Litigation Guardians – A Four Part Series: Overview, Appointment, Costs and Access.
Part 2 – The Steps Required to Appoint a Litigation Guardian
Continuing on with our fictional fact scenario presented in Part 1 – Overview, Pam, James’ sister, has agreed to act as his litigation guardian.
- What is the process of appointing a litigation guardian?
What are the next steps for Pam to be appointed litigation guardian to a Family Law matter?
As stated in Part 1 – Overview, Pam must first satisfy four conditions, as follows:
- Is an adult;
- Has no interest in the relevant proceedings;
- Is capable of conducting the proceedings on behalf of the individual; and
- Has consented to the appointment.[1]
Having met these conditions, James’ lawyer must file an Application in a Proceeding to seek Orders for Pam to be appointed as litigation guardian. Pam must prepare a supporting affidavit setting out how she meets the above four conditions. Additionally, evidence of James’ lack of capacity must be provided to the Court to show there is a need for a litigation guardian to be appointed.
Ideally, James’ lawyer will be able to obtain medical evidence, such as reports or opinions from treating professionals such as James’ doctor or specialist, annexed to an affidavit from one or all of these doctors. In general, this evidence may relate to physical or mental illness.
In James’ specific circumstances, his lawyer would be best positioned to obtain an expert opinion from James’ treating psychiatrist or psychologist setting out the nature of James’ capacity, the limits of his capacity and, pursuant to Rule 3.12, to what extent he is able to:
- Understand the nature of proceedings and their possible consequences; and
- Provide adequate instructions to run the matter.[2]
The objective here is to provide sufficient evidence to the Court to enable a determination of the extent of James’ capacity and enable the Court to consider and compare that capacity with the nature and issues in dispute of his Family Law matter.
For example, in Cassell & Cassell [2015] FamCA 1070, the Husband submitted that he was not able to adequately conduct or give adequate instructions to his lawyer to run his case as a result of his depression and anxiety.
The Husband sought to appoint his brother as litigation guardian. The issue in dispute was not that the Husband’s brother was inappropriate or unable to carry out the role but rather whether the Husband was a person with a disability and thus required a litigation guardian.
In support of his application, the Husband relied on a report from his treating psychologist which, among other things, stated that the Husband was “not in a fit state to make big and complex decisions at this time”.[3]
Having reviewed the Husband’s supporting evidence, the Court turned to an analysis of the subject matter and nature of the case to determine whether the Husband was unable to conduct the case himself. In the Court’s opinion, as the modest asset pool was not in dispute and each party had proposed a division of the assets, there was little to determine and thus the case was considered unlikely to be complex.
Notwithstanding that the Husband’s supporting medical evidence failed to elaborate on what constituted “big and complex decisions”, the Husband’s application was dismissed as there was “simply insufficient evidence to meet the threshold in terms of [the Husband’s] incapacity”[4]. In other words, the Husband failed to prove that as a result of his disability, he was unable to adequately conduct his matter.
Note: This is general information only and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters, please contact us on 03 9620 0088 or email info@resolveconflict.com.au
See Part 1 – Overview, for James’ fictional scenario and an overview of this four part series. https://www.resolveconflict.com.au/litigation-guardians-part-1-overview/
[1] FCFCOA Rules r3.14(a), r3.14(b), r3.14(c) & r3.15(3).
[2] FCFCOA Rules r3.12(1).
[3] Cassell & Cassell (2015) FamCA 1070, 4.
[4] Ibid 12.
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