Family law case note: Holden [2023] FedCFamC1F 331 (“Holden”)


Can the power of attorney of a party commence proceedings in the Federal Circuit and Family Court of Australia as litigation guardian? 

In Holden, Jarrett J heard an application for whether property proceedings commenced by the wife via her power of attorneys were ‘valid’. 

The parties were married for almost 55 years. From 2021, the wife lived with her family and in respite care. 

On 24 February 2022, the wife executed a power of attorney appointing her brothers, Mr C and Mr D.

In August 2022, the wife commenced property proceedings via her 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…

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…

I do not accept the respondent’s argument that the principal proceedings have not been ‘commenced’ and are not valid…

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.

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