› Consent orders on behalf of person with a disability
Family law
› Case guardian
› Duties under r 109(1)(d) Family Court Rules 2021 (WA)
Practice and procedure
› Persons under a disability
› Court approval of compromise agreements
Practice and procedure
› Consent orders
› Best interests requirement as substantive prerequisite
Quick Take
1Where a case guardian seeks consent orders on behalf of a person with a disability, the requirement under r 109(1)(d) of the Family Court Rules 2021 (WA) to file an affidavit setting out facts relied on to satisfy the court that the orders are in the party's best interests is not a mere procedural formality but reflects a substantive prerequisite to the court's power to approve a compromise binding on that person.
2A court approving consent orders affecting a person with a disability must be affirmatively satisfied that the compromise is in that person's best interests; this satisfaction cannot be left to inference from the surrounding materials or the appointment of legal representatives, and ordinarily requires some form of explanation or submission directed specifically to why the compromise serves the person's best interests.
3The general power to dispense with compliance with the rules (r 12 of the Family Court Rules 2021 (WA)) ought not be construed as empowering the court to dispense with a substantive requirement whose purpose is to protect the interests of a person with a disability.
