Masterman-Lister v Brutton [2003] 1 WLR 1511

1. No one has been identified to the Court as someone who may be appointed as a litigation guardian for the Respondent Father. As a consequence this request is made to the Attorney-General.
2. The Court also requests that Legal Aid Queensland use their best endeavours to fund the Respondent Father and assist him to obtain a Litigation Guardian.

1. No order has as yet been made in accordance with s 65DAAA of the Family Law Act 1975, formerly the rule in Rice & Asplund, noting that a final parenting order had been made on 11 December 2015.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This matter came before the court on 25 August 2025 to determine the care and living arrangements for the child, X born in 2012. At the time of hearing she was 13 years old. The parenting proceedings did not proceed and the court is instead asked to determine whether the father is a person who needs a litigation guardian.
2. The applicant in these proceedings is the child's father and the respondent is the child's mother. The parties have been assisted by the appointment of an Independent Children's Lawyer ("ICL"). An ICL is a party to the proceedings whose role is to assist the court in determining the outcome that is in the best interests of the child. This is done in a multitude of ways, but to be clear the ICL is not the child's lawyer and is not a creature of instructions in the usual way.
3. The mother's evidence, which appears to be unchallenged, is that the parties commenced their relationship in or about December 2011 and separated in November 2012. This matter has a long history before the court with the father commencing the original proceedings in 2014 and final orders made in 2015.
4. The tendered material reflects that in about 2020 the father experienced anxiety and depression and in June 2021 his mental state deteriorated leading to hospitalisation[1]. The mother filed an Initiating Application on 12 January 2021 seeking a Recovery Order and to re-litigate parenting matters. The matter has progressed through a number of difficulties to what was intended to be a contested final hearing before me on 25 & 26 August 2025. The mother was granted leave to appear at the final hearing electronically. As noted above, the final hearing did not proceed, due to the expert report of psychiatrist Dr C who expressed the opinion that the father does not have full capacity in relation to legal and other matters.

1. The child currently lives with the mother in an unknown location. Pursuant to an interim parenting order made on 20 October 2022 the child spends no time with the father. It was not however always that way, with the Final Order made in 2015 providing for the child to spend significant and substantial time with the father.
2. The 2015 Final Order and the 2022 Interim Order both provide for the mother to have sole parental responsibility for major long term decisions.

1. Whether the father is lacking capacity in relation to legal matters and if so how to progress these proceedings in a way that is procedurally fair and in the child's best interests.

1. The father had not complied with Trial Directions to file material. He did not attend court for the compliance hearing a week before the trial and at that time he was not legally represented. The court was conscious, however, that the father was likely to attend the trial as he has routinely attended court events. He again became legally represented under a s 102NA order later that day.
2. At the compliance hearing the prospect of a voir dire or discrete issue hearing was mooted as a means to enable the court to make findings as to the father's legal capacity.
3. When the matter came before the court on 25 August 2025, I was informed by counsel for the respondent that he could not get any information from his client which could be interpreted as instructions. This led to some discussion as to the way forward. The matter was stood down and the father's legal representatives made continued efforts to obtain instructions and to assist the court.
4. It became apparent throughout the hearing that the father struggled to comply with directions. In the management of the proceedings I had in mind that the issue under discussion, being his mental health and his legal capacity, may have been distressing or frustrating for the father as he advised the court that he did not accept Dr C's diagnosis, and that his conduct should be viewed in that light.
5. When given the opportunity to speak directly to the court, the father spoke of filing proceedings in the Supreme Court and a report from Dr B. It transpired that he was referencing an email from Dr B which was subsequently tendered. The father spoke of the mother's legal fees and a variety of other issues that held little or no relevance to either child matters or his legal capacity. I attempted to explain to the father that Dr C's evidence had to be addressed, that he could not just say it was wrong, but it became apparent that he was not capable of engaging in the proceedings in a way that would assist the court; by that I mean he continued to struggle with the process and the etiquette that are in place for proper management of court hearings.
6. The father had expressed some frustration that his legal representatives had not read his material, but as is common with s 102NA lawyers, and particularly where this is the third lawyer appointed for the father under that policy, they have come on board at short notice only filing a Notice of Address for Service a week prior to the trial - and the father's material is voluminous. The court was advised that the father's legal representatives had been unable to obtain instructions since going on the record or indeed on the morning of the trial. The matter was stood down to give the father's counsel and solicitor the opportunity to continue their attempt to obtain instructions.
7. The ICL proposed to make inquiries with the public guardian to ascertain if they would be able to assist the father. It was suggested that Legal Aid Queensland may fund the father separately rather than under s 102NA, noting that Dr C's report might trigger disability or special funding and may even allow funding for a litigation guardian application in QCAT. That was however mere speculation during the hearing which the ICL undertook to follow up.
8. It is difficult to engage with and obtain instructions from somebody who is resistant to a diagnosis and who feels they are in a situation of great injustice, as is the case here where the father has not spent time with the child for several years. By the end of that first day, the father's legal representatives sought and were granted leave to withdraw.
9. I gave consideration to determining the issue of capacity on the papers. This was in a large part motivated by the consideration that if the father were lacking in capacity then requiring him to be cross-examined, to cross-examine Dr C, and make submissions would impose significant stress upon him. I was however persuaded, having heard submissions from all parties, that there should be the opportunity for Dr C's opinions to be tested by all, but especially the father, in line with Thompson v Smith [2005] QCA 446.
10. The process of hearing submissions and taking evidence as to the father's legal capacity was adjourned to the following day to allow him the opportunity to prepare. As a self-represented litigant the father was provided with a preliminary explanation as to the process, focussed on preparation for the discrete issue hearing as to legal capacity.
11. At the conclusion of that first day, the material was read for the following day, and limitations put in place for the time span of each party's cross-examination of Dr C and the time for submissions as to the issue of legal capacity. An order was made permitting the father to be provided with the documents proposed to be tendered during the cross-examination of Dr C. That allowed the father to consider those documents in advance, noting they were his own medical records. It was recommended to the father that he review the material read by the parties and those documents proposed to be tendered, and consider what questions to put to Dr C in relation to the issue of legal capacity and her opinions.
12. At the commencement of the hearing on the following day, the court provided the father with the required explanation of the process. The court was then advised that the father had not brought documents with him to court, despite being told to do so the day before. The court was advised that the father had lost his phone but that he had received a copy of the legislation sent to him by the associate the previous day. The matter was stood down to allow documents to be printed by the court and provided to the father.
13. By way of observation of the father, during the course of the hearing he was unsettled. If something was said with which he disagreed, he would talk quietly but persistently whilst whoever was on their feet was also talking. This continued despite the repeated requests to desist and reassurance that he would be given an opportunity to respond.
14. It is always challenging to be self-represented in legal proceedings. It is more challenging indeed when you are seeking to defend yourself, as the father was, against what he perceived as an attack in relation to his mental health and his capacity to engage in proceedings. Overall, the father managed well, he engaged in the proceedings and put some questions to Dr C of relevance.
15. I am not critical of the father for exceeding the timeframe imposed on the parties for cross-examination and submissions. Not only does this routinely happen but in these particular proceedings each party exceeded the timeframe imposed upon them.

