Litigation

What is a Litigation Guardian?

In Australia, there are circumstances where individuals may be unable to make decisions or conduct legal proceedings on their own behalf. This could arise due to age, as in the case of children, or due to impaired decision-making capacity, such as with adults facing certain disabilities or medical conditions. In these situations, a litigation guardian may be appointed by the court to safeguard the person’s interests and ensure their legal rights are upheld. This comprehensive guide will explore the role of litigation guardians in Australia, the circumstances under which they are appointed, and how they operate across various legal contexts.

Understanding the Role of a Litigation Guardian

A litigation guardian is a person appointed by the court to make decisions and conduct legal proceedings on behalf of a person under a legal disability. The term “person under a legal disability” refers to someone who is unable to make decisions for themselves or manage their own legal affairs due to age or impaired decision-making capacity. The litigation guardian acts as a substitute decision-maker, ensuring that the person’s best interests are represented in court proceedings.

The role of a litigation guardian is to protect the rights and interests of the person they represent. They have a duty to act in the person’s best interests and to make decisions that promote their welfare. This includes considering the person’s views and preferences, where possible, and consulting with others involved in their care or support.

Duties and Powers of a Litigation Guardian

A litigation guardian has a range of duties and powers when representing a person under a legal disability in court proceedings. These include:

1. Instructing lawyers: The litigation guardian is responsible for engaging and instructing lawyers on behalf of the person they represent. They provide information and instructions to ensure the person’s interests are properly represented.

2. Making decisions about evidence: The litigation guardian must make decisions regarding what evidence to present in court and how to respond to evidence introduced by other parties. This includes deciding which witnesses to call and what documents to rely on.

3. Considering settlement offers: If a settlement offer is made during the proceedings, the litigation guardian must evaluate whether accepting the offer is in the person’s best interests. They may need to seek legal advice and consult with others involved in the person’s care before making a decision.

4. Being liable for legal costs: The litigation guardian is generally personally liable for any legal costs incurred during the proceedings unless the court orders otherwise. This means they must carefully consider the costs and benefits of pursuing legal action on behalf of the person they represent.

When is a Litigation Guardian Appointed?

A litigation guardian may be appointed by the court in various circumstances where a person is unable to make decisions or conduct legal proceedings on their own behalf. The court must be satisfied that the appointment is necessary and in the person’s best interests. Some common situations where a litigation guardian may be appointed include:

Litigation Guardians for Children

In legal proceedings involving children, such as family law disputes or child protection matters, a litigation guardian may be appointed to represent the child’s interests. This is because children are considered to be under a legal disability due to their age and lack of capacity to make decisions for themselves.

In family law proceedings, an Independent Children’s Lawyer (ICL) may be appointed under Section 68L of the Family Law Act 1975 (Cth) to represent the child’s best interests. The ICL is a type of litigation guardian who is specifically trained and experienced in working with children and families. They gather evidence, interview relevant parties, and provide recommendations to the court on what arrangements would be in the child’s best interests.

For example, in the case of Forster & Forster [2015] FamCA 1175, the Family Court appointed an ICL for a child in parenting proceedings where there were allegations of sexual abuse and neither parent was considered to be supporting the child’s best interests. The ICL played a crucial role in gathering evidence, facilitating the child’s participation in the proceedings, and advocating for their welfare.

Litigation Guardians for Adults with Impaired Decision-Making Capacity

A litigation guardian may also be appointed for adults who lack the capacity to make decisions for themselves due to a disability, mental illness, or other medical condition. In these cases, the litigation guardian acts as a substitute decision-maker to protect the person’s interests in legal proceedings.

The appointment of litigation guardians for adults with impaired decision-making capacity is governed by state and territory legislation. For example, in Queensland, the Guardianship and Administration Act 2000 allows the Queensland Civil and Administrative Tribunal (QCAT) to appoint a guardian or administrator for an adult with impaired capacity. The guardian or administrator can then act as a litigation guardian in legal proceedings on the adult’s behalf.

The Litigation Guardian Appointment Process

The process for appointing a litigation guardian varies depending on the type of legal proceeding and the jurisdiction in which it is taking place. However, there are some general steps involved:

1. Application: An application for the appointment of a litigation guardian must be made to the court. This can be done by the person who requires a litigation guardian, their family or friends, or a legal representative.

