What is the role of a case guardian in the Family Court?

Do you have a friend or relative that suffers from a physical or mental disability and currently has a matter in the Family Court? Are they having difficulty understanding and communicating? If so, then they may lack the capacity to manage their own affairs and may need a case guardian to assist them in the Family Court.

The general legal test for capacity is described by Justice Powell in PY v RJS & Others [1982] NSWLR 700 as follows:

“A person is not shown to be incapable of managing his or her own affairs unless, at the least, it appears:

• that he or she appears incapable of dealing, in a reasonably competent fashion, with the ordinary routine affairs of man; and
• that, by reason of that lack of competence, there is shown to be a real risk that either he or she may be disadvantaged in the conduct of such affairs; or that such monies or property which he or she may possess may be dissipated or lost.
  

“It is not sufficient, in my view, merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner.”

A case guardian is a person who is appointed by the court to manage and conduct a case for a person with a disability.

Sydney lawyer Mark Streeter, Principal at Streeterlaw, says applying for a case guardian requires affidavit evidence of the person’s disability and a medical report.

“If the person is in hospital or under the care of a psychiatrist, then you will require a short report from those managing the applicant’s mental health,” he explains. “However, if the person is undiagnosed or not presently receiving treatment, their general practitioner may be willing to provide a report or preferably arrange an appropriate referral.

“Evidence also needs to be provided to the court concerning the nature of the incapacity and its anticipated duration.”

Responsibilities of a Case Guardian

• will be bound by the Family Court rules;
  
• must do anything required by the rules to be done by the person in need;
  
• may, for the benefit of the person in need, do anything permitted by the rules; and
  
• if seeking a consent order (other than an order relating to practice or procedure), must file an affidavit setting out the facts relied on to satisfy the court that the order is in the person’s best interests.
  

Personal liability

Mr Streeter said it is important to note that a case guardian may be personally liable for any costs in the legal proceedings because they effectively stand in the person’s shoes.

For more information or to discuss your situation, contact Mark Streeter at Streeterlaw on (02) 8197 0105 or by email at advice@streeterlaw.com.au

Written by Mark Streeter

The Director of Streeterlaw, Mark has been practicing Law since 1994. He has attained his Masters of Law in 1999 and in 2006 was awarded his Specialist Accreditation in Commercial Litigation. Mark is a member of ARITA, a graduate of the AICD and a member of AICM. A member of STEP, Mark enjoys working in the area of Wills and Estates. In 2020 Mark is the Chair of STEP NSW.

Call us on 02 8197 0105 to book an appointment with Mark Streeter!