1. The mother seeks orders in line with Justice Brasch's decision in Blum & Wolff [2025] FedCFamC1F 23. Her Honour stayed the proceedings until an application was made to appoint a litigation guardian for the father.
2. The father's lawyer was unable to obtain instructions, so other than to tell me they could not obtain instructions, they were unable to propose a course of conduct based on any instructions. When spoken to directly the father advised the court he did not accept the opinion of Dr C and wished to press on with the child proceedings. It was explained to him that once the issue of legal capacity had been raised it could not be ignored. He did not accept that he lacked legal capacity. He opposed the appointment of a litigation guardian.
3. The ICL sought orders for the appointment of a litigation guardian. The ICL did not support a stay of proceedings as they were concerned that would leave the parties in limbo. Rather they sought that the court of its own volition make an attempt through Rule 3.16 to have the Attorney-General appoint a litigation guardian with funding to be obtained through Legal Aid Queensland.

1. The mother and the ICL relied on material in accordance with their Outline of Case documents. The father was granted leave to rely on his affidavit filed on 13 September 2024.
2. I have considered the material read, the documents tendered in accordance with the exhibit list and the oral evidence of Dr C. I was assisted by the written and oral submissions of the parties.

1. The psychiatric report filed on 10 February 2025 states in the summary as follows:

1. I interviewed [Mr Mendez] a 48-year-old, single, Caucasian male, and father to one dependent child, for the purpose of preparing this psychiatric medicolegal assessment report.

2. He presented with mental health symptoms that would meet the Diagnostic and Statistical Manual of Mental Disorders (5th Edition) DSM-5 diagnostic criteria for:

• Relapse of paranoid schizophrenia, active positive and negative symptoms, untreated

• Potential substance use disorder - cannabis use disorder

3. I reserve my opinion in regard to his personality traits.

4. He presented with unspecified cognitive difficulties.

5. Causing functional impairment and distress.

6. This was further supported by psychometric testing.

7. I am of the opinion that [Mr Mendez] does not have the capacity to be a sole parent, or to co-parent effectively in the best interest of his child.

1. Dr C gives evidence in her report that the father presented with symptoms of acute psychosis in keeping with paranoid schizophrenia and manifested with the following symptoms:[2]
   • Delusions - strange beliefs and ideas which are resistant to rational/logical dispute or contradiction from others including the believe that "Trump is controlling us through the television", paranoid thoughts in regard to the government interventions, and obsessive beliefs in regard to his wife's perjury. Persecutory delusions about "the system" that is against him
   • Disorganised speech - incoherence and irrational content
   • Disorganised behaviour - clear deterioration from previous level of functioning and behaviour
   • Negative symptoms - flat affect, amotivation, anergia, and failure to maintain hygiene
   • Marked reduction in level of functioning in one or more areas, such as occupational, social, or personal care or hygiene
   • Symptoms have persisted at least six months
   • Schizoaffective disorder and depressive or bipolar disorder with psychotic features have been ruled out
   • The psychotic episode cannot be attributed to substance use (ethanol withdrawal, cocaine abuse) or a medical condition
2. Later in the report Dr C expresses the following opinion:

68. [Mr Mendez] was specifically assessed against Schedule 4 of the Guardianship and Administration Act 2000 as well as the Queensland Capacity Assessment Guidelines 2020.

69. [Mr Mendez] was assessed as not currently having full capacity in respect to legal, financial, and medical matters. [Mr Mendez] has been assessed as not currently having capacity to provide legal instruction and manage any instructions and orders he might receive.[3]

1. The father does not accept Dr C's diagnosis or opinions. He tenders an email dated 28 July 2023 from a treating psychiatrist Dr B, who saw him in 2023, which he submits states that he is not schizophrenic. That is incorrect. What that email states is as follows:[4]

As per my records when I saw you in 2023 your diagnosis of schizophrenia was not confirmed as there was insufficient information to make the diagnosis of schizophrenia.

1. There is a great deal of difference between stating that there was insufficient information to make a diagnosis and actually making an assessment that a person does not have that condition.
2. As to the mental state examination, in the report, Dr C describes the process via footnote 4 as:

The Mental State Examination is a comprehensive cross-sectional clinical structured assessment used to observe and describe psychological functioning, under the domains of appearance, behaviour, mood and affect, speech, thought process and content, perception, cognition, insight, and judgment at the time of the assessment.

1. The detail of that assessment is reported as follows:

10. [Mr Mendez] is a 48-year-old Caucasian male of average height and thin build, looking older than his stated chronological age. He was dressed in casual attire and appeared dishevelled. He remained polite but only made occasional eye contact. Rapport was superficially established. He spoke English, and was softly spoken, but became animated at times.

