PRESCOTT and O'LEARY - [2025] FCWA 103

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: PRESCOTT and O'LEARY [2025] FCWA 103
CORAM: O'BRIEN J
HEARD: [REDACTED]
DELIVERED : Ex tempore
FILE NO/S: 2693 of 2020
BETWEEN: MR PRESCOTT
Applicant
AND
MS O'LEARY
Respondent

Catchwords:

PRACTICE AND PROCEDURE – Where the father has been found to be a person under a disability – Where the Attorney General is requested to nominate a Case Guardian – Where the Public Trustee cannot act as Case Guardian in parenting proceedings and the Public Advocate is the appropriate nominee - Where the Public Advocate has declined to accept appointment as Case Guardian after undertaking its own investigation and reaching a conclusion contrary to that of the Court – Where the Public Advocate declines the Court's request that it attend or be represented at a hearing listed for the purpose of considering whether information and documents in the possession of the Court might better inform its investigation – Where the Court has no power to order the Public Advocate to act as Case Guardian – Discussion of relevant principles

Legislation:

Family Court Act 1997 (WA)
Guardianship and Administration Act 1990 (WA)
Public Trustee Act 1941 (WA)
Family Court Rules 2021 (WA)

Category: Reportable

Representation:

Counsel:

Applicant	:	Self-Represented Litigant
Respondent	:	Ms A Sinagara
Independent Children's Lawyer	:	Ms N Chakich

Solicitors:

Applicant	:	Self-Represented Litigant
Respondent	:	Western Legal
Independent Children's Lawyer	:	Meillon & Bright

Case(s) referred to in decision(s):

Farrell v Allregal Enterprises Pty Ltd [No 2] [2009] WASC 65
Hearne and Anor v Street and Ors (2008) 235 CLR 125
W v S [2025] WASCA 21

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Prescott and O'Leary has been approved by the Family Court of Western Australia pursuant to s 236B(2) of the Family Court Act 1997 (WA).

This copy of the Court's Reason for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

Part 11A of the Family Court Act 1997 (WA) 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.

1This case is an example of the difficulties faced by litigants, and by the Court, when a party to proceedings lacks the capacity to conduct them and where there is no suitable volunteer to assume the responsibilities of a Case Guardian. As will be seen, the delineation of the responsibilities of relevant government agencies is problematic and the Court cannot in any sense compel them to assist. Where, as here, they decline to do so, the relevant proceedings are placed in limbo to the detriment of the party…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: PRESCOTT and O'LEARY [2025] FCWA 103
Case: [2025] FCWA 103
Decision Date: 1 May 2025

CaseChat Overview and Summary

In Prescott and O'Leary, the Supreme Court of Western Australia was presented with a complex situation involving the appointment of a Case Guardian for a father who had been determined to be a person under a disability. The father's capacity to participate effectively in parenting proceedings was in question, and the court needed to nominate a suitable individual to act as his Case Guardian. The Attorney General had been requested to nominate a Case Guardian, and the Public Trustee had been identified as a potential nominee. However, the Public Trustee could not act in this capacity, and the Public Advocate was deemed to be the appropriate nominee.

The primary legal issues before the court were whether the Public Advocate could be compelled to act as the Case Guardian despite their declination and whether the court had the power to order the Public Advocate to attend or be represented at a hearing. The court had to consider the principles governing the nomination of Case Guardians in such circumstances and the extent of its authority in directing the Public Advocate's actions. The court also needed to assess the implications of the Public Advocate's refusal to cooperate on the administration of justice and the father's rights in the proceedings.

The court determined that it did not have the power to order the Public Advocate to act as the Case Guardian or to compel their attendance or representation at the hearing. The court held that the Public Advocate's role was not mandatory in this context, and the decision to decline nomination was within their discretion. The court acknowledged the importance of the father's right to be heard and the need for an appropriate Case Guardian but found that it could not override the Public Advocate's decision. The court's decision was guided by the principles of fairness and the need to respect the autonomy of the Public Advocate in such sensitive matters. Ultimately, the court's ability to proceed with the case was constrained by the Public Advocate's refusal to participate.

Orders