A case guardian, referred to as a litigation guardian in the Federal Circuit Court, may be appointed to conduct a case on behalf of a party to a family law matter where a party is unable to act for themselves.
The role of a case guardian is to provide a legal representative with the instructions necessary to conduct the family law litigation where the client is not capable of doing so themselves.
Generally, a person who is a manager of the affairs of a party is taken to be appointed as case guardian of the party if the person has filed a Notice of Address for Service, filed an Affidavit which provides evidence that the person has been manager of the affairs of the party and consents to the appointment as the case guardian (Rules 6.10(2) & 6.08A, Family Law Rules 2004 (Cth).
However, a party only requires a case guardian if he or she suffers from a relevant disability. The dictionary to the Family Law Rules 2004 (Cth) provides that a person with a disability in relation to a case means a person who, because of a physical or mental disability:
a. does not understand the nature or possible consequences of the case; or
b. is not capable of adequately conducting or giving adequate instruction for the conduct of the case.
Recent Case Law
In Genesalio & Gesalio , an application was made in appeal proceedings by the husband’s brother that he be appointed case guardian for the husband. There was no suggestion that the husband suffered any mental disability but it was found that the husband, who suffered various medical conditions, including heart disease and kidney disease.
The Family Court of Australia on appeal found that although there was no very recent medical evidence available to the Court, that it was open to the Court to find that the stress and anxiety that the husband would feel in having to appear in the appeal proceedings and conduct his case himself had the possible consequence of the husband suffering a heart attack or having to be hospitalised. The Court therefore found that the husband suffers from a disability that prevents him from adequately conducting the appeal proceedings so that a case guardian was required in that regard.
The Wife opposed the application with her submissions including that the husband’s brother has an adverse interest to the husband as they each had interests in certain trusts and real estate. The Court held that it could not yet be known whether the husband and his brother would take a united position or different positions in the property settlement proceedings regards the trusts and properties. The answer may depend upon whether or not the husband’s brother was made a party to those proceedings. That could only be determined as the property settlement proceedings developed.
However, the Court took the view that the husband’s brother had no adverse interest to the husband’s interest in the appeal proceedings. Those appeal proceedings concerned only an appeal by the husband against a costs order and an appeal against an order that the wife have sole use and occupation of the former matrimonial home. The Court also found that the husband’s brother could “fairly and competently” conduct the case for the husband as his case guardian (Rule 6.09 (c) Family Law Rules 2004 (Cth)).
The husband’s brother was appointed case guardian of the husband but limited to the appeal proceedings.