11. [Mr Mendez] presented initially with a euthymic appearance and became distressed when discussing his situation and some paranoid thoughts. His affect remained blunted, inappropriate, and congruent to his thoughts.

12. Thoughts were at times irrelevant and incoherent. He presented his thoughts in an illogical manner. Clear formal thought disorder was noted. Thoughts about his current situation tended to dominate his thinking. These thoughts were distressing and preoccupying in character. He did report anxiety and depressive cognition. He did not experience imminent suicidal thoughts, intent, or plans. He did not express any homicidal or deliberate self-harm thoughts, intent, or plans. Clear delusional content could be elicited, specifically paranoia, thought interference, and delusions of reference, including the believe that "Trump is controlling you through the television", as well as paranoia in regard to the government, and perjury that his wife engaged in. He denied the experience of perceptual abnormalities.

13. [Mr Mendez] had clear cognitive deficits on informal assessment and was not able to respond to questions appropriately. [Mr Mendez]'s insight and judgement have been assessed as severely impaired.

1. In the report, Dr C noted the inability to complete the usual psychometric testing of the father.[5] Dr C assessed the father's risk to self, to others, and to professionals as high. There was no immediate risk identified but risk of abuse was identified as "significantly elevated." Imminent risk was identified as "significantly elevated." Long terms risks were identified as significant and arising from maladaptive parenting.[6]
2. Dr C noted that the father is untreated. She had reservations as to his prognosis due to the frequency and intensity of his symptoms and the length of time they have been untreated. She acknowledged his intelligence and past resilience.[7] She made detailed treatment recommendations, however, the court notes the father's position that he does not need treatment.

1. I have set out the evidence given under cross-examination in detail given that the issue is the father's legal capacity.
2. Dr C advised the father declined to attend for an in person interview, and I acknowledge the father's position that the distance was prohibitive. Dr C gave evidence to the court that she does a lot of capacity assessments and that the limitations of a video conference did not limit her ability to form opinions. She advised the assessment and interview process took over two hours including the time the father spent undertaking the tests. She confirmed that she was present in the room throughout, although her assistant attended to the administration of the tests undertaken by the father.
3. She gave evidence that she commenced with the interview with the father, formed the opinion that he did not have the capacity and that it was in his best interest to instead move to the tests at that point. When questioned further she advised the court that the father was not able to participate in the interview in a meaningful way, even to give basic demographic information, such that she terminated it after about 20 to 30 minutes. Her assistant then commenced the psychological testing and Dr C sat with her while that took place.
4. She advised that the father had become highly agitated and frustrated with her even if she asked the most basic questions. She gave evidence that during the interview she did challenge the father and try to bring him back to the questions that were asked but that she was unsuccessful in doing so. Ultimately she gave him time to discuss the matters that he wanted to discuss.
5. Dr C advised that her assessment should not be considered as based only on the two hours of the interview and assessment process, but rather accepted in the context of the collateral material she had reviewed. She advised the court that when somebody has a prolonged enduring mental illness they do not get better. She expressed the opinion that a litigation guardian could bring to an end the constant use of the court resources.
6. Given that the father had spent about eight months under the care of Dr D and 18 months with his therapist Dr E, the father suggested to Dr C that they would have a better understanding of his mental health. She acknowledged their differing opinions to her own but did not concede that point as she has a very different role as a medicolegal expert.
7. Her opinion was not moved by the father's presentation to her of the opinion of other medical professionals. She noted, persuasively, that unlike the father's treating therapists, she had the benefit of subpoenaed documents and affidavit material as well as what he tried to tell her. In other words, she had a more comprehensive picture of the father's history.
8. The father attempted to challenge Dr C's qualifications as compared to those of Dr D[8] but was unsuccessful. Dr C gave evidence that she has also been head of psychiatry and has also worked in the field of psychiatry for a long time.
9. Dr C was a persuasive witness. She was extensively cross-examined and taken through a number of documents about the father's mental health history. Her opinion remained unchanged. She was of the opinion that the father was in a very different position from a person who did not suffer from those disadvantages, being the delusions together with his disorganised speech and behaviour and his inability to make judgment calls about when to stop.
10. She was clear that he did not have the capacity to provide instructions. In her opinion, he has fixed false beliefs that lead to rigid thinking, and that no evidence to the contrary would shake those fixed false beliefs.
11. In relation to the likely benefits of treatment, her evidence was that people who suffer delusions are the most difficult to treat; they are treatment resistant. If the father underwent treatment as recommended in her report, she was not hopeful that his capacity to engage or work with a litigation guardian would change. Her opinion is that the father has a long pervasive mental illness that is not going to get better; that a litigation guardian would be the only way to bring these proceedings to a sensible conclusion.
12. Dr C explained that she did not explain her diagnosis and opinions to the father on the day, because she was not employed by the father; her duty was to the court. I note however that she did protect the father's interest by making a request that the report be explained to him by his treating health or mental health providers.
13. Dr C explained that she had not addressed the father's relationship with the mother or his time with the child in her report because that was not her job. She was engaged to undertake a psychiatric assessment of him, which, because of her concerns as to his presentation, included a full capacity assessment.
14. The father tendered a number of documents reflecting opinions which he believed did not align with those of Dr C. Despite this her opinion as to his capacity remained unchanged. Her opinion is that he is experiencing a pervasive and enduring psychotic illness. She expressed some alarm that one tendered document reflected similar behaviour by the father that she had seen in her interview and yet did not express an opinion that the father presented any risk. She felt that the description of the father's symptoms contraindicated any suggestion that there were no risk factors.
15. She was so gravely concerned about the father's presentation and apparent lack of capacity that she undertook a full capacity assessment, which is not part of her usual process.
16. She had grave concerns about the father representing himself without the benefit of a legal guardian in circumstances where he lacked capacity. She talked about an incapacity to weigh up options and the evidence; that because of his delusional beliefs he would continue to pursue outcomes that were not in his best interest or not achievable. She expressed the opinion that the father has fixed false belief which is the definition of delusion.
17. Dr C repeated that she was of the opinion that what he experienced was not a drug induced psychosis but rather a pervasive and enduring psychotic illness, and that was only reinforced by the father's suggestion that at times his illness had been triggered by a lack of sleep during periods when he was not using cannabis.
18. She was firmly of the opinion that it would be in the father's best interest to have a litigation guardian, even though she thought it was unlikely that he would welcome the appointment or work with the litigation guardian. It is her opinion however that left to his own devices, the father would not act in his own best interests, not because he did not want to, but because he did not have the capacity. A litigation guardian would support him and address the deficits where he has no insight or judgement.
19. She said that he had a poor prognosis despite his intelligence and resilience. She could foresee no circumstances in which he would have the capacity to work with a litigation guardian. She explained that delusions are treatment resistant.
20. She expressed the opinion that the father would become extremely elevated if his beliefs were challenged, and we saw some of that in the courtroom; she gave evidence of his emotional dysregulation and thought dysregulation. She explained that the father has been traumatised by his own thoughts and that it has been very difficult for him; that he had been consistently in fight or flight mode.
21. Dr C gave evidence that people with diagnoses of schizophrenia and substance use disorder do not necessarily lack legal capacity; it is the delusional aspect of his diagnosis that leads to her opinion in this case.
22. The father put to her that she had misinterpreted what he said about Donald Trump; that the remark had been intended to be that Donald Trump was attempting to manipulate world views and situations through the television rather than an expression that Donald Trump was directly speaking to him through the television. She conceded that the father might not have meant what she had interpreted him to say when he said that "Trump was controlling us through the TV" however in the context of his presentation and other remarks she continued to be of the opinion that it was a delusional remark.
23. She was asked to consider that at times the father was reported as floridly psychotic and was described as dynamic with thought disorder, and that in June 2021 he was diagnosed with delusional disorder.[9] Then on discharge after the June 2021 admission it was suggested the father had a level of insight and capacity to consent to treatment. Dr C gave evidence that the delusional disorder and insight are not congruent and noted that the father was readmitted to hospital shortly after the discharge and those comments.[10]
24. The father put questions to Dr C about his proposed Supreme Court proceedings and the mother lying, he believed, about her own mother. I understood this to be an attempt to demonstrate to Dr C that he was not paranoid but rather that his concerns were valid and based on his own experiences.
25. The father suggested to Dr C that there was some conspiracy, that she was involved in it, that she might know the mother's mother, who was apparently a psychologist, and that she had been paid to express those opinions about the father. Unfortunately for the father that simply supported Dr C's opinion in relation to the delusional aspect of his condition.
26. At the time the father was first admitted to hospital he had experienced a great deal of stress. He had lost his job, he had lost both of his parents and had lost contact with his child. He suggested to Dr C, and she agreed, that coming to court and having to discuss those challenges could exacerbate his mental health issues and impact on his capacity. She gave evidence that psychosocial stresses can exacerbate the condition of a person who suffers from a pervasive enduring psychotic illness.
27. Dr C's opinions and diagnoses were unchanged by the lengthy cross-examination. She was concise and clear as to the bases for her opinions. I accept her diagnosis and opinions.

