Litigation Guardian Stays, But Must Instruct a Solicitor: Proceedings Stayed Until a Lawyer Is On the Record

In Bongiovani & Bongiovani (No 3) [2026] FedCFamC1F 650, Jarrett J determined a show-cause application about whether the applicant's litigation guardian should be removed, or the proceeding stayed until the applicant engaged legal representation ([1]–[2]). The Full Court had already held that a non-solicitor litigation guardian has no right of audience and must act by a solicitor ([16], citing Bongiovani & Bongiovani [2026] FedCFamC1A 123 at [2]–[6]). Jarrett J was not satisfied that Ms B Bongiovani could not fairly and competently conduct the proceeding once properly advised, so she was not removed ([19]–[20]). But she cannot act as the applicant's solicitor: she must engage a solicitor on the record ([18], [20]). The proceeding was stayed until a solicitor files a notice of address for service for the applicant (Order 1; [21]–[22]). The important point is that keeping a litigation guardian in place is not the same as letting her run the case without a lawyer. All paragraph references below are to the judgment.

Why it matters: A litigation guardian who is not a solicitor has no right of audience in Division 1. Section 56(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) imports High Court r 21.08.3, which says a litigation guardian "shall act by a solicitor" ([16]). "Act by a solicitor" means a solicitor on the record who conducts the proceeding and advises the guardian — not just someone who turns up on hearing days ([18]). Competence under r 3.14(b)(ii) is assessed on the footing that proper legal advice will be obtained. Procedural missteps that show the guardian is not a lawyer do not, without more, prove she cannot fairly and competently conduct the case once advised ([19]–[20]). Until a solicitor is engaged, continuing the case would breach the guardian's duty to act under legal advice, so a stay is the orthodox response ([17], [21]).

🧩 Facts and Issues

Background

On 5 March 2026, Jarrett J dismissed an application by the applicant's litigation guardian for an order under s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth). At the same time, Ms B Bongiovani was ordered to show cause why she should not be removed as litigation guardian, or why the proceeding should not be stayed until legal representation was engaged for the applicant ([1]).
That show-cause order was stayed pending her appeal. On 9 July 2026 the Full Court dismissed the appeal, rejected any right of audience for a litigation guardian in this Court, and confirmed that a litigation guardian must act by a solicitor (Bongiovani [2026] FedCFamC1A 123 at [2]–[6]). The stay having ended, the show-cause issues returned for determination ([2]).
The underlying proceeding is a nullity application. The merits of that application were not decided here ([9], [15]).
The applicant needs some form of protective arrangement if the case is to continue, because of neurological and cognitive impairments. The live question was not whether he should have a litigation guardian, but whether Ms B Bongiovani still meets r 3.14(b)(ii) — that is, whether she can fairly and competently conduct the proceeding for him ([5]).

What each side argued

Ms B Bongiovani opposed removal. In summary she said ([6]–[7]):

she was the only person willing and able to act;
the applicant depended on her for care and decision-making, and she held his power of attorney;
she had tried, without success, to secure Legal Aid or pro bono representation, and he could not fund a private solicitor;
a stay would effectively stop him prosecuting his claim; and
she had run interlocutory applications and obtained medical evidence, so she remained capable pending representation.

The respondent supported removal, relying on alleged procedural failures ([10]–[13]):

repeated direct communications with Chambers despite directions that this was inappropriate;
submissions by email instead of through prescribed mechanisms;
an unsuccessful Notice of Appeal rejected for non-compliance;
continued assertions of a personal right to appear, contrary to binding determinations; and
alleged inconsistencies in evidence about the applicant's finances and forensic judgment.

Jarrett J treated dependence, absence of an alternative guardian, efforts to get a lawyer, and the practical consequences of removal as relevant to r 3.14(b)(ii) ([8]). Much of the material on both sides — complaints about judicial officers, bias allegations, criticisms of opposing counsel, family-violence allegations, challenges to earlier interlocutory decisions, and the merits of the nullity claim — did not assist the competence inquiry and, when pressed by the litigation guardian, tended to show difficulty confining submissions to what mattered ([9], [15]).

