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Litigation guardians in family law

By March 30, 2020February 23rd, 2024No Comments

A case involving a litigation guardian is snaking its way through the family courts, with a woman wishing to appeal a decision to appoint a litigation guardian to her, but failing in her application for an extension of time in her appeal, because only litigation guardians are able to start applications in a case. So who are litigation guardians exactly?

A ligation guardian is an adult who acts in court for a child or person with an incapacity that renders them incapable of making decisions in their own best interests. In some states they are referred to as ‘case guardians’. Minors are taken to require a litigation guardian unless a court orders otherwise. Essentially, a litigation guardian steps into the shoes of a party to a proceeding if they lack legal capacity on their own to manage their affairs.

Litigation guardians are often family, friends or carers–even if someone lacks capacity to conduct legal proceedings, they can still have enough capacity to choose their preferred guardian. However, litigation guardians must be appointed by a court.

A litigation guardian’s main functions are to deal with education and training issues, who the person should associate with, and to start or defend legal proceedings on their behalf (other than those relating to their estate which are a function of their executor and trustee).

Under the Family Law Rules and Federal Circuit Court Rules, courts can appoint litigation guardians if they meet a number of criteria, including: being an adult, with no interest in the case adverse to the party’s interests, who is able to be fair and competently conduct the case, and who consents to being a litigation guardian.

Sometimes courts appoint people who are not personally known to the party; in such cases, the litigation guardian has to familiarise themselves the incapacitated party’s life and assess their best interests.

Once appointed, a litigation guardian is bound by court rules and has to do everything necessary to be done by the party in their stead and in their interests. This also means obtaining legal advice and considering proposals to resolve the matter, including attempting Alternative Dispute Resolution where possible.

In the case which the courts have pseudonymised as Gallanders & Gallanders, an application in an appeal was sought by a self-represented woman who had had a litigation guardian appointed to her. She was appealing orders including the one appointing the litigation guardian and had brought an application in the appeal for an extension of time to appeal.

But the appeal court said that once a litigation guardian had been appointed, only that litigation guardian could start an application, and therefore this application for an extension of time had to be dismissed.

It remains to be seen if the woman proceeds with her appeal intentions in time without having been granted the extension. It’s not clear what her reasons are for wanting the litigation guardian dismissed, but the litigation guardian is apparently staunchly opposed to any appeal to the order appointing them—and despite not being in accordance with her wishes, it must be in her best interests.

You can read the entire case here.

If you need help with a family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not family law advice. For information on how to obtain the correct family law advice, please contact Alliance Family Law.


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