Appointment of Litigation Guardian Sought to be Dismissed by Wife

Eastman & Pellis [2021] FCCA 1358 (18 June 2021)

Wife and newly appointed lawyers sought the removal of his litigation guardian in a case for property division.  The case dismissed such application of the wife due to unimproved brain condition and sufficiency of steps taken. 

Facts:

Wife and husband dispute the conduct of a complex property division.  Mr BB, the legal representative of the wife, filed an application seeking a litigation guardian, Mr Morton, due to his concerns regarding the capacity of the wife, who had acquired a brain injury in 2010, to provide adequate instructions.  Both Mr Morton and Mr BB halted the progress of the litigation in October 2020 legal correspondence was received from the wife’s newly appointed lawyers, Beek & Gallagher Legal, informing them that they had instructions to take over the file and make an application for the removal of Mr Morton.

Issue:

Whether or not the litigation guardian should be removed.

Applicable law:

Analysis:

Mr Morton and Mr BB were taking the necessary steps in the circumstances to complete the implementation of the final property orders made by consent in September 2019 since the wife was sufficiently updated regarding the implementation of the court orders. 

Conclusion: 

The Court ordered that the application filed by Beek & Gallagher Legal be dismissed.  The wife has not exhibited that her condition and behavioral issues have improved.