In some situations a person is not physically or mentally well enough to take part in family law proceedings in Australia’s Federal Circuit and Family Court of Australia (FCFCOA), lacking the capacity to manage their case or instruct legal representatives. The elderly, the disabled and the chronically ill are examples of people who may require a litigation guardian.
In such cases, as a measure of last resort, a ‘litigation guardian’ may be appointed in their place. The guardian is empowered to do anything for the benefit of the litigant that they would be ordinarily allowed to do in the proceedings. In matters heard by the FCFCOA, the need for a litigation guardian may arise in family law matters such as divorce, child custody, or property settlements.
This article looks more closely at how a litigation guardian is appointed in FCFCOA proceedings.
When is a litigation guardian needed?
Firstly, it’s important to note that the Court begins with the presumption that a person does not require a litigation guardian unless there is evidence to prove otherwise. Where a person does not understand the nature or consequences of the court proceedings, or cannot conduct their case or give instruction to legal representatives for how the case should be conducted due to some incapacity, then a litigation guardian may be necessary. It should also be noted any person under the age of 18 requires a litigation guardian.
Who can be a litigation guardian – and the appointment process
Those who are eligible to be a litigation guardian are:
- an adult;
- persons who have no interest in the proceeding adverse to the interest of the person needing the litigation guardian, and;
- persons who can fairly and competently conduct the proceeding for the person needing the litigation guardian.
A person who is a guardian of another person under state legislation – known as ‘a manager of the affairs of a party’ – is entitled to be the litigation guardian provided the party does not understand the proceedings, or is not capable of conducting the proceedings.
If a suitable person is not available to serve a party as a litigation guardian, the Court may request that the Federal Attorney-General appoint a person to be a manager of the affairs of the party to then act in the role.
A litigation guardian is appointed through an application to the Court by an incapacitated litigant, or through the Court’s own initiative. The application can be made either before proceedings begin or during the course of the matter, and must be supported by an affidavit setting out the facts as to why the party needs a litigation guardian. The person seeking appointment as the litigation guardian must also provide an affidavit consenting to the appointment. The court considers the circumstances of the litigant and may appoint a family member, friend, or professional guardian.
Once appointed, the litigation guardian must provide notice of their appointment to other parties and any independent children’s lawyer. The Court may also make orders about the payment of the costs and expenses of the litigation guardian.
Responsibilities of a litigation guardian
The litigation guardian must at all times act in the best interests of the incapacitated party as their paramount duty. This duty extends to both the legal strategy pursued during the proceedings and decisions related to settlement negotiations. Courts closely scrutinize the actions of litigation guardians to ensure that they align with the wellbeing of the person they represent.
For elderly or unwell litigants, the guardian must be acutely aware of the party’s potential cognitive impairments, health-related issues, and emotional vulnerabilities. The guardian must work closely with the litigant, legal representatives, and healthcare professionals to ensure a comprehensive understanding of the individual’s needs and preferences.
Clear and effective communication is paramount when acting as a litigation guardian for elderly or unwell litigants, maintaining open communication with the litigant, legal representatives, and other relevant stakeholders. In family law matters, the role of a litigation guardian becomes particularly complex. Decisions related to child custody, spousal support, and property settlements require careful consideration of the individual circumstances of the incapacitated party. The guardian may need to collaborate with family members, healthcare professionals, and financial advisors to make informed decisions.
Litigation guardians must also diligently adhere to court procedures and deadlines – from diligent filing of necessary documents, attending court hearings, and participating in mediation or settlement conferences. Failure to meet these requirements can have serious implications for the case and the wellbeing of the incapacitated party.
Termination of a litigation guardian
The court has the authority to review and, if necessary, terminate the appointment of a litigation guardian. This may occur if there are concerns about the guardian’s ability to act in the best interests of the incapacitated party or if the circumstances that led to the appointment have changed.
Seek expert legal advice
Acting as a litigation guardian in the FCFCOA for litigants unable to conduct their case is a challenging yet essential role. Particularly for elderly or ill litigants, the guardian must not only understand the legal complexities of the case but also navigate the litigant’s unique needs and vulnerabilities.
The guidance and advice of experienced family lawyers can be absolutely crucial in the appointment of a competent litigation guardian who protects and manages the litigant’s best interests. At Felicio Law Firm our expert team can provide you with the right advice if you need a litigation guardian to represent you at the FCFCOA to ensure your case proceeds as smoothly as possible.
