Case guardians and the Family Court – the impact of mental health issues and disabilities

Case guardians and the Family Court – the impact of mental health issues and disabilities

14 July 2020 Authored by: Craig Turvey   |   Topics: Family law

Mental health issues are a common roadblock to parties finalising their family law matter. Clients sometimes ask whether a case guardian can be appointed for their ex in the hope this will push the matter towards a resolution. There is a presumption that parties involved in Family Court proceedings are competent. Accordingly, there needs to be medical evidence showing that a party is unable to understand the nature and possible consequences of the case, or of adequately conducting the case or providing adequate instructions to their lawyer.

When can someone apply for a case guardian?

Rule 6.08 of the Family Law Rules 2004 (Cth) provides that ‘a person with a disability’ may be involved in court proceedings only by a case guardian.

‘A person with a disability’ is defined as someone who, because of a physical or mental disability:

  • does not understand the nature or possible consequences of the case; or
  • is not capable of adequately conducting or giving adequate instruction for the conduct of the case.

Therefore, only one of those two conditions need to be met for a case guardian to be appointed.

For example, in a recent matter I was involved in, the respondent in Family Court proceedings understood what the proceedings were about. However, due to various mental health problems, he was incapable of instructing his lawyer and the matter was not progressing. A case guardian was appointed as one of the two conditions was satisfied.

What factors does the Family Court consider?

The Family Court typically considers the following factors when determining a case guardian application:

  1. Whether a physical or mental disability of itself is sufficient to establish the appropriateness of the appointment. In Genesalio v Genesalio [2019] FamCAFC 85, a case guardian was appointed for the husband because he had a physical disability and was not capable of adequately conducting the proceedings.
  2. Past psychiatric evidence when assessing a party’s capacity (if they are unwilling to undergo a new psychiatric examination and assessment). For example, in Salmon v Marin (No 2) [2011] FamCA 664, the Court considered the mother’s historical psychiatric evidence from five years earlier because she refused to complete a new psychiatric examination and assessment.
  3. Other medical evidence to rebut the presumption of the party’s competence.
  4. Recent decisions made by the party. For example, in Cassell v Cassell [2015] FamCA 1070, the husband’s depression and anxiety were insufficient to establish the requisite incapacity because about four months earlier he had the capacity to execute a power of attorney.
  5. The complexity of the proceedings. In Cassell v Cassell, the Court considered that there was very little to be determined in the property proceedings, which were unlikely to be complex.

In almost every case, the Family Court requires medical evidence regarding the disability.

Who can apply for a case guardian?

Under rule 6.10 of the Rules, ‘a person’ can apply for the appointment of a case guardian. It is a broad definition and includes a party to the proceedings or a person seeking to be made the case guardian.

In practice, it is typically the lawyer for the party suffering from a disability or mental health issue who makes the application; although the opposing party can do so as well.

Who can be a case guardian?

Rule 6.09 of the Rules provides that someone can be a case guardian if they:

  • are an adult
  • do not have an interest in the case adverse to the interests of the party needing the case guardian
  • can fairly and competently conduct the case
  • have consented to act as the case guardian.

If someone is appointed as case guardian, they effectively make decisions in the proceedings as though they are that party.

If the party suffering from the disability makes the case guardian application, you do not have any control over who they nominate for the role; although you can oppose their choice if they do not meet all the above conditions.

However, if you make the application or you are negotiating with the other party about who the case guardian should be, think about answers to these questions:

  • Does the party hold a power of attorney appointing someone to act for them and is that person appropriate for the role? Sometimes the person appointed as attorney has a long professional history with the party and they may be too enmeshed in their financial affairs, particularly if they act as the person’s accountant.
  • Are there any family members of the party whom you trust and whom you think will be reasonable when negotiating with you?
  • Is it best for a solicitor with considerable experience in these types of matter to act as case guardian? Keep in mind that they will charge for their work performed and, over the course of a matter, the fees could be significant.


Applying for a case guardian for a party in Family Court proceedings is not a straightforward process. Medical evidence is needed to show that the party is unable to understand the nature and possible consequences of the case, or of adequately conducting the case or providing adequate instructions to their lawyer. Careful consideration also needs to be given to the person appointed to act as the case guardian.

If you are involved in Family Court proceedings and have any concerns about your capacity or that of the other party, please contact me or one of the other family lawyers in our team.



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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.