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When is a case guardian appointed?

In circumstances where a party to family law proceedings is unable to act for themselves, either due to mental health issues or other circumstances which impact their capacity, the Court has procedures in place that allow for the appointment of a third party to act on behalf of that person.

The Family Court and the Federal Circuit Court use different terminology for this third party. The Family Court Rules 2004 (Cth) refer to the party as a “case guardian” and the Federal Circuit Court Rules 2001 (Cth) refer to the party as a “litigation guardian” however they both perform the same role.

A case guardian will be appointed on behalf of a party to Family Court proceedings when:

(a)   The person does not understand the nature and possible consequences of the proceedings; or

(b)   The person is not capable of adequately conducting, or giving adequate instructions for the conduct of the proceedings.

In order to be appointed a proposed case guardian must meet the following requirements:

(a)   is an adult;

(b)   has no interest in the case that is adverse to the interest of the person requiring the case guardian;

(c)   can fairly and competently conduct the case for the person requiring the case guardian; and

(d)   has consented to act as the case guardian.

In many circumstances a case guardian is usually a family member or friend and their role is to conduct the litigation of a matter. In doing so the case guardian is required to provide instructions to the incapacitated person’s lawyer and in certain circumstances may be liable to pay any adverse costs orders made in the case. A case guardian is also required to obtain proper legal advice in relation to the nature of the application before the Court and carefully consider any proposed settlement offers.

It is also important to note that the Court, of its own discretion may appoint, remove or substitute a case guardian at any stage during family law proceedings.

If you have any questions regarding the appointment of a case guardian in family law proceedings please do not hesitate to contact Nicholes Family Lawyers who have extensive experience in this area of the law.


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