Mental or Physical Incapacity – Who looks after my Matter?

09 FEB 2022


Through the course of an individual’s family law matter, they will be required to provide their solicitors, if represented, with instructions as to how they wish to conduct their matter. These instructions represent the wishes and views of the individual, and ensures that the position being put forward to the other party and to the Court are genuine and reflective of the individual.

But what happens if, throughout the course of litigation, a client becomes mentally or physically impaired and is unable to provide instructions, or engage in their matter to the extent required of them?

The answer to this question lies in the appointment of what is known as a ‘Litigation Guardian’. A litigation guardian is an individual who is appointed to act on behalf of a client in circumstances where they are unable to conduct their matter due to some form of incapacity, whether it be physical or mental. The litigation guardian effectively makes all of the decisions with respect to the matter. The intention of the appointment is for the wishes of the incapacitated individual to be reflected in the decision making of the litigation guardian.

The litigation guardian is bound by the same rules and expectations as their party. The litigation is able to advance positions and conduct the matter in the interests of the party they are representing. 

A person may be a litigation guardian if they are an adult, have no interest in the proceeding which is adverse to the person in need of the litigation guardian, and they are able to fairly conduct the proceeding for the person in need of the guardian.

But what happens when the Court believes the appointed litigation guardian isn’t acting in the best interests of the person in need of the guardian? This was explored in the recent decision of Remington [2021] FedCFamC2F 99. This was a parenting matter which concerned an 11 month old child.

In this particular matter, the mother of the children required the assistance of a litigation guardian. The mother had been diagnosed with various cognitive impairments, and there were existing orders from the South Australian Civil and Administrative Tribunal which appointed the mother’s mother and sister (Ms E) as guardians.

The maternal grandmother sought orders for the child to live with her, and for the maternal grandmother to have sole parental responsibility. The maternal aunt participated as the ‘legal guardian’ of the mother. The father of the child was not party to these proceedings as his whereabouts was unknown. 

The Court found no issue with the mother needing assistance to conduct her matter. However, the Court noted that the maternal aunt was not a suitable candidate to be the mother’s litigation guardian. A report from the Department for Child Protection revealed that there had been some police involvement between the mother and the maternal grandparent and maternal aunt.

Judge Kari expressed that “The issue however is that … the maternal aunt appears to have an interest in the litigation that is adverse to that of the mother”, the reason being that “Ms E has advised the court … that she supports the application of the maternal grandmother”, and that the report from the Department for Child Protection “… makes it clear that Ms E and the maternal grandmother work together to manage the competing obligations that they have towards the mother and the care of the child”.

Judge Kari did not think it was appropriate for Ms E to be appointed as the litigation guardian as a result of this, despite the orders made by the South Australian Civil and Administrative Tribunal given the conflicting interests of the maternal aunt.

If you wish to speak about the appointment of a litigation guardian, or any other aspect of your family law matter, please contact our friendly team on (02) 4626 5077.

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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