Stellard and Dresdon-Stellard - [2010] FamCA 971

FAMILY COURT OF AUSTRALIA

STELLARD & DRESDON-STELLARD

[2010] FamCA 971

FAMILY LAW – PROCEDURE – Case guardian appointed for the wife

Family Law Rules 2004 Rules 6.08, 6.09

APPLICANT:

Mr Stellard

RESPONDENT:

Ms Dresdon-Stellard

FILE NUMBER:

BRC

5986

2008

DATE DELIVERED:

22 October 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O’Reilly J

HEARING DATE:

22 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Selfridge

SOLICITOR FOR THE APPLICANT:

Reardon Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr James

SOLICITOR FOR THE RESPONDENT:

Buchanan Legal

Orders

IT IS ORDERED

Case guardian

The necessity for the wife to file a response to the husband’s application in a case filed 8 June 2010, paragraph 2, to oppose the appointment of a case guardian for her but to seek that if one be appointed it be JS is dispensed with.
Pursuant to Rule 6.09 of the Family Law Rules 2004 JS is appointed case guardian for the wife in these proceedings provided that by 4.00pm on Friday 29 October 2010 he has caused to be filed in the Court a written consent to act.
If by that time and date no such written consent by Mr JS has been filed then Peter Sheehy, Solicitor, is appointed case guardian for the wife in these proceedings, with this order to operate as a self executing order.

Balance of wife’s application in a case filed 28 May 2010 and balance of husband’s application in a case filed 8 June 2010

The balance of the wife’s application in a case filed 28 May 2010 and the balance of the husband’s application in a case filed 8 June 2010 otherwise are dismissed.

Husband’s application in a case filed 5 October 2010

The husband’s application in the case filed 5 October 2010 be listed for hearing at 10.00am on Thursday 9 December 2010 before the Honourable Justice O’Reilly.
The parties discuss and endeavour to resolve the subject matter of that application and if consent orders are able to be reached forward them to the Associate by email.

Court documents for the wife

The solicitors for the wife, by arrangement with the Registry Manager, may be provided by the Court, at the usual Court cost, copies of filed documents in the proceedings, as well as orders and reasons.

Costs

The costs of the parties in relation to the applications filed 28 May 2010 and 8 June 2010 are reserved to the trial judge.

IT IS NOTED that publication of this judgment under the pseudonym Stellard & Dresdon-Stellard is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5986 of 2008

MR STELLARD

Applicant

And

MS DRESDON-STELLARD

Respondent

REASONS FOR JUDGMENT

Application

The husband applies by application in a case filed 8 June 2010, par 2, that a case guardian be appointed for the wife in these proceedings. His solicitors have obtained the written consent to act of Peter Joseph Sheehy, Solicitor.
The wife opposes that a case…

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 Stellard and Dresdon-Stellard

Details

AGLC: Stellard and Dresdon-Stellard [2010] FamCA 971
Case: [2010] FamCA 971
Decision Date: 22 October 2010

CaseChat Overview and Summary

In the matter of *Stellard and Dresdon-Stellard*, O’Reilly J considered applications by both the husband and wife. The wife had filed an application on 28 May 2010, and the husband had filed applications on 8 June 2010 and 5 October 2010. The proceedings involved the appointment of a case guardian for the wife and the dismissal of certain applications.

The primary legal issues before the court were whether a case guardian should be appointed for the wife, and if so, who that guardian should be. The court also had to determine the fate of the balance of the applications filed by both parties on 28 May 2010 and 8 June 2010, and how the husband's application filed on 5 October 2010 should proceed.

O’Reilly J dispensed with the necessity for the wife to file a formal response opposing the appointment of a case guardian, but ordered that JS be appointed as case guardian for the wife, provided he filed a written consent to act by a specified date. If JS did not consent, Peter Sheehy, Solicitor, was to be appointed as case guardian, with that order operating as a self-executing order. The court then dismissed the balance of the wife’s application filed on 28 May 2010 and the balance of the husband’s application filed on 8 June 2010. The husband's application filed on 5 October 2010 was listed for hearing on 9 December 2010, with the parties directed to endeavour to resolve the subject matter of that application by consent orders. The costs of the applications filed on 28 May 2010 and 8 June 2010 were reserved to the trial judge.

Orders

Orders of the court

IT IS ORDERED

Case guardian

The necessity for the wife to file a response to the husband’s application in a case filed 8 June 2010, paragraph 2, to oppose the appointment of a case guardian for her but to seek that if one be appointed it be JS is dispensed with.

Pursuant to Rule 6.09 of the Family Law Rules 2004 JS is appointed case guardian for the wife in these proceedings provided that by 4.00pm on Friday 29 October 2010 he has caused to be filed in the Court a written consent to act.

If by that time and date no such written consent by Mr JS has been filed then Peter Sheehy, Solicitor, is appointed case guardian for the wife in these proceedings, with this order to operate as a self executing order.

Balance of wife’s application in a case filed 28 May 2010 and balance of husband’s application in a case filed 8 June 2010

The balance of the wife’s application in a case filed 28 May 2010 and the balance of the husband’s application in a case filed 8 June 2010 otherwise are dismissed.

Husband’s application in a case filed 5 October 2010

The husband’s application in the case filed 5 October 2010 be listed for hearing at 10.00am on Thursday 9 December 2010 before the Honourable Justice O’Reilly.

The parties discuss and endeavour to resolve the subject matter of that application and if consent orders are able to be reached forward them to the Associate by email.

Court documents for the wife

The solicitors for the wife, by arrangement with the Registry Manager, may be provided by the Court, at the usual Court cost, copies of filed documents in the proceedings, as well as orders and reasons.

Costs

The costs of the parties in relation to the applications filed 28 May 2010 and 8 June 2010 are reserved to the trial judge.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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