2. Evidence: The court will require evidence to support the application, such as medical reports or assessments of the person’s decision-making capacity. In the case of children, the court may also consider evidence about the child’s views and preferences.

3. Assessment: The court will assess whether the appointment of a litigation guardian is necessary and in the person’s best interests. This may involve considering factors such as the person’s age, capacity, and the nature of the legal proceedings.

4. Appointment: If the court is satisfied that a litigation guardian should be appointed, it will make an order to that effect. The order will specify the name of the litigation guardian and the scope of their authority.

Eligibility Requirements for Litigation Guardians

Not everyone can act as a litigation guardian. There are certain eligibility requirements that must be met, which vary depending on the jurisdiction and type of legal proceeding. Generally, a litigation guardian must be:

• Over 18 years of age
• Of sound mind and capable of making decisions
• Willing and able to act in the best interests of the person they represent
• Not in a position of conflict with the person they represent
• Not a party to the legal proceedings (except in some cases, such as where a parent acts as a litigation guardian for their child)

In some cases, the court may appoint a professional litigation guardian, such as a lawyer or social worker, if there is no suitable family member or friend available to take on the role.

Litigation Guardians in Different Legal Contexts

Litigation guardians play a vital role in various areas of law where a person may be under a legal disability. Some common contexts where litigation guardians are appointed include:

Litigation Guardians in Family Law Proceedings

In family law proceedings, litigation guardians are often appointed to represent the interests of children. This is because children are not considered to have the capacity to make decisions about their own welfare and living arrangements. The litigation guardian, often an ICL, will gather evidence, interview relevant parties, and make recommendations to the court about what arrangements would be in the child’s best interests.

Litigation guardians may also be appointed for adults with impaired decision-making capacity in family law proceedings. For example, if a parent has a mental illness or intellectual disability that affects their ability to participate in the proceedings, a litigation guardian may be appointed to represent their interests and ensure their voice is heard.

Litigation Guardians in Personal Injury Claims

In personal injury claims, a litigation guardian may be appointed to represent a person under a legal disability who has suffered an injury and is seeking compensation. This could include a child who has been injured in an accident or an adult with a cognitive impairment who has been injured due to someone else’s negligence.

The litigation guardian will instruct lawyers, gather evidence, and make decisions about the conduct of the claim on behalf of the injured person. They will also consider any settlement offers and decide whether accepting an offer is in the person’s best interests.

For example, if a child is injured in a car accident and their parents wish to pursue a compensation claim on their behalf, a litigation guardian may be appointed to represent the child’s interests in the proceedings. The litigation guardian will ensure that the child’s voice is heard and that any settlement reached is in their best interests.

Frequently Asked Questions About Litigation Guardians

1. Can a litigation guardian be removed or replaced?
   Yes, a litigation guardian can be removed or replaced by the court if they are not acting in the person’s best interests or if there is a more suitable person available to take on the role. An application for removal or replacement can be made by the person under a legal disability, their family or friends, or a legal representative.

2. Who pays for the services of a litigation guardian?
   The cost of a litigation guardian is usually paid by the party who is responsible for the person under a legal disability. In some cases, the court may order that the costs be paid by another party or from the person’s own funds. Legal aid may also be available to cover the costs of a litigation guardian in some circumstances.

3. What happens if a litigation guardian acts improperly?
   If a litigation guardian acts improperly or fails to fulfill their duties, they may be held liable for any losses or damages suffered by the person they represent. They may also be removed or replaced by the court. In serious cases, a litigation guardian may face disciplinary action or even criminal charges.

Next Steps: Seeking Legal Advice and Support

If you believe that you or someone you know requires a litigation guardian, it is important to seek legal advice and support as soon as possible. A lawyer experienced in this area can help you understand your options and guide you through the process of appointing a litigation guardian.Talk to one of our family lawyers at Mediations Australia.

Some steps you can take include:

1. Contacting a community legal centre or legal aid office for free or low-cost legal advice.
2. Searching for a private lawyer who specializes in the relevant area of law, such as family law or personal injury.
3. Contacting the relevant court or tribunal for information about the litigation guardian appointment process.
4. Seeking support from advocacy organizations or disability services that may be able to provide advice and assistance.

Remember, the role of a litigation guardian is to protect the rights and interests of a person under a legal disability. By seeking legal advice and support, you can ensure that the person’s voice is heard and their best interests are represented in legal proceedings.

