SIKANDER & VASHTI [2018] FamCAFC 111 (20 June 2018) (Alstergren DCJ, Ainslie-Wallace and Aldridge JJ)

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 Act 1961 (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.

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