Marin v Salmon and Anor

[2013] HCASL 177

MARIN

v

SALMON & ANOR

[2013] HCASL 177
B36/2013

1. The applicant (mother) and respondent (father) have since 2003 been parties to parenting and property proceedings in the Family Court of Australia.  Those proceedings have not been resolved, partly as a result of the applicant dispensing with her legal representation and refusing to attend court-ordered psychiatric appointments intended to assess her capacity to represent herself.

2. On 15 July 2011, the primary judge (O'Reilly J) appointed a case guardian for the applicant in the proceedings. Her Honour was satisfied that the applicant was, because of a mental disability, "not capable of adequately conducting, or giving adequate instruction for the conduct of, the case", and was therefore "a person with a disability" who, in accordance with r 6.08(1) of the Family Law Rules 2004, could continue the proceedings only through a case guardian. In making this determination, the primary judge took into account a psychiatric report, based on consultations conducted in 2004 and 2006, that had diagnosed the applicant with a long-term psychiatric disorder. Her Honour concluded that, in circumstances where the applicant's actions meant that a more recent psychiatric assessment was not available, she could rely on the existing report, together with her own observations of the applicant, to conclude that the applicant's diagnosed mental disability continued such that she was not capable of adequately conducting, or giving adequate instruction for the conduct of, her case.

3. The Full Court of the Family Court of Australia (Ainslie-Wallace, Murphy and Kent JJ) dismissed an appeal by the applicant against the decision of the primary judge. The Full Court held that no appealable error had been demonstrated in the primary judge's assessment of the evidence, that the Family Court had jurisdiction to order the appointment of the case guardian and that the applicant had not been denied procedural fairness.

4. The applicant seeks special leave to appeal against the Full Court's decision.  The applicant advances submissions similar to those advanced before the Full Court.  Those submissions do not identify any reason to doubt the correctness of the Full Court's decision.  No question of principle is raised and the application does not enjoy any prospect of success.

5. Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
3 December 2013 S.J. Gageler