Case Guardians in Family Law Proceedings

30 October 2020

By Genevieve Smit

Family law clients can develop situational mental health conditions because of the breakdown of their de facto relationship or marriage. In some cases, family law clients may have pre-existing health (including mental health) conditions that affect their ability to conduct their family law case. In both circumstances, it may be appropriate for a Case Guardian to be appointed to act on behalf of a person in a family law case.

When can a Case Guardian be appointed?

Case Guardians are required in circumstances where a person cannot understand the nature and possible consequences of their family law case and that the person is incapable of conducting the case (rule 6.08 Family Law Rules).

A person’s ability to understand the nature and possible consequences of their family law case or their ability to conduct their family law case can be impacted by ongoing physical and mental effects of family violence. 

How is a Case Guardian appointed?

To have someone formally appointed as Case Guardian in a family law matter, an application to the Family Court of Western Australia will be required. 

The application could be opposed by the other party and, therefore, it is necessary to lead evidence demonstrating why the appointment of a Case Guardian is necessary.  This typically includes detailed medical evidence.

What are the powers and functions of a Case Guardian?

If appointed, a Case Guardian can only act on a person’s behalf in a family law case.  A Case Guardian does not have the ability to manage all financial affairs for the person, as would be the case if an attorney were appointed by way of Power of Attorney.

According to rule 6.13 of the Family Law Rules, a person appointed as a Case Guardian in family law proceedings:

  1. is bound by the Family Law Rules (in the same way that the client would ordinarily be bound by those rules.  This also extends to the rules concerning disclosure);
  2. must do anything required by the Family Law Rules to be done by the client;
  3. may, for the client’s benefit, do anything permitted by the Family Law Rules to be done by the client; and
  4. can seek consent orders (including consent orders to resolve the matter on a final basis).

The person appointed as Case Guardian must take all necessary measures for the benefit of the client (Rhodes v Swithenbank (1889) 22 QBD 577), i.e. “to conduct litigation and provide appropriate instructions to do so” (Kannis and Kannis (2003) FLC ¶93-135 at p 78,261).

Costs risks for Case Guardians

Being appointed a Case Guardian involves some risks, including in relation to costs.  This arises because the Case Guardian is responsible for the costs of the:

  • legal practitioner acting for them/the person for whom s/he is appointed as Case Guardian unless there is express agreement to the contrary; and
  • other parties in the litigation if an order is made against the Case Guardian (Ex parte Brocklebank (1877) 6 Ch D 358).

What next?

If you have been asked to be someone’s Case Guardian, you should obtain detailed legal advice as to the scope of the role and your responsibilities before agreeing to the appointment.

Alternatively, if you know someone who is having difficulty understanding the consequences of their ongoing family law matter or who, for any reason, is unable to conduct their own family law case, they may need a Case Guardian.

We’re Here to Help

Family law matters can be difficult and complex. If you require any assistance with a family law dispute, always contact a legal practitioner who will be able to help.

O’Sullivan Davies has practitioners experienced in acting for Case Guardians or in having necessary discussions as to whether a Case Guardian is required. More information about our services can be found at our About Us page here.

Disclaimer

This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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