APPOINTMENT OF A CASE GUARDIAN SOUGHT FOR DISABLED PARTY
CROSS & CROSS
FAMILY COURT OF AUSTRALIA
[2020] FamCA 454
This case concerns an Application in a Case filed by the husband’s solicitors seeking orders appointing a case guardian to act on his behalf in property proceedings.
FACTS:
The solicitors for Mr. Cross (the husband) filed an Application seeking orders appointing a case guardian to act on his behalf in a property proceedings between him and Ms. Cross (the wife).
The husband is a person with disability. The husband is incapable of conducting or giving adequate instruction for the conduct of the case.
ISSUE:
Whether or not the Court should appoint a case guardian for the husband.
HELD:
A child or a person with a disability may start, continue, respond to, or seek to intervene in, a case only by a case guardian. [1] This rule is mandatory that, once the Court determines that a person has a relevant disability which impacts upon his ability to conduct the proceedings, the matter may continue only by way of a case guardian being appointed.
The Court found that the husband falls within the parameters of a person with a disability; it held that it was necessary to determine who should be appointed as his case guardian. A person may be a case guardian if the person:
(a) is an adult;
(b) has no interest in the case that is adverse to the interest of the person needing the case guardian;
(c) can fairly and competently conduct the case for the person needing the case guardian; and
(d) has consented to act as the case guardian. [2]
Having regard to the Affidavit of Mr B, the Court was satisfied that he met those criteria set out in the Rules, and accordingly made orders appointing Mr B as the case guardian for the husband.
[1] R 6.08 of the Family Law Rules 2004.
[2] Ibid, R 6.09.