1. The father's legal capacity is a legal not a medical question, though the court's determination is assisted by medical evidence. The court starts from the presumption that an adult person has capacity but that presumption can be rebutted.
2. I have considered that while the psychiatric report was filed on 10 February 2025, the assessment was over a year old. The interview of the father was undertaken on 2 October 2024 and the report released on 4 November 2024. In that report, Dr C stated the father was assessed as not currently having capacity in respect to legal, financial, and medical matters.[11]
3. Dr C references the State legislation which provides the following definition:

capacity, for a person for a matter, means the person is capable of -

(a) understanding the nature and effect of decisions about the matter; and-

(b) freely and voluntarily making decisions about the matter; and

(c) communicating the decisions in some way.

Note -

Under section 146(3) in deciding whether an individual is capable of communicating decisions in some way the tribunal must investigate the use of all reasonable ways of facilitating communication, which may include symbol boards or signing.

1. However, it is the definitions provided by the Family Law Act 1975 ("the Act") and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ("the Family Law Rules") which guide this determination, although that exercise is informed and assisted by the precedents and the state legislation.
2. The Act defines a litigation guardian as:

litigation guardian means a person appointed by the court under the applicable Rules of Court to manage and conduct a proceeding for a person who needs a litigation guardian (also known as a litigation supporter, litigation representative, next friend, guardian ad litem, case guardian or tutor).

3.12 Person who needs a litigation guardian

(1) For these Rules, a person needs a litigation guardian in relation to a proceeding if the person:

(a) does not understand the nature and possible consequences of the proceeding; or

(b) is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.

...

3.14 Who may be a litigation guardian

A person may be a litigation guardian in a proceeding if the person:

(a) in the case of an individual - is an adult; and

(b) in any case:

(i) has no interest in the proceeding adverse to the interest of the person needing the litigation guardian; and

(ii) can fairly and competently conduct the proceeding for the person needing the litigation guardian.

Note: A reference to a person includes a body politic or corporate as well as an individual (see subsection 2C(1) of the Acts Interpretation Act 1901).

3.15 Appointment of litigation guardian

(1) A person may apply for the appointment, replacement or removal of a person as the litigation guardian of a party.

(2) The court may, at the request of a party or on its own initiative, appoint or remove a litigation guardian, or substitute another person as litigation guardian, in a proceeding in the interests of a person who needs a litigation guardian.

(3) A person becomes a litigation guardian if the person consents to the appointment by filing an affidavit of consent in the proceeding.

(4) The court may, on the filing of an affidavit, remove a litigation guardian at the written request of the litigation guardian.

