Litigation Guardian in Family Law of Australia

A litigation guardian is frequently needed to protect the interests of children or those incapable of making decisions when handling family law cases. This role is essential to preserving their legal rights during court proceedings. This article will explore the duties of a litigation guardian in Australia’s family law system when one is required, and how they function.

Understanding this role can greatly impact the outcome of family law matters, whether you’re a parent, relative, or guardian. Let’s explore what a litigation guardian in family law is and who needs them.

What is a litigation guardian?

In Australian family law, a litigation guardian represents someone who cannot represent themselves due to age, incapacity, or disability. They ensure the individual’s legal rights and interests are protected in court, making decisions about the case and instructing solicitors.

Who needs a litigation guardian in family law cases?

• Children: Often require a litigation guardian to represent their interests in family law matters, such as custody disputes.
• Adults with Disabilities: Those who cannot comprehend the legal proceedings or communicate effectively with their family lawyer due to mental or physical disabilities may need a litigation guardian.
• Individuals with Mental Health Issues: Individuals with mental health issues that impair their ability to manage legal affairs may also require a litigation guardian.

Who can be nominated as a litigation guardian?

• Family Members: Family members over the age of 18 who have a good understanding of the individual’s needs and circumstances, such as a parent, sibling, or grandparent.
• Legal Guardians: A person who has already been legally appointed to take care of the individual’s affairs.
• Friends or Acquaintances: Someone who knows the person well, is trusted by them, and meets the court’s criteria for understanding legal processes.
• Professionals: In some cases, professionals, such as solicitors or social workers, may be appointed, especially if no suitable personal connection is available.

The court ultimately approves the nomination to ensure that the appointed guardian is fully capable and suitable to represent the best interests of the person involved in the legal matter. Always seek the advice of a professional family law solicitor for matters like this.

Also read: Enmeshment Family Law

How is a litigation guardian appointed in Australia?

A litigation guardian is appointed by the court to act on behalf of someone who cannot represent themselves in legal proceedings.

The process begins when a concerned party, such as a family member or a solicitor, recognises the need and makes a formal application to the court. The court then assesses whether the individual requires representation, considering their ability to understand the nature of the proceedings and communicate effectively.

If the court decides in favour, it appoints a suitable person — often a close relative, a friend, or a professional advocate — to serve as the litigation guardian. This appointment is designed to protect the individual’s legal interests and ensure their voice is heard and respected in the legal process.

Also read: What is a Deed of Release

What are the responsibilities of a litigation guardian?

1. Acting in the best interests of the person they represent: The primary duty is to make decisions in the best interests of the person under their guardianship, considering their wishes and preferences as far as possible.
2. Making informed decisions: The litigation guardian must gather all relevant information and seek appropriate legal advice before making any decisions on behalf of the person they represent.
3. Taking all necessary steps to protect their interests: This includes ensuring they are adequately represented in court and that their legal rights are protected.
4. Being accountable to the court: The litigation guardian is accountable to the court for their actions and decisions and must comply with all court orders and directions.
5. Avoiding conflicts of interest: The litigation guardian must not have any personal or financial interest in the outcome of the case that could conflict with the best interests of the person they represent.
6. Managing finances (if applicable): In some cases, the litigation guardian may also be responsible for managing the financial affairs of the person they represent.

The specific responsibilities of a litigation guardian may vary depending on the circumstances of the case and the specific orders of the court. However, the above points provide a general overview of the key duties and obligations of a litigation guardian in Australia.

Can a litigation guardian be paid for their services?

A litigation guardian can be reimbursed for their expenses and, in some cases, receive payment for their services.

Reimbursement of Expenses

A litigation guardian can be reimbursed for reasonable costs and expenses incurred in fulfilling their role, as ordered by the court. This may include legal fees, travel expenses, and other disbursements directly related to the case.

Payment for Services

The court has discretion to decide whether a litigation guardian should receive payment for their services and the amount of such payment. Factors considered include:

• Case complexity: More complex cases requiring greater time commitment and expertise from the litigation guardian may warrant payment for services.
• The financial resources of the parties: The court will consider the financial means of the parties involved, including the person under guardianship, when deciding on payment.

Sources of Payment

Payment for a litigation guardian’s expenses and services can come from various sources, including:

• The person under guardianship: If the individual has sufficient funds or assets, the court may order these to be used to cover the litigation guardian’s costs.
• The opposing party: In some cases, the court may order the opposing party to pay the litigation guardian’s expenses, especially if their actions necessitated the appointment.
• Public funds: In limited circumstances, public funds may be available to cover the costs of a litigation guardian, particularly in cases involving children or individuals with limited financial resources.

Also read: 6 Things Accountants Need to Know about Family Law

What happens if a litigation guardian fails their duties?

If a litigation guardian in Australia fails to fulfill their duties, there can be several consequences:

1. Removal or Replacement:

The court can remove a litigation guardian who is not acting in the best interests of the person they represent or not adequately performing their duties. A new litigation guardian will then be appointed to take over the role.

2. Personal Liability:

A litigation guardian can be held personally liable for any losses or damages suffered by the person they represent due to their failure to fulfill their duties. This can include financial losses, legal costs, and other damages resulting from the litigation guardian’s negligence or misconduct.

3. Professional Consequences:

If the litigation guardian is a legal professional, such as a lawyer, their failure to fulfill their duties could also result in disciplinary action from their professional body. This could include reprimands, fines, or even suspension or disbarment.

4. Criminal Charges:

In extreme cases, where the litigation guardian’s actions amount to criminal offences like fraud or theft, they could face criminal charges and prosecution.

5. Costs Orders:

The court may order the litigation guardian to pay the legal costs incurred by the other parties due to their failure to perform their duties. This can be a significant financial burden for the litigation guardian.

Also read: What Is Contra Proferentem? An Australian Family Law Guide

Who can take action?

Several parties can take action if a litigation guardian is failing in their duties:

• The person under guardianship: If they have the capacity, they can raise concerns with the court or seek legal advice to have the litigation guardian removed.
• Other interested parties: Family members, friends, or other individuals with an interest in the welfare of the person under guardianship can bring the matter to the court’s attention.
• The court: The court has an inherent power to supervise litigation guardians and can take action on its initiative if it becomes aware of any concerns about their conduct.

Also read: Understanding Intrafamily Adoption in Australia

Need a Litigation Guardian? Contact Justice Family Lawyers

If you or a loved one cannot represent yourselves in family law proceedings, it’s crucial to have a skilled litigation guardian by your side. At Justice Family Lawyers, we understand the sensitivity and complexity of these cases. Our experienced team is here to ensure that your legal rights and best interests are protected every step of the way.

Don’t navigate this challenging time alone; let us advocate for you. Reach out today for a consultation and secure the representation you deserve.