MARIN & SALMON - [2013] FamCAFC 88

FAMILY COURT OF AUSTRALIA

MARIN & SALMON

[2013] FamCAFC 88

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – where the appellant appeals an order appointing for her a case guardian – where the appellant alleges the trial judge erred in failing to consider certain evidence and in placing weight on evidence of her psychiatric health which was allegedly based on misinformation and errors – whether the trial judge erred – where no error demonstrated – where the appellant claims the trial judge failed to afford her procedural fairness – whether the appellant was denied procedural fairness – where ground not made out – appeal dismissed.

Family Law Act 1975 (Cth)
Guardianship and Administration Act 2000 (Qld)

APPELLANT:

Ms Marin

RESPONDENT:

Mr Salmon

INDEPENDENT CHILDREN’S LAWYER:

Forest Glen Lawyers

FILE NUMBER:

BRF

3924

2003

APPEAL NUMBER:

2011

DATE DELIVERED:

7 June 2013

PLACE DELIVERED:

Brisbane

DATE HEARD:

19 February 2013

PLACE HEARD:

Brisbane

JUDGMENT OF:

Ainslie-Wallace, Murphy & Kent JJ

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

15 July 2011

LOWER COURT MNC:

[2011] FamCA 664

REPRESENTATION

FOR THE APPELLANT:

Self-represented

FOR THE RESPONDENT:

Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Forest Glen Lawyers

Orders

The appeal against the orders of Justice O’Reilly made on 15 July 2011 be dismissed.
There be no order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marin & Salmon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 66 of 2011
File Number: BRF 3924 of 2003

Ms Marin

Appellant

And

Mr Salmon

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Ms Marin (“the mother”) appeals against orders made by O’Reilly J on 15 July 2011 appointing a case guardian for her in relation to proceedings between the mother and Mr Salmon (“the father”). The father and the Independent Children’s Lawyer resisted the appeal and sought to maintain her Honour’s orders.
Her Honour ordered (relevant to this appeal):
1.Pursuant to Rule 6.09 of the Family Law Rules 2004 [Mr S] is appointed case guardian for [the mother] in relation to these parenting and property proceedings.
2.Pursuant to Rule 6.14, Mr [S’s] costs of acting as case guardian be paid from the income and property of [the mother].
3.There be no order as to the costs of and incidental to the independent children’s lawyer’s application for appointment of the case guardian.
4.A transcript of today’s proceedings be prepared at the Court’s cost and provided to the parties.
Rule 6.08(1) of the Family Law Rules 2004 provides:
6.08 Conducting a case by case guardian
(1) A child or a person with a disability may start, continue, respond to, or seek to intervene in, a case only by a case guardian…
The dictionary to the Rules defines “person…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MARIN & SALMON

Details

AGLC: MARIN & SALMON [2013] FamCAFC 88
Case: [2013] FamCAFC 88
Decision Date

CaseChat Overview and Summary

The case of Marin and Salmon involved a contentious dispute between the parents over the custody of their children. The mother argued that the father had a history of deceit, connections with India, and had prevented the children from spending time with her. The father, on the other hand, was found to have acted in contempt on multiple occasions. The mother also claimed that the trial judge had not given sufficient weight to her evidence of the father's behavior and her own professional achievements and parenting capacity. The court was tasked with determining whether the trial judge had erred in her assessment of the evidence presented.

The legal issues before the court were whether the trial judge had made errors in her evaluation of the evidence, particularly in relation to the mother's claims against the father, her professional achievements, and her ability to self-represent. The mother argued that the trial judge had failed to consider the father's history of deceit and the mother's own qualifications and parenting skills, which contradicted the opinion of an expert witness that the mother was delusional.

The court found that the trial judge had not erred in her consideration of the evidence. The court emphasized that the weight given to evidence is within the discretion of the trial judge, and that the mother had not demonstrated any error on the part of the trial judge. The court also rejected the mother's argument that the trial judge had not given sufficient weight to her self-representation, finding that the trial judge had made specific findings on the matter.

The court ultimately upheld the decision of the trial judge, finding that the mother had not demonstrated any errors on the part of the trial judge in her evaluation of the evidence. The court dismissed the mother's appeal and affirmed the decision of the trial judge.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Her honor erred failed to give due weight to the evidenced, long history of the father… Her Honor erred and her discretion miscarried in that she failed to give due weight to the evidence that the father, for reasons pertaining to his known duplicity and evidenced connections with India, is very likely to return to India permanently and remain there and not allow the return to Australia of the children…. Her Honor erred and her discretion miscarried in that she failed to give due weight to the complete contempt of the father, on many occasions including recently, thwarting the children from spending time with their mother as compared to merely ‘having a holiday’ with him in India. (Errors as in original and original numbering)… These matters, if they are relevant, appear to be a continuation of the mother’s argument that before the trial judge could safely rely on Dr F’s opinion that she was delusional, the trial judge was obliged to determine that the mother’s assertions against the father were not true, she arguing that if they were true, then she was not delusional. We reject the basis of the argument. The trial judge did not err as asserted. Her honor erred when she didn’t consider the Mother was on a medical certificate until 28 February 2011 and entitled under legislation to time out for rest and recovery. It is very exhausting to have to constantly answer dishonest statements, false statements and multiple applications and affidavits lodged by the Father. It is also costly…. (Errors as in original and original numbering) It seems that this is a reference to the father’s applications to various courts and tribunals and the mother’s contention that the repeated applications were oppressive. We have rejected this argument. Her honor erred when she didn’t consider the Mother’s training, her medical history or the Children’s medical history within her affidavit of 13 October 2010… (Errors as in original and original numbering) In the particulars under this heading, the mother refers to her completion of a university degree, that she has held training and service roles and has managed the children’s health difficulties in the past. The thrust of the mother’s argument is that the information about the mother’s achievements and her proven parenting capacity were matters that contradicted Dr F’s opinion and were matters that the trial judge ought to have taken into account in determining the issue of the mother’s capacity. As we have already indicated, the weight or importance given to evidence is squarely a matter for the trial judge. The mother has not made out any error in her Honour’s consideration of the evidence. Her honor erred when she didn’t consider that the Mother had competently self-represented as she was without legal aid assistance/legal counsel… (Errors as in original and original numbering) The trial judge made a specific finding that the mother “…is not capable of representing herself and that it is imperative that her lawyers continue to assist in the trial.…” (see par [16.4]).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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