For many, the stresses of everyday life are having a significant toll on one’s health and well-being. Juggling the demands of children, partners, peers, work and indeed government mandates during a global pandemic, can seem exhausting and never-ending. And what happens if separation and divorce are added to the mix? There are an increasing number of marriage breakdowns but the pressure people are put under as a result, can cause additional health issues.
Mental illness is one such health issue that will often strike us at our most vulnerable times and separation can be one such vulnerable time. The emotional and psychological turmoil of being part of family law proceedings may render some people unable to make difficult decisions regarding their matter or else impact their treatment and recovery.
The good news is that support is available for anyone who is going through this right now. One can apply to the court for the appointment of a litigation guardian – a person appointed by the court to manage and conduct proceedings on behalf of someone else. The litigation guardian can help remove those extra stressors that leave someone incapable of making important decisions. The pressure is relieved and the person knows they are being supported.
This article looks at when a litigation guardian is necessary, who may be appointed, the procedure for appointment and the functions and powers of a litigation guardian.
WHEN IS A LITIGATION GUARDIAN REQUIRED?
A person needs a litigation guardian where they: (i) do not understand the nature and possible consequences of a proceeding; or (ii) are not capable of adequately conducting the proceeding or giving adequate instructions.
In addition, a person may be appointed a litigation guardian where they might otherwise benefit from one, such as for reasons of sickness or ill health. For example, in Palmer & Palmer, (  FamCAFC 9) the wife applied for the appointment of a litigation guardian in her appeal in circumstances where she had some months earlier suffered from a stroke. In making the appointment, the Full Court relied on a letter from her treating doctor which read:
“ Although [the wife] has capacity to understand her legal rights and give verbal instructions, she may benefit from an appointment of a litigation guardian due to physical incapability and severe mental distress due to the stress of the court case. In her current condition, her stress of giving instructions may jeopardise her rehabilitation and recovery.”
The court applies the presumption that a litigant is competent until the contrary is proved. It is therefore necessary for the person seeking the appointment to demonstrate that they lack capacity, which is usually satisfied by obtaining medical evidence from that person’s treating doctor or specialist. Evidence from an allied health practitioner, such as a psychologist, will usually be insufficient, but there are exceptions to this as in the case of Carchar & Hbenum ( FamCA 569 ).
WHO MAY BE APPOINTED?
A person may be appointed as a litigation guardian in a proceeding if the person is: (i) an adult; (ii) has no interest in the proceeding adverse to the person needing a litigation guardian; and (iii) can fairly and competently conduct the proceeding.
There is little judicial authority on the meaning of the phrase “fairly and competently”. It is typically taken to have a similar meaning to the phrase “fit and proper person” which was dealt with by Toohey and Gaudron JJ in the infamous Bond Media case ( HCA 33) as follows:
“The expression ‘fit and proper person’, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of ‘fit and proper’ cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.”
In White & Green ( FamCA 237) the Family Court rejected the father’s application for a review of the registrar’s decision to appoint the maternal grandfather as the mother’s litigation guardian. Here, Cronin J made the following observations as to the meaning of the phrase “fairly and competently”:
“ The second of the two complaints of the husband revolves around the words in Rule 6.09 “fairly and competently”. However, those words relate to the conduct of the case for the wife, not for the Court nor for the husband and wife generally. “Fairly” means acting in a way which is free from bias, dishonesty or injustice. There is little doubt that the case guardian has a poor view of the conduct of the husband. Whether that is justified is a matter for a trial judge to determine when the evidence is properly tested. A significant dispute which I cannot determine is whether the husband still has a significant drug problem which in the normal course of events may militate against him having the responsibilities of parenthood. The husband’s view is that any drug problem that he has had in the past is now gone and he has a responsible employment position in Singapore. In my view, the responsibility of the case guardian is to act fairly towards the wife and in a competent way. That must mean the case guardian takes into account what is best for the wife from a subjective point of view knowing all of the facts. It would be absurd for example, if a litigant without a case guardian was required to act without bias because each litigant sees their case through their own subjective eyes.”
A person who is a manager of the affairs of a party is entitled to be the litigation guardian in any proceeding to which the person’s authority extends. Whilst undefined in the Family Law Rules and the relevant state and territory acts, this has been understood by the court to be a public trustee appointed to manage the affairs of a person or their power of attorney.
A litigation guardian is preferably a relative or friend of the family. The court must have regard to whether the proposed litigation guardian holds the trust and confidence of the person to whom they are appointed. Where neither a friend nor a family member is available, it will usually be necessary for the applicant to seek an appointment from the public trustee.
