Marin & Salmon 2013 FamCAFC 88

A judge drew attention to Rule 6.08(1) of the Family Law Rules 2004 that provided for a person with a disability due to a physical or mental disorder to be represented by a case guardian if an adult lacks decision making capacity as the person (a) does not understand the nature and possible consequences of a case, and (b) is not capable of adequately conducting a case or giving adequate instructions for the conduct of a case (capacity to decide).

An ICL and father both made applications for a case guardian to be appointed for the mother after the mother dispensed with her lawyer, but these applications were dismissed.  The mother did not attend assessments to consider her capacity.  The judge stayed hearings until the matter was resolved.

The judge received information that the mother had been diagnosed with a delusional disorder of a persecutory type, with symptoms of continuous suspiciousness and that she lacked insight.  The judge found that the mother’s comments in court were unintelligible, her thought processes meandered from one topic to another, she made persecutory accusations, and she was unable to focus on issues under discussion.  The judge found that the mother was not capable of adequately conducting her case.

The mother appealed the ruling.  The appeal court found that the mother failed to establish any grounds for the appeal and the appeal was dismissed.