Issues

Does a non-solicitor litigation guardian have a right of audience, or must she act by a solicitor ([16]–[18])?
Should Ms B Bongiovani be removed under r 3.15(2) because she cannot fairly and competently conduct the proceeding under r 3.14(b)(ii) ([3]–[5], [19]–[20])?
If she remains litigation guardian but cannot appear without a solicitor, should the proceeding be stayed until a solicitor is on the record ([21]–[22])?

⚖️ Applicable Law – Legislation, Regulations, Rules

rr 3.14 and 3.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth): r 3.14 sets who may be a litigation guardian (adult; no interest adverse to the compromised party; able to fairly and competently conduct the proceeding). r 3.15(2) supplies the power to remove a litigation guardian on the court's own initiative; the show-cause process gives procedural fairness ([3]–[4]).
s 56(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth): where the Family Law Rules are insufficient, the High Court Rules are imported. The Full Court applied this pathway in Bongiovani [2026] FedCFamC1A 123 ([16]).
r 21.08.3 of the High Court Rules 2004 (Cth): a litigation guardian "shall act by a solicitor" — mandatory terms. A non-solicitor litigation guardian therefore cannot appear for the represented party at first instance or on appeal ([16]).
s 102NA of the Family Law Act 1975 (Cth): the earlier application under s 102NA(1)(c)(iv) was dismissed on 5 March 2026; that outcome is background only ([1]).
Part XIVB / s 114Q(2) of the Act: publication under a pseudonym was approved (cover notes).

📌 Precedents Relied On

The Court relied on these authorities:

Bongiovani & Bongiovani [2026] FedCFamC1A 123 at [2]–[6]: a litigation guardian who is not a legal practitioner has no right of appearance in Division 1; s 56(2) imports High Court r 21.08.3; a non-solicitor litigation guardian cannot conduct an appeal (or first-instance proceeding) personally ([16]).
Bongiovani & Bongiovani (No 2) [2026] FedCFamC1F 229: sets out the duties of a litigation guardian, including the duty to act under legal advice ([17]).
F, M v Attorney-General's Department [2013] SADC 123 at [24]: cited for the proposition that a litigation guardian must act under legal advice ([17]).
Kannis & Kannis (2003) FLC 93-135 and Sarti & Sarti [2026] FedCFamC1F 314: listed on the cover page among cases cited; not separately analysed in the numbered reasons.

🧠 Analysis

Issue

Where a non-solicitor litigation guardian has been ordered to show cause after the Full Court confirmed she has no right of audience: should she be removed for want of competence under r 3.14(b)(ii), or can she remain if she engages a solicitor — and what happens to the proceeding in the meantime?

Rule

A litigation guardian may be removed on the court's initiative if she no longer meets r 3.14, including the requirement that she be able to fairly and competently conduct the proceeding ([3]–[4]). Separately, a non-solicitor litigation guardian has no right of audience and must act by a solicitor under High Court r 21.08.3 as imported by s 56(2) ([16]). Acting by a solicitor means a solicitor on the record who conducts the proceeding and provides advice ([18]). A litigation guardian's duties include acting under legal advice ([17]). Further prosecution without that advice is contrary to those duties and can justify a stay ([21]).

Application

The Full Court closed the door on a personal right of audience

The starting point was binding Full Court authority. In Bongiovani [2026] FedCFamC1A 123, the Full Court held that although the Family Law Rules are silent, s 56(2) imports the High Court Rules where those rules are insufficient, and r 21.08.3 is mandatory: a litigation guardian "shall act by a solicitor". A non-solicitor litigation guardian therefore cannot appear for the represented party at first instance or on appeal ([16]). That holding disposed of any contention that Ms B Bongiovani could keep running the case herself.

