14 May 2014

It has been reported that 45% of the Australian population aged 16 to 85 years have suffered symptoms associated with mental illness at some point in their lives.  Mental health issues make it harder, if not impossible, for some individuals to gain a fair and equitable access to the justice system. Legislation provides access to case guardians in such circumstances.


Part 6.3 of the Family Law Rules 2004 (Rules) outlines the rules regarding the appointing of a case guardian. In accordance with Rule 6.09 of the Rules, a person may be a Case Guardian if the person is:


·         an adult;


·         has no interest in the case that would be adverse to the client;


·         can fairly and competently conduct the case; and


·         has consented to act as a case guardian.


 Rule 6.08(1) of the Rules requires that a person with a disability may only start, continue, respond to, or seek to intervene in, a case by a case guardian. The legal capacity of a person to be a party to proceedings is fundamental to establishing the sound foundations to court proceedings and the orders pronounced. Proceedings involving a person who lacks legal capacity, is likely to result in a denial of natural justice that will call into question the validity of any outcome.

What is the test for “legal capacity”?

 The definition incorporated into the Family Law Rules by r 1.16, defines a “person with a disability” as a person who, because of a physical or mental disability:


·         does not understand the nature or possible consequences of the case; or


 


·         is not capable of adequately conducting, or giving adequate instruction to the conduct of, the case.


Practically, the question of whether a person lacks legal capacity is an issue for the courts to determine. There should be evidence before the court that the litigant is not capable of making the decisions required for conducting that litigation. It is also the professional obligation of a lawyer, both to their client and the court, to raise the issue of a lack of legal capacity when it is suspected that a party is in such a position, whether the lawyer’s own client or another party to the action.

 If the issue of capacity is not raised by either of the parties, the court should consider the issue of its own motion, and give all parties the opportunity to be heard on the determination of the issue. If a court suspects that a party lacks legal capacity, then the court may require the other parties to the matter to produce such evidence as may satisfy the court that the party concerned does not lack legal capacity. This becomes difficult however if, having expressed doubts as to the legal capacity of a party; there is an absence of medical evidence.  In such cases, experts state that the court may be entitled to exercise its jurisdiction to declare a person to be under a disability without the benefit of a medical opinion; however, such step should be done on the basis of evidence presented to the court.

 This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.

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