In conclusion, litigation guardians play a crucial role in the Australian legal system by protecting the rights and interests of persons under a legal disability. Whether representing children in family law proceedings or adults with impaired decision-making capacity in personal injury claims, litigation guardians ensure that the voices of vulnerable individuals are heard and their best interests are upheld. By understanding the role and responsibilities of litigation guardians and seeking legal advice and support when needed, we can help ensure that everyone has access to justice and a fair outcome in legal proceedings.

Key Legal References

• Family Law Act 1975 (Cth) – Section 68L allows for the appointment of an Independent Children’s Lawyer.
• Queensland Guardianship and Administration Act 2000 – Governs the appointment of a litigation guardian for adults with impaired decision-making capacity.
• Federal Circuit and Family Court of Australia (Family Law) Rules 2021 – Relevant to procedures relating to family law matters.

For further information, visit the official sources:

• Family Law Act 1975 (Cth)
• Queensland Guardianship and Administration Act 2000
• Federal Circuit and Family Court of Australia (Family Law) Rules 2021

Conclusion

Understanding the role of litigation guardians in Australia is essential for both legal professionals and their clients. Through this comprehensive guide, we aim to equip readers with the knowledge necessary to navigate the complexities of appointments and the rights of individuals under a legal disability. For those in need of guidance or representation, seeking experienced legal advice is the first critical step toward ensuring justice and advocacy for vulnerable individuals.

The costs of going to court are staggering, yet many people still consider this as their only option when trying to resolve a dispute.

Going to court to resolve conflict is increasingly considered as the worst way to get things sorted, with most courts in Australia now mandating that mediation or alternate dispute resolution is a step or a series of steps that must be undertaken before reaching the door of the court. Despite alternate dispute resolution not working in some circumstances, people in conflict can even find that when they get to court following unsuccessful mediation, the court will order that they keep trying.

Why is Going to Court Expensive?

Court costs are overwhelmingly high, but what invariably is higher are all the legal costs associated with getting there. Once you get to Court, the fees of your lawyer and a Barrister will be in the vicinity of $6,000 – $12,000 per day. It’s likely that it has already cost you possibly ten times that amount to get to this point. Notwithstanding this, if you lose, it may be the case that you will be ordered to pay the winner’s legal fees as well as your own.

In the context of winning and losing, no one goes into litigation with the thought of losing, yet the thousands of cases that go before courts each year and subsequently written up in volumes of case law result in a win and a loss. What is just as alarming is the fact that many who actually win, lose as well. The financial impact weighs less significantly than the emotional impact of being involved in litigation.

What are the Actual Costs of Going to Court?

As mentioned, litigation is made up of hugely laborious steps before even reaching court. These steps are a mixture of preparation, drafting court documents, meetings, expert opinions, including barristers, negotiation, mediation, then court costs. When discussed globally like this, it may not sound to be a lot of money, but when you calculate hourly rates of lawyers and associated professionals whose average hourly rate is between $350 – $700 an hour, the costs escalate very quickly and before you know it, tens of thousands of dollars.

How Do Lawyers Charge?

As mentioned, a lawyer’s fee will be in the vicinity of $350 – $700 an hour, not to mention additional costs including all the personnel who work on your legal matter within the law firm.

Depending on the type of legal matter, it’s likely that when you first engage a lawyer to act for you they will require you to deposit a substantial amount of money into their trust account to enable them to start work. The charges they intend to invoice you for will be subject to a costs agreement that you must see and agree to before any work is instigated. They also must provide you with an estimate of how much your legal matter will cost to litigate.

What About No Win No Fee?

Depending on the area of law that you require help with, there may be law firms who will act for you on a No Win No Fee basis. This is particularly so in relation to personal injury law matters. Simply put, if your matter is successful you will pay the legal fees, if it is not, you will not pay your lawyer’s legal fees.

However, what you need to know is that if unsuccessful you may not have to pay your lawyer’s fees, but the successful party’s lawyers may seek their costs from you.

Accordingly, you do need to consider this and ensure that if your legal matter is eligible for a No Win No Fee contingency arrangement the law firm you’re working with is very skilled in the relevant litigation.

Costs Ordered by the Court

If your matter does not fall inside a No Win No Fee arrangement, if your legal matter is successful it usually follows that the Court may order costs against the unsuccessful party and they become bound to pay aspects of your legal costs.