1. Then in the situation where no one is available to act as litigation guardian we turn to rule 3.16:

manager of the affairs of a party includes a person who is authorised by or under a Commonwealth, State or Territory law to conduct legal proceedings in the name of, or for, a person who needs a litigation guardian.

(2) A person who is a manager of the affairs of a party is entitled to be the litigation guardian in any proceeding to which the person's authority extends.

(3) If, in the opinion of the court, a suitable person is not available for appointment as a litigation guardian for a person who needs a litigation guardian, the court may request that the Attorney‑General appoint a person to be a manager of the affairs of the party.

(4) The Attorney‑General may appoint, in writing, a person to be a manager of the affairs of a party for the purposes of this rule, either generally or for a particular person.

(5) A manager of the affairs of a party becomes the litigation guardian of a person who needs a litigation guardian in a proceeding if the manager of the affairs of the party files an affidavit of consent in relation to the person.[12]

1. I have considered that the appointment of a litigation guardian is, in reality, for the benefit not only of the father but of benefit to the other parties to the proceedings, and in this case the child, whose care and living arrangements are under consideration and where proceedings and therefore uncertainty have been on foot since January 2021. I have considered that:

...rules as to capacity are designed to ensure that the plaintiffs and defendants who would otherwise be at a disadvantage are properly protected, and in some cases that parties to litigation are not pestered by other parties who should be to some extent restrained.[13]

1. I have considered the case of Masterman-Lister v Brutton [2003] 1 WLR 1511 where Chadwick LJ stated:[14]

For the purposes of [the relevant rule] the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law - whether substantive or procedural - should require the interposition of a next friend or guardian ad litem...

1. In summary, whatever the medical evidence may be the court must make its own assessment but informed by that evidence. The Victorian Supreme Court has considered the relevant authorities in the decisions of Slaveski v State of Victoria [2010] VSC 441 and Pistorino v Connell & Ors [2012] VSC 438. In the latter, Dixon J cited with approval the following relevant factors:[15]

(a) whether the person had the ability to understand that he or she required advice in respect of the relevant legal proceeding;

(b) whether the person had the ability to communicate this requirement to someone who could arrange an appointment with an appropriate advisor or, alternatively, whether he or she could arrange such an appointment of his or her own accord;

(c) whether the person had the ability to instruct the advisor with sufficient clarity to enable him or her to understand the situation and to advise the person appropriately; and

(d) whether the person had the ability to make decisions and give instructions based upon, or otherwise give effect to, such advice as might be received.

(a) Does the plaintiff understand the factual framework for his or her claims and the type of evidence required to succeed in his or her claims?

(b) Is the plaintiff capable of understanding what is relevant to the proceeding and what is not relevant when these matters are explained to him or her?

(c) Is the plaintiff capable of assessing any settlement proposal on its merits, having regard to the state of the evidence, the parties' submissions and other developments in the proceeding as at the time the proposal is made?

1. The assessment of legal capacity is one which is dependent on the facts of the case. In any litigation, but particularly family law litigation, the factual matrix may vary extraordinarily between matters which may on the face of it appear similar.
2. I am conscious that what is required to enable the court to find someone is lacking capacity is more than simply a challenging or difficult self-represented litigant who lacks good judgment; there must be something which sets it apart. For example late filing or failure to file material is common, as are concerns about the role and independence of the ICL, an obsession with the proceedings and the rejection of expert opinion. None of those factors in and of themselves mean that the litigant lacks capacity. It means rather that they are involved in complex litigation, that they feel, and indeed in many cases are, at a disadvantage and that they resent the opinions of experts and others when such opinions do not align with their own belief system.
3. The ICL made powerful submissions that the appointment of a litigation guardian would be a protective barrier between the father and these proceedings, which have now been on foot for almost five years, and empower him to engage through the litigation guardian and thus enable the proceedings to conclude.

1. The court's focus is rule 3.12 and in particular the determination as to whether the father needs a litigation guardian. I must determine whether the father does or does not understand the nature and possible consequences of the proceedings. I must determine whether he is or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
2. I am satisfied that the father does "understand the nature and possible consequences of the proceeding". He wants to see the child. He is vocal about the fact that he has not seen her for many years. He knows that these proceedings are about whether he will spend time with his daughter and that if he is not successful then a final order might be made for no contact to occur. In the Amended Response filed on 16 March 2022, the orders sought are as follows:
   • 50/50 care of child;
   • Child to live in Brisbane;
   • Child not to have passport until 18 years of age;
   • Father to be advised of child's school and the mother's address;
   • Time spending on birthdays and special days;
   • 50/50 school holidays;
   • Communication with the child twice weekly;
   • Child psychologist specialising in parental alienation;
   • Changeover rules;
   • No physical neglect;
   • Child focused language;
   • Rules regarding sickness and emergencies;
   • Parents to be truthful to avoid parental alienation;
   • Child to be taught phone numbers to call when experiencing serious violence or abuse.
3. So at that point in time the father knew enough to particularise what outcome he sought. I have considered that document was filed some three years ago and has not been updated although he proposes different orders in his affidavit.
4. The father has a long history of non-compliance with orders to file material. A few days prior to the final hearing intended to commence on 16 September 2024, the father filed the affidavit which he has been granted relied on for this hearing. That trial was adjourned and an order made for the father's psychiatric assessment. The trial was then listed on 25 August 2025 for a trial of three days. The directions made on 11 February 2025 provided for each party to file consolidated trial affidavits on or before 28 July 2025. The father did not comply. Further orders were made in Chambers on 13 May 2025 requiring the father to file an Amended Response and an updated Notice of Child Abuse, Family Violence or Risk on or before 25 July 2025. He did not comply with that order or the order for the filing of an Outline of Case document. Failure to comply does not necessarily indicate a lack of capacity. Unfortunately, many people fail to comply with court orders to file material for a number of reasons. It is however one of many factors that cause concern.
5. The father did not attend the court event on 8 August 2025. I have considered that this was unusual. I have considered that a s 102NA order was made on 20 October 2022. The court is informed that the father has been represented by three law firms under this order with the most recent appointment withdrawing on the first day as discussed earlier in these reasons.
6. The father has filed no material this year and the last affidavit the father filed was on 13 September 2024. That was almost a year prior to the hearing date. The affidavit is troubling for a number of reasons:

(a) Firstly although there was a solicitor on record for the father at the time, he filed that affidavit himself. His lawyer filed a Notice of Withdrawal nine months later, on 7 July 2025, with the replacement firm coming on board on 18 August 2025.

