 of the Marriage Act at all. The Act makes it perfectly clear that people must attend before an authorised celebrant a certain period before the marriage and must make declarations and that apart from a transfer, that celebrant is the one who celebrates the marriage. There is great suspicion that the form handed to Ms Naunton was not signed by the deceased. Indeed, there is great suspicion that the 2002 will was also not signed by the deceased. In any event, a completely different celebrant who has never given evidence, even to the Guardianship Tribunal, purported to conduct a ceremony when none of the prescribed declarations had been put before him as far as one can tell. However, because of s 48 of the Marriage Act (when read with s 23B(1)(c)) non-compliance with s 42 does not appear to make a marriage void. The only significance of that material is that it goes to whether there was a void marriage because of lack of consent. 31 Mr Townsend referred me to the decision of Sir John Nichol in the leading case of Portsmouth v Portsmouth (1828) 1 Hagg Ecc 355; 162 ER 611. The headnote shows that the court was considering a marriage de facto solemnized under circumstances of clandestinity between a person of weak and deranged mind and the daughter of his trustee and solicitor. The Court of Arches found the marriage void. That judgment and the other judgments cited to me, Evans v Brenton (1887) 3 WN (NSW) 129 and Park v Park [1954] P 112, show that it is necessary to show that the person contracting the marriage must be mentally capable of appreciating that it involves the responsibilities normally attached to a marriage. See also Hill v Hill [1959] 1 All ER 281 (PC). 32 In my view the evidence which I have related, particularly the evidence of Ms Naunton, shows that the deceased did not appreciate that she was getting married. This view is reinforced by the fact that the plaintiff has not pressed his claim at the trial, nor has he produced witnesses such as Cecilia Farkas, Ellen Wilson or the celebrant, who might be able to throw light on the matter in his favour. There is also great doubt in my mind of the validity of the will made in the plaintiff's favour in 2002 which again was witnessed by friends of the plaintiff and on which no evidence has been called to support it, notwithstanding the order of Bryson J in 2003 that the plaintiff needed to prove it in solemn form. 33 In my view the cross-claimants are entitled to orders that probate of the will of Maria Lendvai dated 2 June 1991 be granted to John Mellor, one of the two executors named therein with leave to Michael John Smith the other executor to come in and prove. Order that the matter be referred to the Registrar in Probate to complete the grant. Order that the Registrar of Births, Death and Marriages correct the Register kept under the Births, Deaths and Marriages Registration Act 1995 by cancelling the entry relating to the purported marriage between the plaintiff Felix Privet and the late Maria Lendvai on 13 June 2003. Order that the plaintiff pay the costs of the proceedings.

Privet v Vovk

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