L is for litigation guardian – A-Z of Family Law

It is no secret that Australia has an ageing population. This, combined with the ever-increasing number of applications within the family law courts, suggests that the number of parties to a family law dispute who may not have capacity to conduct proceedings will increase.

The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Rules’) allows for parties to appoint litigation guardians, essentially being persons who may take over the conduct of proceedings on behalf of a person. It is important to note that while this person may be the person appointed under a power of attorney, they may not necessarily be.

Part 3.5 of the Rules governs litigation guardians, with the key involvements being that a litigation guardian:

• is needed by a person if they don’t understand the nature and consequences of proceeding or is incapable of conducting proceedings/giving instructions (Rule 3.12)
• must do anything required under the Rules by a party (Rule 3.13)
• must be an adult, have no interest adverse to that of the person needing a litigation guardian, and can fairly and competently conduct the proceedings (Rule 3.14)
• may only be appointed if a person has filed an affidavit of consent (Rule 3.15(3)).
• may be appointed by an application by a person, by a court on its own initiative, or be removed by the court or by a withdrawal of consent (Rule 3.15)
• may be the ‘manager of the affairs of a party’ i.e. a power of attorney, with such person being entitled
• must give notice to all other parties (Rule 3.17)
• will generally have their expenses paid by a party of the income or assets of the person who they are appointed for (Rule 3.18)

The decision of Mullins & Sawyer [2025] FedCFamC2F 117, by Judge Symons of Division 2 of the Federal Circuit and Family Court of Australia, involved a contested application for the appointment of a litigation guardian.

The de-facto husband, aged 85, required someone to be appointed to help him during the proceedings against his de-facto wife, aged 68.

The de-facto husband’s power of attorney, Ms C, applied to be his litigation guardian. Medical evidence, by way of a report from a doctor, was disclosed that substantiated the need for the de-facto husband to have such a person appointed.

However, the de-facto wife strongly opposed Ms C acted in this role.

Whilst Ms C submitted that she was an appropriate person to act and did not have any adverse interests, the de-facto wife instead filed material and made submissions that:

• Ms C was intrinsically involved in the de-facto husband’s various entities, holding positions such as member, shareholder, and director;
• Ms C had financial interests within some of these entities, including funds owed to her (or her own entities) by the de-facto husband’s entities;
• Ms C had made many decisions over the years that may have been the subject of evidence and scrutiny during further evidence, which may jeopardize her role.

The parties each submitted a variety of judgments in support of their respective positions.

Ultimately, Judge Symons found the continuance of Ms C as litigation guardian to be untenable given primarily, Rule 3.14(b): Ms C could not say that she had no interest in the proceedings that were adverse to the de-facto husband. In fact, the mere existence of concurrent shareholdings, directorships, and membership of a self-managed super fund between Ms C and the de-facto husband grounded this finding, without reference to the existence of loans owed to Ms C.

An order was therefore made that Ms C be removed as the de-facto husband’s litigation guardian, as well as orders that the parties attempt to reach agreement about a suitable substitute, in the absence of which the President of the QLD Law Society could seek the nomination of a suitable legal practitioner to be appointed litigation guardian.

The decision of Mullins & Sawyer can guide similar applications in the future, in that:

1. Medical evidence must be on hand in relation to a person requiring the appointment of a litigation guardian.

2. The mere fact that a person is the power of attorney (‘manager of affairs’) of another person does not guarantee their appointment as litigation guardian.

3. A degree of independence and impartiality from the proceedings should be able to be established by a litigation guardian, at least from a financial perspective.