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Litigation Guardians and Family Law

When a party to litigation does not have the capacity to instruct their own lawyer, because they are below the age of 18 or because they are mentally impaired, a litigation guardian is appointed by the court to give instructions on that party’s behalf. Litigation guardians step into the shoes of the party who lacks capacity and give instruction based on their assessment of the party’s best interests.

Who can be a litigation guardian?

A litigation guardian must:

  • Be an adult;
  • Have no interest in the case that is adverse to the interest of the person needing the litigation guardian;
  • Be able to fairly and competently conduct the case;
  • Consent to being a litigation guardian (Family Law Rule 6.09, Federal Circuit Court Rule 11.10)

In practice, litigation guardians are often family members, friends or carers. If none of these people is available the court may appoint a person who does not personally know the person requiring a litigation guardian. The appointed person is then required to familiarise themselves with the person’s circumstances and provide instructions with their best interests in mind.

Who needs a litigation guardian?

Federal Circuit Court

In matters in the Federal Circuit Court, a litigation guardian is required where a party does not understand the nature or possible consequences of the proceeding or cannot adequately conduct the proceeding. A minor is taken to require a litigation guardian unless the court orders otherwise. (Federal Circuit Rule 11.08).

Family Court

Under the Family Law Rules, a litigation guardian in the Family Court is referred to as a ‘case guardian’. In the Family Court, a person who is a child or otherwise lacks capacity may only start, continue, respond to ,or intervene in proceedings by a case guardian. However, this rule does not apply if the court is satisfied that a child understands the nature and possible consequences of the case and is capable of conducting their own case.

Appointment of litigation guardians

A person may apply to be appointed a litigation guardian or case guardian. If no suitable person is available to be appointed, the court may request the Attorney-General to nominate a litigation guardian or case guardian. The court may also appoint a litigation guardian of its own motion. It may also remove or substitute a litigation guardian.

Once a litigation guardian or case guardian has been appointed, they must give written notice of their appointment to all the other parties to the proceedings.

Duties of a litigation guardian

Once a person has been appointed as a litigation guardian or case guardian, the person is bound by the court rules and must do everything required to be done by the party. They may also do anything which the party may do for the benefit of the party.

The litigation guardian must obtain proper legal advice and carefully consider any proposed resolution of the matter. This may include participating in alternative dispute resolution

Costs

The court may order that the costs of the litigation guardian be paid by a party or from the income or property of the person for whom the litigation guardian is appointed.

Service

Documents which are required to be served on a party who has a litigation guardian must be served on the person’s litigation guardian or, if no litigation guardian has been appointed, on a person who is eligible to be the person’s litigation guardian under the court rules. If there is no one who fulfills either of those criteria, on an adult who has the care of the person, including a person in charge of a hospital or nursing home that has the care of the person.

If you need legal assistance with a family law matter or any other legal matter, please contact Go To Court Lawyers.

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