Whether proceedings properly started by litigation guardian…

family law casenotes

…manager of applicant’s affairs – when validity of POA subject of litigation before Supreme Court

In Holden [2023] FedCFamC1F 331 (3 May 2023), Jarrett J heard an application for a litigation guardian to be appointed for the wife in property settlement proceedings.

The parties were married for almost 55 years and lived together until late 2021. The wife then began living with her family and in respite care.

On 24 February 2022, the wife executed a new power of attorney that appointed her brothers, Mr C and Mr D. The wife commenced property adjustment proceedings in August 2022 via those attorneys.

The validity of the wife’s powers of attorney were the subject of proceedings in the Supreme Court of Queensland.

Jarrett J said (from [16]):

“According to FLR 3.16(5), for a person to become a litigation guardian of a party two things must occur. First, the person must be the manager of the affairs of the relevant party and second, they must file an affidavit of consent in relation to the relevant party. …



[20] At the time the present proceedings were commenced, Mr C was the manager of the affairs of Ms Holden (or one of them). Upon the filing of an affidavit of consent by him to becoming her litigation guardian, he became her litigation guardian for the proceedings. ... His appointment is presumed valid until declared otherwise…


[32] … I do not accept the respondent’s argument that the principal proceedings have not been ‘commenced’ and are not valid. The failure to commence proceedings by a litigation guardian … where one is needed is a procedural defect and a mere irregularity which can be cured.


[44] I answer the two questions reserved for consideration as follows:


(a) … no order is necessary for the appointment of Mr C as the litigation guardian for the applicant in these proceedings, unless and until the enduring power of attorney … is set aside; and

(b) the proceedings commenced by the filing of an Initiating Application … have been commenced and are valid unless and until the enduring power of attorney … is set aside.”

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). 

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