Salmon and Marin (No 3)

[2011] FamCA 766

FAMILY COURT OF AUSTRALIA

SALMON & MARIN (NO 3) [2011] FamCA 766

FAMILY LAW – Case guardian appointed for wife/mother – Application for a stay of further steps in the proceedings pending the outcome of a notice of appeal by the wife/mother to the Full Court – Stay granted

APPLICANT: Mr Salmon

RESPONDENT: Ms Marin by her Case Guardian Mr N

FILE NUMBER: BRF 3924 of 2003

DATE DELIVERED: 5 September 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O'Reilly J

HEARING DATE: 5 September 2011

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person (On this application)

THE RESPONDENT’S CASE GUARDIAN: Mr N

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lyons

THE INDEPENDENT CHILDREN’S LAWYER:

Ms Hawdon

Forest Glen Lawyers

Orders

IT IS ORDERED

1. Pending the outcome of Ms Marin’s appeal by Notice of Appeal filed 12 August 2011 there be a stay as to any and all procedural steps towards trial or final orders in this matter, in relation to both parenting and property matters, and in relation to the payment of the case guardian’s costs.

IT IS NOTED that publication of this judgment under the pseudonym Salmon & Marin (No 3) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 3924 of 2003

MR Salmon

Applicant

And

MS Marin by her case guardian Mr N

Respondent

REASONS FOR JUDGMENT

1. On 15 July 2011, I determined that a case guardian should be appointed for Ms Marin and ordered that Mr N, Solicitor, be appointed as the case guardian:  see the order and reasons for judgment of that date. 

2. On 12 August 2011, Ms Marin filed a Notice of Appeal against that order. 

3. I am dealing now with Ms Marin’s application in a case filed 30 August 2011 for a stay of that order. 

4. Effectively, a stay cannot occur in relation to the appointment because there is no executory element. The order appointing Mr N thus will stand unless and until it be set aside on appeal. 

5. I interpret that Ms Marin’s application for a stay is one for a stay of any step in the proceedings pending the outcome of the appeal. 

6. I am cognisant of the principles concerning such a stay application. 

7. In particular, I am cognisant of the circumstance that if a stay of any step in the proceedings pending outcome of the appeal not be granted so that the matter should proceed to final parenting orders, and/or a final property order, the result of any successful appeal by Ms Marin would be rendered nugatory.

8. The reason for appointing a case guardian in the first place renders academic whether the appeal may have some substance. 

9. The husband and the children will not suffer procedural or other prejudice if a stay is granted. 

10. The balance of convenience favours it. 

11. In those circumstances, I will order, pending the outcome of Ms Marin’s appeal by notice of appeal filed 12 August 2011 there be a stay as to any and all procedural steps towards trial or final orders in this matter in relation to both parenting and property matters and in relation to the payment of the case guardian’s costs.

12. The effect of that order will be that unless and until Mr N’s appointment as case guardian is set aside by the Full Court, he will remain case guardian, but his function will be inert with no obligation on him to do anything in the matter until outcome of the appeal.  If, however, before determination of the appeal there are any matters concerning the children or the parties’ property which require urgent interim attention by the Court, such matters may proceed with Mr N acting as Ms Marin’s appointed case guardian. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 5 September 2011.

Associate:     

Date:              6 September 2011