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Dalley & Dalley & Anor [2021] FCCA 34 (20 January 2021)

This is an application for the appointment of a litigation guardian where insufficient medical evidence has been presented to support such application.


The husband is 68 years of age and the wife, 63. They married in 1979 and separated on 28 August 2011. They have two sons: Mr B Dalley who is 37 and Mr C who is 34.

Mr B Dalley gave evidence in his affidavit filed 30 March 2020 that Dr H provided a report in 2019 that his father lacked capacity to manage his affairs and that he has acted as the appointed power of attorney since that date. Mr B Dalley was not able to locate a copy of that report and therefore it is not before the court. A letter from Dr E from the J Clinic dated 2 March 2020 was however annexed. Dr E who appears to be a general medical practitioner had this to say: I certify that Mr Dalley suffers from Bipolar Disorder and Mood Disorder and is therefore does not have the capacity to provide instructions to lawyers in the family law matter due to his declining mental health.

Issue: Should a litigation guardian in favor of the husband be appointed?


  • Federal Circuit Court Rules 2001 R11.08 (Person who needs a litigation guardian)- (1) For these Rules, a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.


The court will rarely proceed to appoint a litigation guardian without medical evidence to establish the litigant lacks the requisite capacity.  Although Mr B Dalley annexed a brief report from Dr E and an Aged Care Assessment Team report to his affidavit, the court is not satisfied there is sufficient evidence before the court to establish that the husband does not have adequate capacity to understand the proceedings and to instruct his lawyers.

The two line report speaks to the ultimate determination rather than setting out the specific difficulties experienced by the husband that would enable to the court to determine the extent of his capacity.

The court needs to be satisfied at this point in time that the husband lacks the requisite capacity for these proceedings.  The report annexed to Mr B Dalley’s affidavit falls far short of the evidence needed.  The court is not satisfied that the case for the appointment of a litigation guardian has been made out and will therefore dismiss the application.

Conclusion: Court orders that the application be dismissed.

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Comments (2)
  • GP's short statement was correctly dismissed however I suggest the case should have been put off until a more qualified evidence was submitted (psychologist or psychiatrist) and order such a report.
    The FACT is that this was very disappointing in that the % of long duration and expensive cases are believed to be driven by some by people that have cluster B personality disorders and therefore incapable of rational compromise is well known but not researched. The reason is not known however denial of a person access to the legal system due to a disability may be one reason or perhaps the legal system does not want that exposed and the money pit dry up! The use of litigation rather than therapy results in too much damage to the children and society (except for the law societies).
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      If the son has POA and the father has no capacity. The POA would cease to function since only an EPOA or Enduring Guardianship can then function. And both are entirely different beasts
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