Family Law Proceedings – What happens when one party does not have mental capacity to act for themselves or instruct Solicitors to act

30/08/2018

In most cases, married couples or de facto partners participating in family law property settlement negotiations or proceedings in the Family Court or the Federal Circuit Court of Australia will be able to make decisions on their own behalf and to properly instruct their legal representatives in relation to all matters pertaining to the settlement or conduct of the case.  These processes will result in either Consent Orders being approved or the matter being conducted through to a Final Hearing before a Judge.

In some cases however one of the spouses or de factor partners may not have or may lose the capacity to properly understand what is occurring or lose the capacity to provide proper and considered instructions to their legal representative

What happens when one party lacks the capacity to look after their own interests?

The Family Court or the Federal Circuit Court of Australia would appoint a person as a Case Guardian.

The Family Court or the Federal Circuit Court will appoint a Case Guardian in circumstances where:

1.        The person does not understand the nature or possible consequences of the proceedings; or

2.        The person is incapable of adequately conducting, or giving adequate instructions for the conduct of the proceedings.

In order to be appointed a person who is proposed as the Case Guardian must meet the certain requirements which are:

(a)       Must be an adult.

(b)       Must have no interest in the case that is adverse to the interest of the person.

(c)       Can fairly and competently conduct the case for the person requiring the appointment of a Case Guardian.

(d)      Is prepared to act as Case Guardian and has consented to act as Case Guardian.


Who could be a Case Guardian?

In most cases the Case Guardian is a family member or friend.

The Case Guardian would be required to provide instructions to the person’s Lawyer but must also have regard to the possibility of there being costs orders made in the matter.  There is an obligation on the Case Guardian to obtain proper legal advice in relation to the conduct of any proceedings and the appropriateness of any settlement or offer made by the other party to the proceedings.

The Family Court/Federal Circuit Court of Australia can at its discretion, appoint a Case Guardian or can remove/replace a Case Guardian at any time.

If you have any concerns or queries concerning the possible appointment of a Case Guardian in proposed or current family law proceedings please telephone Richard Watson Senior Family Law Solicitor or his assistant Shereen Da Gloria to discuss your concerns.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.

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