In relation to these costs, there are a number of ways that the Court may consider the allocation of these costs. For example:

Party costs are the most common form of costs ordered by a court. What this typically means is that the unsuccessful party will be ordered to pay the “agreed or assessed” legal costs. This basically means that you and the other party:

• reach an agreement on those costs to be paid; or
• agree to an independent assessment being undertaken to determine what each party’s ‘reasonable’ costs are due to the litigation.

It’s usually the case that these costs are between 70-85% of the real costs. 

The Intangible Costs of Going to Court

In considering the costs associated with going to court, we mostly consider the financial impact. However, the psychological cost of going to court can be massive.

By way of example, in the UK, a leading Will dispute litigation practice found that over 80% of people they represented in such matters showed significant symptoms of mental health issues related to the often lengthy litigation. Notwithstanding this, particularly in family law litigation, there are many innocent people involved, most notably children.

Is There a Better Way?

The best way to avoid going to court is by not going to court. Legal Industry-Academic, Dr George Beaton from the University of Melbourne says hiring a lawyer is a “grudge purchase” for consumers.

“With most purchases in life a consumer gets a degree of certainty, but lawyers usually can’t say for sure what the final figure will be, because they don’t know how long the case will run or the final outcome.”

Dr Beaton suggested that by far, mediation is a better approach.

In our experience, at Mediations Australia, we obviously agree. Litigation is set up by conducting a number of adversarial steps along the way that fragment and worsen relationships culminating in a bitter fight to the end. This typically results in no one walking away content with the outcome, but rather significantly poorer for the experience and psychologically damaged.

How Does Mediation Help?

Mediation derives from an acknowledgement that disputes are a part of life and the sooner you resolve them, the better for everyone.

Disputes get worse the longer they’re left, by choosing mediation early in the dispute, resolution can typically be achieved.

Notwithstanding this, the costs of mediation are a fraction of litigation costs. The same dispute may cost $300,000 to litigate and less than $5,000 to mediate, potentially including legally-binding agreements being drawn up.

How Do I Make The Decision?

A very small percentage of disputes simply won’t resolve in mediation. This primarily is because both parties are intractable in their positions. In other words, they won’t give an inch. These are the types of matters that Dr Beaton referred to as “grudge” matters. Common sense goes out the window and their fierce determination to win at all costs takes over. At times, there may be one innocent party to all this, while the other one is intent on wrecking them financially and emotionally.

The other types of matters that end up in litigation are invariably those that are very complex and potentially have many parties to the litigation.

But that said, increasingly arbitration is being used to settle these types of matters. For example, many complex commercial and construction disputes are arbitrated in Australia.

You can read more about how Mediations Australia can assist in family law arbitration and other types of arbitration.

What to Do Next

Regardless of the type of dispute you’re involved in, it’s advisable at soon as possible to seek advice. At Mediations Australia, our mediators are all qualified lawyers. They’re perfectly suited to ascertain the nature of your dispute and will give you some potential options that will best achieve a resolution that you’re happy with.

Contact the Perth office of Mediations Australia today to discuss how family law mediation can help you. We can connect you to the best Mediator in most major cities in Australia including including Canberra, Perth, Adelaide, Melbourne and etc.

Mediate, Collaborate, or Litigate: In the realm of family law disputes, many default to seeking legal assistance and pursuing resolution through litigation. This approach, often stemming from a lack of awareness of alternative options, can prove costly and fraught with risks.

A more advantageous approach is to adopt a resolution-focused mindset when addressing family law disputes. This entails prioritizing methods that minimize collateral damage and expenses while effectively resolving the issues at hand.

Let’s look at the commonly used resolution practices in solving family law issues.

Mediation

Family Law Mediation works! It’s really as simple as that, providing that you and your ex-partner have a willingness to resolve your matter. Mediation is a compulsory step in all family law matters, so there’s really no way out of it, so you and your ex-partner should take the opportunity seriously. There are of course exceptions to this compulsory mediation step, in particular where there is the prevalence of domestic violence etc.

Mediation simply put is a process in which the issues that are in dispute between you and your ex-partner are identified by you both and you agree to do your very best to resolve them. The mediator is an impartial facilitator who through their skill set will assist you both resolve and reach an agreement. The mediation doesn’t necessarily have to occur with both you and your ex-partner in the same room. The mediator can work between you both in separate rooms etc.