(b) It is some 286 pages consisting of a number of annexures.

(c) The annexures include his own evidence about a number of matters, some school reports for the child, F Centre records from 2016 - 2020 (some 160 pages) and copies of the mother's material and G Centre records both of which are heavily highlighted and annotated.

(d) There is little content that would assist me to make a best interests determination about the child's living and care arrangements. The focus is on the mother and her alleged conduct.

(e) The orders sought by the father in this affidavit, while referenced as interim orders, are for the child to live with him but include a request for orders well outside the jurisdiction of this court including:[17]

9. That the mothers transgenerational trauma being covered up by using the father as a family scapegoat to make historic false allegations is rectified through a lawsuit based on the father being her family scapegoat;

10. That her legal team at Gary Rolfe [...] be stopped from having no integrity as the mothers own mother is paying their legal fees in a legal hit job;

11. That the 15K I spent on a lawyer 2021 be refunded immediately;

12. That the stressful impact the mothers criminal actions has had on the fathers reputation, family, friends and career be monetised and paid back.;

13. That [Ms J]'s psychology title is taken away from her as an accomplice to a Federal crime;

14. That [Ms Canton]'s father is [City K]'s name is ordered to be provided to the father to investigate her crime of international abduction and transgenerational trauma.

(f) The affidavit reflects his belief he was being hacked by someone in the employ of the mother or her family.[18]

(g) His repeated evidence that the mother was lying and her lawyer was complicit in some way with that dishonesty.

(h) His intent to sue the mother and/or her legal team for $800,000 in the Supreme Court.[19]

(i) That he wishes to be told the mother's father's name so he can get lawyers in [City K] to investigate how much she was lying about him (her father).[20]

(j) That due to their perceived inherent failures the ICL and Court Child Expert should undergo training.[21]

1. The focus of the affidavit is largely historical and largely accusatory of the mother and her conduct and others whom the father sees as complicit.
2. I have considered the material tendered as to the father's mental health and drug use, the majority of which are from the period of 2021 - 2023 and well pre-date the expert psychiatric report obtained for these proceedings. The father's mental health, and his drug use, has clearly had ups and downs over the years. He has had voluntary and involuntary hospital admissions. At times he has been compliant with treatment. The overall picture from those documents is an ongoing struggle with his mental health in recent years. There is nothing tendered however that gives evidence of his current mental health or that would surprise Dr C.
3. The one document that post-dates Dr C's report is the email from Dr B dated 28 July 2025. He is a consultant psychiatrist, and was the father's treating clinician. As noted earlier, his opinion is that when he saw the father in 2023 a diagnosis of schizophrenia was not confirmed. As his attendance on the father was as a treating clinician he expressed that family law matters were outside the scope of his remit and made no observations as to risk or suitability as a parent. I have considered that although this letter post-dates the assessment of Dr C, it is based on attendance in 2023 - prior to Dr C's report. It is of little assistance in this determination as it is dated, does not actually make or deny a diagnosis and expresses no opinions about the father's mental health or the risk or otherwise that he may pose to the child based on those opinions.
4. So there is no psychiatric evidence to hand to assist the court other than Dr C's opinions. The material tendered predates that opinion, informed the opinion of Dr C and provides an holistic background for that opinion. No more. They do not undermine the validity of Dr C's opinion, although I have considered her evidence that different psychiatrists may have differing opinions as to diagnoses. It is simply that we only have one expert who has seen the court documents and the subpoenaed material as well as relied on information from the father and the tests administered or attempted to be administered. I have considered that the role of a medicolegal expert is very different to that of a treating physician; the medicolegal expert considers and challenges the evidence they receive in a forensic way while the treating physician is there to support and treat the patient.
5. I have considered that the father's cross-examination of Dr C was lacking in focus and not always supported by evidence. That however is not necessarily an indication of lack of capacity. Self-represented litigants are often unable to focus on the relevant issues and are not familiar with the rules of evidence or the inability to give evidence from the bar table.
6. I have considered that the father has applied for representation under the scheme, and has had the benefits of two replacements after each firm has ceased to act. I consider that reflects that on some level he accepts that he would be assisted by legal representation. I have considered that he has however been unable or unwilling to retain that legal representation on an ongoing basis and that he has independently filed material whilst legally represented.
7. I have considered that the father the most recent of the s 102NA appointments advised the court that they were unable to obtain meaningful instructions from the father despite repeated attempts to do so.
8. I have considered that the father has filed material reflecting that he seeks orders about parenting matters, reflecting his understanding of the focus of these proceedings. I have considered that the father has also sought orders well outside the jurisdiction of this court and indeed that are tangential to any consideration of this court. I am of the view this reflects an inability to retain focus on the relevant issues in dispute.
9. I have considered that the father's affidavit material is not child focussed, but rather focussed on his grievances with the mother and the system.
10. I have considered that the orders sought by the father, so far as they relate to child matters, seek an equal care arrangement for the child, or indeed primary care, with no evidence from the father about how that will work, whether there should be a build-up of time following a reintroduction after years of no contact, or how the child would be supported through that process. I am satisfied that he is unable to assess and address the merits of his own application let alone any settlement proposal that may be made.
11. I have considered that the father's cross-examination of Dr C was focussed on the challenge he makes to her diagnosis rather than how that impacts his ability to engage meaningfully in litigation. It is not the diagnosis itself that should be the focus but rather what factors leading to that diagnosis contraindicate capacity and what he has done to address those concerns.
12. I am of the view that Dr C's evidence suggests that while in theory the father may understand the nature and possible consequences of these proceedings, he does not understand that his own conduct and presentation have their own consequences.