It is possible for a parties’ lawyer to be appointed as a litigation guardian, however, this is something of a last resort as a lawyer is regarded as having an interest adverse to that of the party (i.e., they derive their fees from the perpetuation of proceedings). In Willshire & Willshire, the Full Court considered an appeal by the husband – who suffered from paranoid schizophrenia – for the removal of his lawyer as litigation guardian on the grounds that he had capacity to conduct his proceedings. In dismissing the husband’s application, the Full Court lamented the unwillingness of the public trustee to step-in as his litigation guardian, stating:
“ We cannot leave this appeal without commenting on the circumstance of the husband’s own solicitor being appointed as the case guardian. That is highly unusual and indeed concerning, but it was brought about by the absence of any other person or any relevant entity or authority to take up the appointment. A request had been made by the registrar to the Attorney-General pursuant to Rule 6.11 of the Family Law Rules but no nomination had been made.
 Unfortunately it is a common occurrence for there to be no person, entity or authority available to take such an appointment. Presumably for State entities such as Public Trustees or Public Advocates it is a question of costs, but they are the obvious choice to take up such an appointment where there is no available alternative.
 It would be highly desirable, in our view, if the Attorney-General was able to initiate discussions for arrangements between the Commonwealth and State Governments which provide for a suitable case guardian to be appointed for a person in the position of the husband here where there is no alternative available. It is entirely unsatisfactory that the husband’s own solicitor should be placed in the position where he is appointed as the husband’s case guardian. They have entirely different roles in the conduct of litigation.”
A friend, relative or power of attorney, however, may fall foul of the statutory requirement of being able to conduct proceedings fairly and competently. In Grace & Grace, ( 14 Fam LR 33) the husband suffered from complications following neurosurgery that left him severely incapacitated. His mother – his carer and power of attorney – applied to be appointed as his litigation guardian. She had a history of legal and personal conflict with the wife following the parties’ separation and was also a director and shareholder of two of the husband’s companies that were the subject of the proceedings. Significantly, she also gave evidence that the conflict between herself and the wife was, “no more or less than the – conflict that existed between [my] son and his wife prior to his operation…”.
In upholding the registrar’s decision not to appoint the mother due to her adverse interest and ill-will towards the wife, Ross-Jones J stated:
“If I am wrong in the conclusion that it is also necessary that the mother should have no interest in the proceedings adverse to the husband, I adopt the views of the learned editors of the CCH Australian Family Law and Practice Reporter that the next friend should have nothing to gain personally from the litigation, which requirement the mother may possibly breach being involved in at least two of the relevant companies, one as a director and the other as a director and shareholder. Secondly, the next friend should not bear any malice or ill-will towards the other party, which I do not believe to be the situation in the present proceedings. Finally, there should not be any factor present which might influence the next friend to act from any other motive than doing the best for the person under disability and I am not satisfied that the mother can or could control her own feelings towards the wife to such an extent that they would not intrude into or distort her thought processes when considering her son’s best interests. I do not have the requisite degree of confidence that the mother could act as impartially as a next friend should.”
In most proceedings, there must be a court order for the appointment of a litigation guardian, the exceptions being: (i) if a person is authorised by the Attorney-General (supported by an affidavit of consent); or (ii) the person is a manager of the affairs of the party (also supported by an affidavit of consent). An order may be sought by way of consent orders, an application in a proceeding or even orally.
An application can be made simultaneously with the commencement of proceedings or at a later point in the proceedings. An application must be supported by an affidavit from the proposed litigation guardian consenting to the appointment, together with a notice of address for service. The application may be sought by the person in need of a litigation guardian, by a third party (e.g., the proposed litigation guardian), or otherwise the order may be made by the court on its own initiative.
Evidence should be filed regarding a parties’ capacity (usually medical evidence), as well as evidence that the litigation guardian has no interest adverse to the person in need of a litigation guardian and that they can conduct the proceeding fairly and competently (the latter can usually be dealt with in the affidavit of consent). It is also a good idea for the affidavit of consent to address: (i) an acknowledgement by the proposed litigation guardian of their obligations and their potential liability for costs; and (ii) details of their likely costs (if any) and how these will be paid.
FUNCTIONS AND POWERS
A litigation guardian is required to take all necessary measures for the benefit of the person for whom they are appointed. They are responsible for the costs of the legal practitioner and are liable for any adverse costs order, although they are indemnified from the estate of the person to whom they are appointed.
A litigation guardian may not profit from the appointment. A professional person appointed as a litigation guardian, however, may be paid professional fees if the court orders it.
Regarded as an “officer of the court”, a litigation guardian is bound by the Family Law Rules, including the overarching obligation and duty of disclosure.
Litigation guardians are not often seen in the context of family law proceedings but at times it is critically important to have someone navigating this pathway. If a client is unable to advocate for themselves, a litigation guardian is an acceptable option that should be considered. Doolan Wagner Family Lawyers has experience working with litigation guardians and understands how their role can help overcome the risks and delays associated with a client’s incapacity, as well as in facilitating the court’s overarching purpose – the just resolution of proceedings as efficiently and inexpensively and efficiently as possible.
About the Authors:
Oliver Lacey is an Associate at Doolan Wagner Family Lawyers. Currently undertaking a Masters in Applied Law (Family Law), Oliver has a special interest in complex parenting and property matters, with significant experience in protracted disputes.
Connect with Oliver on LinkedIn
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