Family Law: Litigation guardians

What is a litigation guardian?

A litigation guardian is a person who acts on behalf of a party when that party is unable to conduct their own litigation due to mental or physical disability. A litigation guardian stands in the place of the party, and makes all the decisions about the conduct of the proceedings.

A person who is appointed as a litigation guardian must comply with all the obligations that the party would have under the Family Law Rules in the proceedings, and may do anything for the benefit of the party that the party would be ordinarily allowed to do in the proceedings.

The decision to seek to appoint a litigation guardian should not be taken lightly and should be considered as a last resort.

When does a person need a litigation guardian?

A person needs a litigation guardian if they do not understand the nature and possible consequences of the proceeding, or is not capable of adequately conducting, or giving adequate instruction for the conduct of the proceedings.

A person must be able to understand the following, in order to be able to conduct their own litigation:

  • that they are making a claim for an order from a court
  • the order they are seeking and the grounds on which they are seeking the order
  • that before the Court can make an order, it must be satisfied of the existence of certain facts, and that the Court can only be so satisfied if, there is placed before the Court, admissible evidence the Court is satisfied proves such facts
  • where the claim is likely to be defended, the grounds on which the claim is to be defended
  • if it is proposed that they will be legally represented, that they will incur expenses in retaining legal representation and the amount that is likely to be charged
  • that they may not succeed in obtaining the order they seek, and
  • where the claim is likely to be contested, that there is a risk the Court will not grant the orders they claim and they may be ordered to pay the opponent’s costs.

There is a presumption that an adult does not need a litigation guardian unless there is evidence that proves otherwise. How the Court decides whether a person requires a litigation guardian will vary from case to case. The Court will often (but not always) need medical evidence to decide whether a person needs a litigation guardian.

Unless the Court others otherwise, any party who is under the age of 18 must have a litigation guardian.

Who can be a litigation guardian?

A person may be a litigation guardian if they:

  • are an adult
  • have no interest in the proceeding adverse to the interest of the person needing the litigation guardian, and
  • can fairly and competently conduct the proceeding for the person needing the litigation guardian.

A person who is authorised by a law to conduct legal proceedings in the name of or for a person who needs a litigation guardian (such as person who has been made a person’s guardian under state legislation) is known as ‘a manager of the affairs of a party’.

If the proceedings are within the authority of the manager of the affairs of a party, they are entitled to be the litigation guardian (provided the party needs a litigation guardian i.e. they do not understand the proceedings, or are not be capable of conducting the proceedings).

If a person is in need of a litigation guardian, but a suitable person is not available, the Court may request that the Attorney-General appoint a person to be a manager of the affairs of the party (and then act as litigation guardian).

How is a litigation guardian appointed?

A litigation guardian can be appointed on application to the Court by a party, or on the Court’s own initiative.

Where there is a ‘manager of the affairs of a party’ (being a person who is authorised by a law to conduct legal proceedings in the name of or for a person who needs a litigation guardian), the manager becomes the litigation guardian by filing an affidavit consenting to being the litigation guardian for the party.

Where there is no manager of the affairs of a party, an order from the Court for the appointment of a litigation guardian must be sought by filing an Application in a Proceeding. This application can be brought during current proceedings, or before proceedings have commenced.

The application must be supported by an affidavit setting out the facts relied upon in support of the application (this will typically include why the party needs a litigation guardian). A person becomes a litigation guardian by filing an affidavit consenting to the appointment.

Upon being appointed as the litigation guardian, that person must give notice of the appointment to each other party and any independent children’s lawyer.

The Court may also make orders about the payment of the costs and expenses of the litigation guardian.