Vesper & Vesper [2026] FedCFamC1F 142 (5 March 2026)

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 the pseudonym Vesper & Vesper, approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. Before the court is the wife's application to appoint a litigation guardian on her behalf.
2. Neither the husband nor the Independent Children's Lawyer oppose the application.
3. After hearing submissions, orders were made acceding to the application and the wife's sister was appointed as her litigation guardian. The parties were advised brief reasons for the orders would follow.
4. These are my reasons.

1. The parties are engaged in parenting and property proceedings in this court, which are listed for a five-day trial commencing on 23 March 2026.
2. The wife has ongoing mental health issues and has been diagnosed with Complex Post Traumatic Stress Disorder, alcohol use disorder and borderline personality disorder. She receives regular treatment from both a psychiatrist and a clinical psychologist, both of whom have provided medical reports pertaining to the wife.
3. As recently as February 2026, the wife has been an inpatient in a hospital because of her mental health issues.

1. The wife relied upon the following documents:
   • Application in a Proceeding filed 19 February 2026;
   • Affidavit of the proposed litigation guardian filed 19 February 2026;
   • Affidavit of wife's solicitor filed 19 February 2026;
   • Affidavit of wife's psychiatrist filed 24 February 2026; and
   • Affidavit of the wife filed 24 February 2026.
2. Neither the husband nor the Independent Children's Lawyer filed any material.

1. The appointment of a litigation guardian is governed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
2. Rules 3.12 and 3.15 provide as follows:

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.

(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 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. Counsel for the wife conceded the wife's application did not fall within r 3.12(1)(a) because the wife clearly does understand the nature and possible consequences of the proceeding, albeit her understanding and capacity may fluctuate.
2. On 2 September 2025 the wife's psychiatrist prepared a report[1] ("the first report") addressing her legal capacity and mental health conditions. In that report her psychiatrist opined the wife understood the nature and effect of settlement proposals then being made, was able to give informed instructions regarding her response to the proposals, could participate meaningfully in the conduct of the trial if the litigation remained unresolved and had the legal capacity to instruct legal practitioners, understand and accept legal advice and engage in making decisions about settlement negotiations and the trial process.
3. A further report from her psychiatrist dated 17 December 2025[2] did not demur from that opinion and provided further updated details of the wife's mental health.
4. In a third report dated 23 February 2026, the psychiatrist opines the wife's capacity as identified in the first report, fluctuates in relation to deterioration in her mental state. The psychiatrist also identified the wife's capacity to provide informed instructions had been adversely affected by her decline in her mental state.
5. The wife's treating psychologist also provided a report dated 15 December 2025[3], which details the wife's treatment of 31 sessions, current diagnosis, diagnosis conducted by other professionals and a proposed treatment plan.
6. Counsel for the wife relied upon r 3.12(1)(b) and submitted the court should find that requiring the wife to conduct the proceedings without a litigation guardian would expose her to extremely adverse health consequences and possibly requiring readmission to a mental health facility.
7. The wife's counsel relied upon the comments of Strickland J in Genesalio & Genasalio [2019] FamCAFC 85 at [21], Finn J in Palmer & Palmer [2009] FamCAFC 9 and Macmillan J in Sung & Sung [2014] FamCA 637 at [13].
8. All three authorities were decided under the prior rules of court (Family Law Rules 2004 (Cth) rr 6.10, 6.08A, 6.09, 6.09 and Part 6.3) in the context of whether the applicant for the appointment of a litigation guardian was a person with a disability who is not capable of adequately conducting their case. Rule 3.12 is essentially in the same terms.
9. In the circumstances of this case and relying on the evidence of the wife's treating psychiatrist and her treating psychologist, I am well content the wife is not capable of adequately conducting or giving adequate instructions for the conduct of the proceeding as required by r 3.12(1)(b) and that orders should be made as sought by the wife.
10. As to the appointment of the wife's sister as her litigation guardian, there was no suggestion she was not a suitable person to assume the responsibility. I note in her affidavit[4] she deposes to her excellent and supportive relationship with the wife, her relevant professional qualifications and her consent to be so appointed.
11. The orders were made for the above reasons.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams.

[1] Annexure 1 to the affidavit of the wife's psychiatrist filed 24 February 2026

[2] Annexure 2 to the affidavit of the wife's psychiatrist filed 24 February 2026

[3] Annexure 3 to the affidavit of the wife's solicitor filed 19 February 2026

[4] Affidavit of Ms B filed 19 February 2026