Litigation Guardians, Part 1 – Overview

Litigation Guardians – A Four Part Series: Overview, Appointment, Costs and Access.

Part 1 – Overview

To paint a picture, let’s start with a fictional fact scenario.

James and his partner, Melanie, separate and soon after, James is dismissed from work. These significant changes to James’ life severely impact his mental health, including thoughts of self-harm and a short term stay in a mental health hospital. He is diagnosed with clinical depression for which he is under the care of a psychiatrist and psychologist. He is prescribed medication which has side effects including brain fog and cognitive impairment.

Weeks pass and despite Melanie’s insistence to agree to a property settlement, James is too unwell to turn his mind to it.

Melanie engages a lawyer who writes to James, but James is unable to act. Two months pass and James is served with Court documents initiating proceedings.

James’ sister, Pam, is worried about him and decides to take action. Together, they meet with a family lawyer.  During the meeting he is visibly unable to follow along or make any sort of meaningful decision about how to proceed.

This scenario illustrates the necessity for  litigation guardians in Court proceedings and their critical role in advocating for the interests of those unable to do so themselves.

In the above scenario, most lawyers would recognise that James is unable to follow the lawyer’s explanation and advice, consider his options or provide cogent instructions for a path forward  and thus it is necessary to find someone who can do so on his behalf, such as Pam.

With regard to this fact scenario and more broadly, we will aim to answer the following questions over four parts:

Part 1 – Fortunately for James, he has Pam to lean on for help, but is Pam able to be appointed as James’ litigation guardian?

Part 2 – What steps must James, his lawyer and Pam take to appoint Pam to the role of litigation guardian?

Part 3 – What are the barriers that people like James can face when trying to appoint a litigation guardian?

Part 4 – In the absence of someone to act in their interests such as a family member, close personal friend or previously prescribed representative outside of Court proceedings, such as a legal guardian, where could James turn to find such assistance?

1. Overview of the role of litigation guardians

What are the conditions that must be met to be appointed litigation guardian?

For Family Law purposes, litigation guardians may be necessary for individuals unable to understand the proceedings and possible consequences or unable to satisfactorily conduct or give instructions for proceedings themselves.[1]

A litigation guardian, while not a party to the proceedings, conducts the proceedings on behalf of the relevant individual and must ensure that all necessary steps are taken to advocate for that individual’s interests.[2]

There are four requirements that must be met before a potential litigation guardian can be appointed, namely that the nominated person:

1. Is an adult;
2. Has no interest in the relevant proceedings;
3. Is capable of conducting the proceedings on behalf of the individual; and
4. Has consented to the appointment.[3]

Once these four conditions are met, the Court (namely, the Federal Circuit and Family Court of Australia) can appoint a litigation guardian either upon request of a party or its own direction.[4]

Note: This is general information only and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters, please contact us on 03 9620 0088 or email info@resolveconflict.com.au

[1] Federal Circuit and Family Court Of Australia (Family Law) Rules 2021 (Cth) r3.12(1) (‘FCFCOA Rules’).

[2] Read v Read [1944] SASR 26, 28 & 29 quoted in Kannis & Kannis (2003) FLC 93-135, 78,261.

[3] FCFCOA Rules r3.14(a), r3.14(b), r3.14(c) & r3.15(3).

[4] FCFCOA Rules r3.15(2).