Palmer & Palmer 2009 FamCAFC 9

A lawyer for a wife applied for a case guardian to be appointed so that a hearing could be re-opened and further evidence presented.  The wife had suffered a stroke resulting in loss of power to the right side of her body.  The wife was hospitalized and was participating in rehabilitation that was expected to take three months, and some permanent disability was expected.

A case guardian means a person appointed by the court to manage and conduct a case for a child or a person with a disability and includes a next friend.

A person with a disability means a person who, because of a physical or mental disability:

(a) does not understand the nature or possible consequences of the case; or

(b) is not capable of adequately conducting, or giving adequate instruction for the conduct of, the case.

The Court found that, although the wife has capacity to understand her legal rights and to give verbal instructions (capacity to decide), she may benefit from an appointment of a temporary litigation guardian due to physical incapability and severe mental distress to manage the stress of a court case. In her current condition, it was considered that the stress of giving instructions might jeopardise her rehabilitation and recovery.