1. Dr C gives evidence that the father has a high level of intelligence, and that is clear. I am therefore satisfied that on an intellectual level he knows what these proceedings are about. What however was apparent from his conduct at court and which confirmed Dr C's opinion, is that he is unable to manage his conduct or change his delusional belief system about the mother and the reasons for his lack of contact with the child. He loses focus on the child, or in this case the issue of his capacity, and lacks the ability to engage in a meaningful level in the proceedings.
2. I am satisfied that the father does not understand that he has strayed far from a child focus and does not understand the attacks on the mother and the system do not assist his case. For example, there is little in his affidavit material which tells me about:
   • The arrangements that would best promote the safety of the child or the mother and himself;
   • Any views of the child;
   • The developmental, psychological, emotional and cultural needs of the child;
   • The capacity of himself and the mother to meet those needs of the child;
   • The benefit to the child of a relationship with her parents and others significant to her care.
3. I accept the submission that the father's core focus is the issue of the injustice of his situation. There is a dearth of evidence that supports a focus on the child.
4. The first diagnosis in 2021 found the father had a delusional disorder and was preoccupied with the custody matters and his dismissal from work. Little appears to have changed.
5. The submission of the ICL is that the capacity issue does not arise from Dr C's diagnosis of paranoid schizophrenia, it is the delusional thought processes or focus on particular issues that is the crux. The submission was that a litigation guardian was necessary because of those delusional thought processes. I agree.
6. Having formed the opinion that the father does not have legal capacity, I considered the matter of Blum & Wolff [2025] FedCFamC1F 23 where all parties were in agreement that the relevant party lacked capacity and that a litigation guardian was needed. The issue was that there was no litigation guardian able to be identified. While the rules provide for a referral to the Attorney-General, her Honour expressed that the Attorney-General had no capacity to comply with such an order; that to make that order would be a waste of resources as there is no panel of practitioners who are available to accept an appointment by the Attorney-General. She saw no option but to stay those proceedings pending the appointment of a litigation guardian.
7. The ICL in this matter, having formed the view that the father did indeed require a litigation guardian, made enquiries to locate a resource who would take on that role. They were unsuccessful. The ICL advises that they are unable to obtain funding themselves to make an application in QCAT for the appointment of a litigation guardian to act for the father. The father was unwilling to do this himself as he sees no issue with his capacity. Calls to various other resources made by the ICL were also unsuccessful. No option was available on the day to be appointed a litigation guardian.
8. I have considered the ICL's submission that an order for a stay pending the appointment of a litigation guardian leaves the parties in limbo and places a burden on the father, whose capacity is in question, to move the matter forward. I have considered the mother's submission that a stay may be the closest thing that the court can give the parties by way of finality. I have considered that there are interim orders in place.
9. I was asked to consider the cost to the parties in terms of the ongoing proceedings since January 2021, the tremendous cost to the court in terms of time and the cost to the government who are financing these proceedings. It was submitted that the court needed to find a balance between the father's disability and his right to be heard and the need to finalise matters in terms of the overarching purpose of the legislation.
10. In the matter of Blum & Wolff [2025] FedCFamC1F 23 the issue of the father's capacity had been on record for over two years and the matter repeatedly adjourned to allow efforts to be made to have him assessed and a litigation guardian appointed. Despite the time and the efforts made this was simply not possible.
11. I have considered that in this matter the issue of obtaining a psychiatric assessment of the father was first noted in a court order on 5 June 2023, over two years prior to the hearing now being determined and was ordered on 16 September 2024.
12. In this case the father clearly wants to be heard as he attends court routinely, he applied for s 102NA legal representation and has filed some material. Indeed, he has had the opportunity to be heard, noting that undefended orders were made on 6 April 2021 in his absence, and thereafter the matter has been listed for trial on three occasions but has been derailed. On the first occasion the court expressed the view that it would be assisted by a psychiatric assessment; on the second occasion orders were made for the psychiatric assessment to be undertaken and on this third occasion the final hearing not proceed due to the opinion of Dr C as to the father's legal capacity. On each occasion however, trial directions were made and the father had the ability to file material.
13. I have considered that the court has made 21 orders in this matter over about five years and that the father has filed interlocutory applications in these proceedings on three occasions. The court was asked to consider the emotional distress experienced by the mother every time this matter came back before the court and she had to provide instructions, prepare material and so forth. I have considered that the mother was not the only one who was experiencing emotional distress, as it was quite clear that the father was experiencing his own trauma when the matter came before me and no doubt on each time the matter returned to court and there was no finalisation of the proceedings. It is likely there has also been an impact on the child - but that is an unknown.
14. I have considered the submission that a stay is not an ideal outcome but is a balance between the cost to the parties, to the court and to the public purse and the need to acknowledge the rights of the father and the mother to be heard and finalise the proceedings between them. It is not often that we have proceedings in this court that have been on foot for five years.
15. In considering the option supported by the ICL to refer the matter to the Attorney-General in accordance with rule 3.16(3), Justice Brasch looked back over two and a half decades to find a precedent where an appointment had successfully been made using this power - she was unsuccessful.[22] Her Honour in that matter, in addition to ordering the stay, granted leave to the legal representatives to forward the Reasons to "Legal Aid Queensland, the [relevant] Attorneys-General, the Queensland Public Advocate/Adult Guardian (however they are now named) in the hope that funding might be found for an appropriate institutional person to be appointed as the father's litigation guardian".[23] Despite those orders being made some eight months prior to the scheduled trial there was no evidence that any representation for the father was forthcoming.
16. The mother's submission echoed that but referenced an unnamed case where a State Public Guardian was appointed but in which the appointment was successfully appealed.
17. I have located a case where an order was made requesting the Attorney-General to appoint a person in accordance with rule 3.16(3), and where subsequently a Notice of Address for Service was filed.[24] Whether that was an appointment made by the Attorney-General or through a QCAT application or some other means is however unknown.
18. The father made submissions that his presentation, conduct and belief system contraindicated a diagnosis of schizophrenia, however, neither he nor I are qualified to make such a diagnosis. I do not dispute that the father feels he was persecuted and bullied in the workplace, that he believes he was not supported in managing that situation and further believes that he lost his job as a consequence of being a whistleblower. That is in the context of the father having a long and successful career with the public service. At around that time the father also lost both of his parents, then the relationship with the mother broke down and he lost contact with his daughter. In summary the father submits that his focus and rumination on those events is understandable. I have considered that his submissions were critical of the mother and his former legal representatives.
19. I have considered that it would be in the child's best interests for there to be a final resolution of these proceedings. I have considered that the current interim orders were made based on an assessment of the child's best interests.
20. The submission of the ICL is that the father does lack capacity in terms of rule 3.12 and that he does require a litigation guardian. The ICL submitted that when the father was under pressure the delusional thoughts that the system was against him came to the fore, but that other times he might manage relatively well. I have considered that while he is in the court system the father is always going to be under pressure and feel under attack because that is the nature of family law litigation, particularly when the mother is seeking a no contact order. Such orders are not lightly made and there must be good grounds for the court to make them. Unsurprisingly arguments in support of that are likely to feel very much like personal attacks.
21. The ICL did not support a stay, submitting that it was preferrable for either the father to remain self-represented or that Legal Aid Queensland be directed to find a litigation guardian for the father. The ICL was unable to point the court to any precedents where Legal Aid Queensland would undertake to find a litigation guardian for a party or what power I hold to direct Legal Aid Queensland to do so. I do have the ability to request Legal Aid Queensland to do what they can, and indeed I have no doubt of their willingness to support eligible parties, particularly those who labour under a diagnoses disability.
22. I have considered that if the father does not have legal capacity then he does not have the capacity to represent himself in this litigation.
23. The ICL noted that there was no evidence of hospital admissions for the father since he has been released from the treatment authority late in 2021, noting the dynamic nature of mental health disorders. The ICL, however, accepts Dr C's opinion that the father suffers from a persistent form of psychosis and that the court should order a litigation guardian, and believes firmly that Legal Aid Queensland should appoint that litigation guardian. While Legal Aid Queensland may have the power to fund a litigation guardian or to fund proceedings for the appointment of same, I am unaware of any cases where they have exercised that power not have I seen any evidence that they have a power of appointment. I am however no expert on Legal Aid funding.
24. I have considered that throughout the ICL's submissions the father repeatedly attempted to interject, repeatedly stood, and spoke to challenge what was said. This continued despite being advised by the court that he would be given an opportunity to respond. When given that opportunity the father advised the court he did not take drugs and did drug screens three times a year. The father was advised that the court could not accept that evidence from the bar table, however the ICL helpfully tendered drug screens with the consent of all parties.
25. Having considered the evidence before the court and the father's presentation and conduct of proceedings on both days, I am indeed satisfied that the criteria of rule 3.12 has been met. While on an intellectual level the father understands the nature and possible consequences of the proceedings, on a practical level I am satisfied that he is not capable of adequately conducting or giving adequate instructions for the conduct of proceedings due to:

(a) the diagnosis and opinions of Dr C;

(b) the quality and volume of the affidavit relied on by the father;

(c) the father's conduct in the court room, which echoed what Dr C saw - erratic and at times incoherent; and

(d) the father's inability to focus on and provide evidence and submissions about relevant matters.

1. That leaves the issue of where to from here. The father has no one he can put forward as a litigation guardian, even were he inclined to accept that he needs that support. The ICL was unsuccessful in their enquiries to assist the father. There appears limited hope that the Attorney-General may be able to assist.
2. There is much strength in the argument of the emotional and financial toll on the parties who have been readied for trial now on three occasions. That is untenable. Although the financial cost is met by the government through Legal Aid Queensland and s 102NA funding, the court will not further waste that precious resource. I have considered the likely emotional and psychological toll on all parties and the child.
3. Having considered those matter I intend to take a scatter gun approach.
4. I will formally request via these orders that the Commonwealth Attorney-General make an appointment in terms of rule 3.16 of a person to be manager of the affairs of the father for the purposes of this litigation. In doing so I acknowledge that although the power exists to make this order, it may well be fruitless, through no fault of the Attorney-General, simply that they also do not have the necessary resources, which is why I propose to make the order in conjunction with the stay, and the leave to the parties to use these reasons in the continued hunt for a litigation guardian.
5. The stay protects each party and the child from unnecessary litigation, while the parties have the power to make their own enquiries or application and yet makes an approach to the Attorney in circumstances where the efforts to find a litigation guardian to date have been fruitless.
6. I will however also give power to the ICL to bring the matter back before the court. It may be that further enquiries open another possible solution, or that further directions are needed. The option to being the matter back before me for further directions prevents it being lost in limbo.
7. I therefore propose to make an order to the effect that the father is a person who needs a litigation guardian. I will then respectfully request the assistance of the Attorney-General, but leave the door open to the parties to continue to make their own efforts.
8. I am satisfied that this is an order that does the best to address the parties rights to have a voice and be heard and also to have these proceedings finalised. I will also include a notation requesting Legal Aid Queensland to fund the father to have a litigation guardian appointed. Legal Aid Queensland have long been the bastion of the disadvantaged and those suffering from a disability and I am confident that if they can assist the father through funding or representation then they will do so.

1. I am satisfied that the father is a person in need of a litigation guardian. For the reasons set out above I make the orders as set out at the commencement of these reasons.

I certify that the preceding one hundred and twenty-nine (129) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cope.

[13]Masterman-Lister v Brutton [2003] 1 WLR 1511

[24] Dervis & Dervis [2022] FedCFamC2F 283