Catilin McGrath
Why a litigation guardian may be needed?
Family law disputes come in all shapes in sizes. For instance, one marriage can be for a period of approximately forty years and another marriage for a period of eighteen months.
Taking this into consideration, a party embroiled in a family law dispute may not have capacity to instruct their lawyer for a variety of reasons including but not limited to a degenerative disease such as dementia or a traumatic brain injury. In these instances, the Federal Circuit & Family Court of Australia (Family Law) Rule 2021 (“FCFCOA Family Law Rules”) provides Rules which facilitates litigants, who may be disadvantaged to a mental impairment to have a litigation guardian.
What does a litigation guardian do?
A litigation guardian is an adult who acts in Court for a person that’s mental impairment would otherwise render them incapable of making decisions on their own behalf. The appointment of a litigation guardian and their role is evident in Part 5 of the FCFCOA Family Law Rules.
Rule 3.14 of the FCFCOA Rules enable a person to be a litigation guardian in a proceeding if a person is an adult, has 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 who requires the litigation guardian.
Rule 3.15 provides the parties embroiled in family law proceedings to apply for a litigation guardian for them or, alternatively the Court can appoint, remove or substitute a litigation guardian. A litigation guardian could be a member of family or a lawyer. Should you be uncertain as to who would be a suitable litigation guardian, the Court can make a request that the Attorney-General appoint a person to be a litigation guardian. Payment of the Litigation Guardians can be made by way of a Court Order from a party or from the income or assets of the party which the litigation guardian is appointed.
The appointment of a litigation guardian is a serious responsibility, which is not to be taken lightly. The role of the litigation guardian includes, however is not limited to, giving instructions to a solicitor in respect of the preparation of Court documents and offers exchanged during the proceedings, as well as attending court dates and mediations. The litigation guardian must act in the party’s best interests and must comply with the FCFCOA Rules, failing which the Court could terminate the litigation guardian’s appointment.
For advice or representation in any family law matter, feel free to contact us on 42 222 666 or by email at hansons@hansonslawyers.com.au