"Act by a solicitor" means a solicitor on the record

Jarrett J spelled out what the Full Court rule requires in practice. It is "more than simply that she cannot appear whenever the application is before a court". There needs to be a solicitor on the record who is conducting the proceedings and providing advice to the litigation guardian ([18]). Combined with the duty to act under legal advice ([17]), that framed both the competence assessment and the stay.

Competence is judged once proper advice is assumed

The Court was not satisfied that, properly advised, Ms B Bongiovani cannot fairly and competently conduct the proceeding for the applicant ([19]). What the evidence showed was that she is not a lawyer and had not acted as one might expect a lawyer to act. Engaging a solicitor for the applicant, to advise him and his litigation guardian, would "probably lead to the proceedings taking a more predictable and orthodox course" ([19]). Procedural clumsiness and an inability to confine submissions to relevant matters ([9]) were therefore treated as symptoms of proceeding without a solicitor, not as proof that she fails r 3.14(b)(ii) once advice is in place ([19]–[20]).

She stays as litigation guardian — but not as the applicant's solicitor

On that footing, Jarrett J was not satisfied she fails r 3.14(b)(ii). She was not removed. But she is "not entitled to act as the applicant's solicitor" and "must engage a solicitor who goes onto the record for the applicant" ([20]). Removal and the solicitor requirement are different questions. Failing the audience rule does not automatically equal failing the competence rule.

Stay until a solicitor files notice of address for service

Until a solicitor is engaged, further prosecution would be contrary to Ms B Bongiovani's duty as litigation guardian and officer of the Court to act under legal advice ([21]). Order 1 stays the proceeding until a solicitor or solicitors file a notice of address for service as solicitors for the applicant (Order 1; [21]–[22]).

Conclusion

The Full Court's holding that a non-solicitor litigation guardian must act by a solicitor bound the show-cause hearing ([16]). Jarrett J did not remove Ms B Bongiovani: he was not satisfied she cannot fairly and competently conduct the proceeding once properly advised ([19]–[20]). She cannot, however, act as the applicant's solicitor and must put a solicitor on the record ([18], [20]). The proceeding is stayed until that happens (Order 1; [21]–[22]). The nullity merits, family-violence allegations and the earlier s 102NA dismissal were not decided in these reasons ([1], [9], [15]).

🧠 Take-Home Lesson

No solicitor, no audience. A non-solicitor litigation guardian has no right of appearance in Division 1. High Court r 21.08.3, via s 56(2), is mandatory ([16]).
"Act by a solicitor" is not a hearing-day formality. It means a solicitor on the record conducting the case and advising the guardian ([18]).
Competence ≠ right of audience. Procedural missteps that show the guardian is not a lawyer do not, without more, prove she cannot fairly and competently conduct the case once advised under r 3.14(b)(ii) ([19]–[20]).
Duty to act under legal advice. That duty is part of the litigation guardian's role; prosecuting without it can justify a stay ([17], [21]).
Stay is the bridge, not removal by default. Keeping the guardian in place while staying until a solicitor files notice of address for service protects the compromised party without collapsing the protective arrangement ([5], [20]–[22]).
Confine submissions to the real issue. Material about bias, opposing counsel, family-violence allegations or the merits of the underlying claim may not assist a r 3.14(b)(ii) inquiry — and scattering into those topics can cut against competence ([9], [15]).
Support workers and McKenzie friends: a litigation guardian is not a substitute for a solicitor on the record. If you are helping a family where a guardian is running the case alone, the practical next step after Bongiovani is to get a solicitor onto the record — or expect a stay ([16], [18], [21]).

"A litigation guardian who is not a solicitor has no right of audience. She must act by a solicitor — on the record, conducting the case, and giving advice." ([16], [18])

"Keeping the guardian is not the same as letting her run the case without a lawyer. Competence is assessed with proper advice assumed; until that advice is engaged, the proceeding stays." (FLAST takeaway)

Comments (0)