Family law proceedings often involve personal and complex issues which can become complicated when one party is unable to fully participate in proceedings. In these situations, the Court relies on the appointment of a litigation guardian to ensure that the person’s interests are properly represented and protected. A litigation guardian plays a vital role in maintaining fairness and safeguarding the integrity of the legal process for vulnerable individuals. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”), largely govern the role and appointment of a litigation guardian.
Who needs a Litigation Guardian?
The Rules provide that a litigation guardian is required where a person:
- Does not understand the nature and possible consequences of the proceedings; or
- Is not capable of adequately conducting or giving adequate instruction for the conduct of the proceeding.
Common reasons that a party may require a litigation guardian include age, illness, disability or other factors affecting their ability to understand and participate in the legal process.
In the case person under the age of 18 who is a party to proceedings they will be deemed to require a litigation guardian unless the court orders otherwise.
Who can be a Litigation Guardian?
To be considered a suitable person to act as a litigation guardian, the person must:
- Be an adult.
- Have no interest in the proceeding adverse to the person requiring representation.
- Be capable of fairly and competently conducting the proceeding.
In cases where it has been determined that a Litigation Guardian is required and enquiry will need to be made as to the identity of an appropriate individual who is willing to act in that role.
Unfortunately, in some instances, such as the case of Rainger & Cadis [2023] FedCFamC2F 591, a suitable person could not be identified, notwithstanding that a clear need had been demonstrated.
How is a person appointed as a Litigation Guardian, and once appointed, can they be removed?
- A person may apply for the appointment, replacement, or removal of a litigation guardian.
- The Court may act on its own initiative or at the request of a party.
- The Court may appoint, remove, or substitute a litigation guardian at any stage of proceedings.
This flexible approach allows the court to respond to changing circumstances, particularly where concerns arise about the suitability of an existing guardian.
The decision in Thorn v Thorn [2017] FamCA 950 provides important guidance on the approach of the Court to these appointments. This case highlights:
- The court adopts a cautious approach when appointing a litigation guardian.
- A proposed litigation guardian must not have an adverse interest—this would breach Rule 3.14(b).
- Even a potential or perceived conflict can be enough to prevent appointment.
Litigation guardians play a critical role in ensuring access to justice for those who cannot represent themselves. Given the legal and practical complexities involved, obtaining early legal advice is essential when issues of capacity arise in family law matters.
Written by
Olivia Brennan
Family Law Solicitor
It is also important to speak to a family lawyer first. We have experienced solicitors in Newcastle area that can help you through your family law matter.
We offer a fixed fee initial consultation from $330. Simply Contact one of our friendly staff members to make an appointment.
