Litigation guardians and the Federal Circuit and Family Court – the impact of mental health issues and disabilities

Mental health issues are a common roadblock to parties finalising their family law matter. Clients sometimes ask whether a litigation 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 Federal Circuit and 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 proceeding, or of adequately conducting the proceeding or providing adequate instructions to their lawyer.

When can someone apply for a litigation guardian?

Rule 3.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides that a person needs a litigation guardian in court proceedings if that person:

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

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

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

What factors does the Federal Circuit and Family Court consider?

The Federal Circuit and Family Court typically considers the following factors when determining a litigation 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 litigation 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 Federal Circuit and Family Court requires medical evidence regarding the disability.

Who can apply for a litigation guardian?

Under rule 3.15(1) of the Rules, ‘a person’ can apply for the appointment of a litigation guardian. It is a broad definition and includes a party to the proceedings or a person seeking to be made the litigation 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 litigation guardian?

Rule 3.14 of the Rules provides that someone can be a litigation guardian if they:

• are an adult
• have no interest in the proceeding adverse to the interests of the party needing the litigation guardian
• can fairly and competently conduct the proceeding for the person needing the litigation guardian

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

If the party suffering from the disability makes the litigation guardian application, the other party does 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 litigation 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 litigation guardian? Keep in mind that they will charge for their work performed and, over the course of a matter, the fees could be significant.

Summary

Applying for a litigation guardian for a party in Federal Circuit and 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 proceedings, or of adequately conducting the proceedings or providing adequate instructions to their lawyer. Careful consideration also needs to be given to the person appointed to act as the litigation guardian.

If you are involved in Federal Circuit and 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.