Mediation can occur over one day or multiple depending upon the complexity of the issues involved.

If you need mediation help, we can assist.

Collaboration

Like mediation, the practice called “collaborative law” is resolution focused without relying on litigation. The most significant difference is that mediation does not necessarily rely on lawyers being involved where collaborative law does. The other very important feature of collaborative law is that the family lawyers acting for each of you agree with you that litigation is not an option. By removing litigation as a fallback position it can assist in focusing you and your ex-partner on a resolution. Similarly, the lawyers are also solely focused on the resolution without court intervention because they are bound by the same agreement. In the case that you and your ex-partner wish to cease the collaborative law process, you can do so, but it cannot be with the same lawyers.

Collaborative law can work very well if you and your ex-partner would like legal help along the way without that help being centred towards litigation.

Litigation

In the context of family law disputes, only a very small number of matters really need court intervention. Using the courts and lawyers to resolve your dispute is expensive, very lengthy and the issues in dispute have a tendency to become more complex. There is a plethora of research available that clearly shows time and time again that the worst way to resolve the far majority of family law matters is through litigation.

At the time of writing this article, the average time to resolve a family law dispute through litigation is approximately 3 years, with legal fees invariably in the range of $100,000 – $600,000. Not to mention the emotional impact that is had by all involved.

Which is best for you?

The quickest and most inexpensive way to resolve family law matters is through mediation. That said, there are a number of things to consider in determining whether mediation or collaborative law is for you.

Take us up on our offer for a free, no-obligation consultation to learn more about which method of resolution best suits your circumstance.

How Can Mediations Australia Help?

Contact Mediations Australia for help and guidance on making a financial agreement through family law mediation. call one of our Perth, Melbourne, Sydney and Brisbane meditation teams today.

At the outset, let’s be very clear, mediation is not litigation. Litigation, of course, conjures up in the minds of many people, a battle to the end, with no real winners or losers, but rather most likely two battle fatigued people who are substantially poorer and more emotionally drained than they were when they chose this path. Conversely, mediation isn’t about a battle, it’s about acknowledging things for whatever reason haven’t worked out, putting it to one-side and agreeing to find middle-ground promptly on the things that count most, property and parenting, so you can both get on with your lives.

When Mediation Isn’t For You

If this doesn’t sound like you and you want to square up with your ex-spouse for all they have done to you, wanting them to pay for their indiscretions or failings, then choose litigation. But do understand that even litigation will require you to attend a mediation to try and resolve things. It’s well noted that judicial officers in the family law environment dislike having to decide matters themselves when it’s apparent to them that you and your ex-partner could have done so via mediation.

When Mediation is For You

If you and your ex-partner see the wisdom in resolving your family law dispute mediation sooner and without considerable legal fees, that’s a great place to start. At this point, it’s useful to consider what are the real issues that you and your ex-partner don’t agree on. Is it property or parenting matters or something else?

In the case of property, you need to know a few things. Most importantly, there are strict time limits that apply to these matters.

Settling property matters should be given some priority because Courts take into account assets that you currently have as well as what assets there were at separation. Courts don’t necessarily recognize informal agreements and may ignore them altogether so it’s important to get advice to make sure that your agreement will finalize your matter. WE mention Courts in this context because once an agreement is reached during a mediation, that agreement will need to be drawn up and officiated by the Court. This will ensure that the agreement is now legally binding.

If you and your ex-partner were married, you MUST finalize your mediation property matters, or apply to the Court for Orders within 12 months of the date of divorce. In the event that you and your ex-partner were in a de facto relationship, this MUST occur within 2 years of the date of separation.

Will Mediation Work for a Property Settlement?

In a family law mediation context, in considering a property settlement, the initial step is always to clarify what property there is, and what debts or liabilities exist.

The next step is to work out how each of you contributed to the family both financially and of course, in non-financial ways. The third step is about assessing any special circumstances that require some adjustment to the property settlement amount, for example, it might be the case that children need to be schooled by one parent, etc. The final step is to determine the fairest way of dividing the property and debts given the contributions of the parties and any future needs identified during the process.

At Mediators Australia, we work collaboratively with Family Lawyers, Financial Advisors, Accountants and others to ensure the full picture of the property pool is considered during the mediation.

What Should You Do Next

Simply contact our Melbourne, Perth, Sydney and Brisbane Mediators for a free no-obligation chat to learn more about how we might be able to assist you.