Litigation Guardian


Sometimes a party in litigation is not able to act for themselves, either through mental health issues or other circumstances. The Court procedures allow for the appointment of a third party to act in place of the litigant who cannot act on their own behalf.


There are two circumstances in which a third person can be appointed to be a litigation guardian:

  1. Where the person requiring the litigation guardian does not understand the nature and possible consequences of the proceedings; or
  2. Where the person requiring the litigation guardian is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceedings.

A person under 18 years of age is also taken to need a litigation guardian unless the Court orders otherwise.

A person may be appointed as a litigation guardian if they are an adult and have no interest in the proceeding adverse to the interest of the person needing the litigation guardian.

Oliver v Gall

In the 2008 decision of Oliver v Gall, the Wife filed an Application for the appointment of a litigation guardian to act on her behalf. The Wife had had difficulty focusing and responding properly to questions during a conference with her solicitor and senior counsel, causing them concern that she may not have the capacity to give instructions. The Wife’s psychologist provided a report in which she determined that the Wife was suffering from post- traumatic stress disorder and was incapable of giving evidence in the proceedings. However, her report did not address whether or not the Wife had capacity to give adequate instructions for the conduct of the proceedings.

A second report was obtained from a psychiatrist which provided that the Wife was suffering from post-traumatic stress disorder, together with major depression and anorexia nervosa. His view was that the Wife would not be able to withstand the rigours of adversarial Court proceedings and stated that she could not be relied upon to provide sensible instruction to legal counsel acting on her behalf.

The Federal Magistrate decided that the evidence was sufficient to establish that, on the balance of probabilities, the Wife was not capable of giving adequate instruction for the conduct of the proceedings and ordered that a litigation guardian be appointed.

Somerville & Somerville (No 2)

In this case, the Court had to determine whether a personality disorder was sufficient to require the mother to appear via the litigation guardian. The Court stated the general principles as follows:

  1. There is a presumption of competence unless and until the contrary is proven, that is, there is a presumption that a litigant of full age is competent to manage his or her affairs.
  2. When it is alleged the person is incompetent, the onus of proof is on the person so asserting.
  3. The decision as to capacity rests with the Court but it will generally be guided by medical evidence. The Court found that while it was unwise to generalise, the mere fact that a person suffers from a personality disorder does not necessarily mean that they meet the criteria set out in Rule 11.01(1) of the Federal Circuit Court Rules.

For more information

Oliver v Gall [2008] FMCAfam 164

Somerville & Somerville (No 2) [2014] FCCA 2439

Federal Circuit Court Rules 2001 (Cth) rules 11.08-11.15

Family Law Rules 2004 (Cth) rules 6.08A-6.14

In the Family Court, a litigation guardian is called a case guardian.


This article reflected the state of the law at the time of publication. But the law is a living creation which is constantly changing and adapting. These articles should be treated as an information resource only and not as a substitute for specific legal advice in respect to your particular problems and circumstances.

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