Litigation Guardians in Family Law

Every court case runs on a quiet assumption: that each party understands what is happening and can tell their lawyer what to do. But what happens when a party in the middle of family law proceedings simply cannot understand the case, weigh their options, or give instructions at all?

In this article, we review two recent decisions of the Federal Circuit and Family Court of Australia dealing with litigation guardians. In one, the system worked smoothly, and a trial stayed on track. In the other, a case ground to a complete halt — and a judge openly described a father as being denied access to justice.

What Is a Litigation Guardian?

Under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, a person needs a litigation guardian if they don't understand the nature and possible consequences of the proceeding, or if they aren't capable of adequately conducting it or giving adequate instructions for it.

A litigation guardian is an adult who — in the court's own language — stands in the shoes of the party who lacks capacity. The incapacitated person remains the party to the case: the orders are still made for or against them, and any settlement still binds them. But everything a party would normally do is done by the guardian instead. The guardian receives the legal advice, weighs the options, instructs the lawyers, decides whether to negotiate, settle or fight on to trial, and signs off on the documents.

It is a role with real weight, and the rules treat it accordingly. A guardian cannot be just anyone: they must have no interest in the case that conflicts with the party they represent, must be able to conduct the proceedings fairly and competently, and must formally consent by affidavit. They are also entitled to be paid — usually from the represented party's own funds.

Vesper & Vesper [2026] FedCFamC1F 142

In Vesper & Vesper, a wife was engaged in parenting and property proceedings with a five-day trial only weeks away. She lived with complex post-traumatic stress disorder, alcohol use disorder and borderline personality disorder, and had recently been hospitalised because of her mental health.

Her own psychiatrist had previously assessed her as fully capable of instructing her lawyers and participating in a trial. But capacity isn't always fixed. By early 2026, the psychiatrist reported that her capacity fluctuated with her mental state, and her ability to give informed instructions had declined with it.

Her lawyers were candid with the court: she understood the nature and consequences of the proceedings, but she was no longer capable of adequately conducting the case — and forcing her to try could seriously harm her health, possibly landing her back in hospital.

Justice Williams agreed. The wife's sister — supportive, professionally qualified, willing, and with no conflicting interest — was appointed as litigation guardian. Nobody opposed. From application to appointment took less than a week, and the trial could proceed with the wife's interests properly represented. That is the system working exactly as intended.

Blum & Wolff [2025] FedCFamC1F 23

Now consider Blum & Wolff. A mother sought final parenting orders for three teenage children who had lived with her under interim orders since 2018. The children had not seen their father for five years, after he faced serious criminal charges that were ultimately discontinued when a tribunal found he lacked capacity to stand trial.

Everyone agreed the father needed a litigation guardian — a psychological report confirmed he could not understand the proceedings or instruct his lawyers. But unlike the wife in Vesper, the father had no family member or friend suitable to take on the role, no money to pay a professional, and Legal Aid declined to fund one.

The result? Paralysis. Years of adjournments where the only news was that no guardian had been found. The mother's application could not be heard. The father could not participate. Justice Brasch found the father, through his disability, had neither equality before the law nor access to justice — contrary to Australia's obligations under the United Nations Convention on the Rights of Persons with Disabilities.

But a judge cannot conjure funding out of thin air. The court took the only realistic path left: it stayed the proceedings entirely until someone applies to be the father's litigation guardian. The children remain with the mother under existing orders, but nobody gets a final resolution. The difference between the two cases wasn't the law — it was entirely practical. One party had a willing sister and the means to pay; the other had neither, falling into what Her Honour called Australia's "missing middle" of people locked out of justice by disability and impecuniosity combined.

Is There an Alternative to Appointing a Litigation Guardian?

If finding a guardian can be this difficult, can't the court simply work around the problem? Blum & Wolff is instructive precisely because the court considered the alternatives — and explained why each fell short.

Could the father's case be dismissed for failing to progress? No: the inability to find a guardian was not his fault. Could the matter be heard undefended, without him? No again: an undefended hearing is for a person who knows about proceedings and chooses to stay away. A person who cannot participate is in a fundamentally different position, and hearing the case in his absence would deny his right to be heard.

There are genuine partial avenues. A guardian or administrator appointed under state guardianship legislation — through a tribunal such as QCAT in Queensland or NCAT in New South Wales — can provide the missing decision-maker, and just such an application was on foot in Blum & Wolff. And where capacity merely fluctuates, as in Vesper, an adjournment can sometimes tide a party over a temporary crisis — though that is a band-aid, not a solution, where decline is ongoing and a trial is looming.

The honest answer is that there is no true substitute. Where a party genuinely lacks capacity, a litigation guardian — whether a family member, a professional, or a state-appointed guardian stepping into the role — is the only mechanism that lets the case proceed with both parties properly represented.

What This Means for You

If capacity is — or might become — an issue in your family law matter, these cases carry practical messages. If you're concerned about your own capacity: fluctuating mental health does not mean you lose your voice. As Vesper shows, a guardian can be appointed quickly where there is good medical evidence and a suitable person willing to act. Raising the issue early protects both your health and your legal position.

If the other party may lack capacity: this affects you too. Orders made against a person who genuinely could not participate are vulnerable, and as Blum & Wolff demonstrates, a case can be stayed indefinitely if the issue cannot be resolved. Identifying the problem early — and thinking practically about who could act as guardian — can save years of delay.

If you're asked to be a litigation guardian: it is a genuine responsibility, not a formality. At Surge Legal, we assist clients in parenting and property proceedings where capacity concerns arise — whether that means gathering the right medical evidence, applying to appoint a litigation guardian, or navigating a matter where the other party cannot participate.

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This article is a general summary of Blum & Wolff [2025] FedCFamC1F 23 and Vesper & Vesper [2026] FedCFamC1F 142 for information purposes only. It does not constitute legal advice. Please contact Surge Legal to discuss your individual circumstances.