Call our lawyers
now
or,
have our lawyers
call you
Litigation Guardians and Family Law
Updated on Oct 13, 2022 • 3 min read • 385 views • Copy Link
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 (Federal Circuit and Family Court (Family Law) Rule 3.14)
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?
A person requires a litigation guardian if they do not understand the nature of the proceeding or are not capable of conducting, or giving instructions, for the conduct of the proceeding. A minor is presumed to need a litigation guardian unless the court orders otherwise (Rule 3.12).
Appointment of litigation guardians
A person may apply to be appointed a litigation guardian. If no suitable person is available to be appointed, the court may request the Attorney-General to nominate a litigation 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 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 that 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 fulfils 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.
Michelle Makela
National Practice Manager
Michelle Makela is a Legal Practice Director at Go To Court Lawyers. She holds a Juris Doctor, a Bachelor of Science (Psychology) and a Master of Criminology. She was admitted to practice in 2006. Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.
Affordable Lawyers
Our Go To Court Lawyers will assist you in all areas of law. We specialise in providing legal advice urgently – at the time when you need it most. If you need a lawyer right now, today, we can help you – no matter where you are in Australia.How It Works
1. You speak directly to a lawyer
When you call the Go To Court Legal Hotline, you will be connected directly to a lawyer, every time.
2. Get your legal situation assessed
We determine the best way forward in your legal matter, free of charge. If you want to go ahead and book a face-to-face appointment, we will connect you with a specialist in your local area.
3. We arrange everything as needed
If you want to go ahead and book a fact-to-face appointment, we will connect you with a specialist in your local area no matter where you are and even at very short notice.
Related Law Topics
Parental Abduction and Taking Children Overseas
Parents should think twice before taking their child overseas without first getting permission from the child’s other parent. A number of legal restrictions are in place to prevent a child leaving Australia without the consent of both parents. Even if you are only planning a short holiday, it is important ....
Posted in:
Children
Parenting Matters in Brisbane In Brisbane, the Federal Circuit Court and Family Court at North Quay in the CBD deal with family law disputes about who has care of and legal responsibility for children. These are also known as parenting matters. In parenting matters in Brisbane the court makes orders ....
Posted in:
Children
Gender Dysphoria and the Family Court
Gender Dysphoria and the Family Court In 2017, the father of a 16-year-old known as Kelvin applied to the Family Court to be allowed to progress Kelvin’s treatment for Gender Dysphoria to Stage 2. Gender Dysphoria is the condition where a person experiences distress as a result of their gender ....
Posted in:
Children
Separation can often lead to an increase in spousal and parental conflict. The Federal Circuit and Family Court of Australia can help with family disputes when the parties are unable to agree privately. However, the court should not be the first port of call for families experiencing conflict. The parties ....
Posted in:
Children
Property
Coping With Christmas after a Separation
Christmas comes loaded with emotion. The kids love the thought of Santa and gifts, unwrapping presents, food and staying up late. The parents love the kids loving Santa and gifts, unwrapping presents, and catching up with friends and family and food and drink and too much of all of those, ....
Posted in:
Children
Subpoenas in Family Law Matters
When information is needed from a third party relating to the subject of legal proceedings, a party may issue a subpoena for that information to be provided to the court. There are three types of subpoenas: a subpoena for production, a subpoena to give evidence, and a subpoena for production ....
Posted in:
Children
Court Processes
Writing an Affidavit: The Dos and Don’ts
An affidavit is a sworn statement filed in court as evidence in a court proceeding. It may be filed by a party to the proceeding or by a witness. An affidavit is different to a statutory declaration, which is also a sworn statement, but which is not used as evidence in ....
Posted in:
Children
Final Parenting Orders - The Rule in Rice v Asplund (1979)
What are final Parenting Orders? Final Parenting Orders are Family Law Orders that detail the parenting arrangements for a child or children, which remain in force until the child turns 18. Final Orders can be made by a judge after hearing evidence and submissions by the parties, or by consent ....
Posted in:
Children
Calculating Child Support The Child Support (Assessment) Act 1989 (Cth) imposes a duty on a parent to maintain their children in the form of child support payments. Child support is sometimes referred to as child maintenance and is an ongoing payment made by one parent or guardian to another to ....
Posted in:
Children
Family Violence Allegations During Parenting Cases
Family Violence Allegations During Parenting Cases Family violence is an important factor to consider when parties are applying to the court for parenting orders. Family violence allegations may be made at any stage in a parenting case so the question of how they should be dealt with is a complicated one. ....
Posted in:
Children
Adoption in Western Australia is regulated by the Adoption Act 1994. Adoption is a permanent legal arrangement, finalised by a court order, that cuts the child’s legal ties with their birth family. Parental responsibility is given to the adoptive parent/s and the adopted child becomes a full member of the adoptive family. ....
Posted in:
Children
Family Law Western Australia
Adoption is the permanent transfer of legal rights and responsibilities for a child from a child’s biological parents to adoptive parents. The process severs the legal relationship between birth parents and their child. In the Northern Territory, the Adoption of Children Act 1994 governs the adoption process. This article explains ....
Posted in:
Children