In Kerr v Fox [2024] QSC 174 Treston J dismissed a family provision application commenced by a person as litigation guardian for a minor child, in circumstances where the litigation guardian was a “stranger” to the child (in a legal sense, in that he was no relation) and had commenced the proceeding without consultation with the child’s sole remaining parent. I acted for the respondent in asking that the case be dismissed.

The case considers the role of litigation guardians for minors, parental rights and parental responsibility in relation to the role of litigation guardian, what is required for a valid appointment as litigation guardian, whether a particular person is suitable to remain as litigation guardian, and whether, once found he was not, the proceedings should be dismissed in their entirety, or whether someone else should be appointed litigation guardian in their place.

In summary, her Honour found that the applicant was not an appropriate person to remain as litigation guardian because (at [49]):

(a) he failed to consult with the child’s parent at all before the commencement of the proceeding, a step which ought to have been obvious for a person unrelated to the child to have taken;

(b) by commencing the proceedings at the time he did, and the way he did, he acted in a manner that was hasty and ill-considered;

(c) the exercise of careful judgement in relation to the infant was not demonstrated, there was no evidence that he properly considered what was in the infant’s best interests before commencing the proceeding;

(d) he was not impartial;

(e) he has some history of not being careful in the management of his own financial affairs; and

(f) he is impecunious, and has no reason to be careful of the infant’s prospects of success, knowing he cannot be liable for the costs which might be incurred.

In dismissing the the proceeding in its entirety, her Honour said (at [122]):

The court ought not lightly make orders for some other person to be appointed litigation guardian when the court considers this is currently a weak case, and any person to be so appointed would be at risk of an adverse costs order.

Read Kerr v Fox [2024] QSC 174 here.

Post script – an appeal by Mr Kerr to the Court of Appeal was summarily dismissed by Bond JA, with indemnity costs. See Kerr v Fox [2024] QCA 251 here.