Case Guardians are individuals who are appointed to assist those whose capacity to understand the consequences of proceedings comes into question, or where a client is unable to give instructions. Case Guardians step into that persons shoes and do all things to act in their best interests and make decisions on their behalf.
So who can be a Case Guardian? According to the Family Law Rules, a person may be appointed as a Case Guardian if the person:
- Is an adult;
- Has no interest in the case which is adverse to the interest of the person needing the case guardian;
- Can fairly and competently conduct the case for the person needing the case guardian; and
- Has consented to act as the case guardian.
The case of Green and Ors [2009] noted that the phrase “fairly and competently” closely mirrored the meaning of “fit and proper”. It was deemed that to act “fairly” was to embody an approach which was “free from bias, dishonesty and injustice”. Though, it was noted that Case Guardians are to do so through a lens of subjectivity, as they are advocating what they believe is in the best interests of their litigant.
The appointment of a Case Guardian is normally dealt with by way of Court Order, whether requested by a party through an Application in a Case, or by the Court. A party requesting a Case Guardian to be appointed must establish why a Case Guardian may be needed.
The party bringing an Application must prove that the individual requiring the Case Guardian has a sufficient physical or mental disability, or that the individual is under the age of 18 and does not possess adequate understanding of the consequences of litigation.
As noted in Green and Ors [2009], the Case Guardian must also be an individual who can act fairly and competently conduct the case, in addition to having no adverse interests in the matter.
Just as parties may put forward an Application to have a Case Guardian appointed, Applications may also be made seeking the removal of a Case Guardian. An Application for removal may be made by any party with an appropriate interest or standing in the matter. These parties may include the Case Guardian, opposing party, legal practitioner for the person with the disability, or a relative or friend of the person with a disability who has a proper interest in protecting the person with a disability.
Circumstances for the removal of a Case Guardian include but are not limited to:
- Person reasons of the Case Guardian, including poor health or a failure to properly carry out their duties;
- Where a child may attain the age of 18 years and no longer require a Case Guardian to represent them;
- Where the person with a disability recovers and no longer requires the assistance of a Case Guardian;
- Where the Case Guardians lacks the necessary objectivity, or rather, where they are not deemed to be acting “fairly and competently”; or
- Where the case guardian is acting contrary to the interests of the person disability, or where they have acted improperly during litigation.
If you have any queries in relation to the above, or wish to speak to a friendly member of our family law team, please do not hesitate to contact our office 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.
