Western Australian Current Acts

LEGAL REPRESENTATION OF INFANTS ACT 1977 - SECT 5

5 .         Guardians ad litem , appointment of by court

        (1)         Where in any legal proceedings it appears to the court —

            (a)         that the interests of a person who is an infant are or may be affected by those proceedings and that the infant is not a party to those proceedings; and

            (b)         that the infant ought to be separately represented,

                the court may, at any stage of the proceedings, appoint a fit and proper person who consents to act as guardian ad litem of the infant to be the guardian ad litem of the infant for the purposes of the proceedings or any part of those proceedings, or direct that an application be made for the appointment of such a guardian.

        (2)         An appointment under this section may be made by the court upon application by another party to the proceedings or a person who consents to act as the guardian ad litem or without any application being made, and the court may adjourn a hearing in order that such an appointment may be made.

        (3)         An application under this section may be made ex parte .

        (4)         An application for the appointment of a guardian ad litem , whether or not made pursuant to direction of the court, must be supported by evidence proving that the person proposed as guardian ad litem consents and is a proper person to act as such and has no interest in the proceedings adverse to that of the infant.

        (5)         Before making an appointment under this section, the court shall inquire into the guardianship of the infant for purposes other than those of this Act, and, where it appears to the court that the infant is pursuant to, or for the purposes of, any other law of this State or any law of the Commonwealth under the guardianship of the CEO as defined in section 3 of the Children and Community Services Act 2004 , the court shall not make an appointment under this section unless and until the court has caused notice to be served on the CEO and given the CEO an opportunity to be heard on the question of such an appointment.

        (6)         The court may order that notice of an application under this section need not be served on the infant, and may give directions concerning —

            (a)         the persons to whom notice shall be given, and the manner of the giving of that notice; and

            (b)         the continuation of the proceedings, including directions concerning the giving of notice to the guardian ad litem of the infant of the date on which and the place at which the hearing or adjourned hearing shall be conducted.

        (7)         Where an infant for whom a guardian ad litem has been appointed under this section does not intervene in any proceedings the infant is nevertheless entitled to be represented at any hearing relating to those proceedings by a solicitor or counsel who may cross-examine witnesses and address the court, but is not entitled to adduce evidence.

        (8)         A guardian ad litem appointed under this section must act by a solicitor.

        (9)         Where an infant for whom a guardian ad litem has been appointed under this section is not a party to the proceedings, any judgment in those proceedings which would not otherwise have been binding on the infant shall not be deemed to be binding on that infant by virtue only of the fact that the guardian ad litem was so appointed.

        [Section 5 amended: No. 121 of 1984 s. 30; No. 57 of 1997 s. 79; No. 34 of 2004 Sch. 2 cl. 18(3).]