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 under a disability, the other party, and (in a parenting case) the children the subject of the litigation.

Background and commencement of the current proceedings

2[Mr Prescott] ("the father") and [Ms O'Leary] ("the mother") lived together in a de facto relationship before separating in April 2018. They have a son [Child A] born [in 2012] and a daughter [Child B] born [in 2014]. The children presently live with the mother.

3[In] July 2020, final orders were made by consent for the mother to have sole parental responsibility for the children, and for them to live with her and spend time with the father as agreed. The father has subsequently given evidence that he attended the relevant hearing "unrepresented and in an activated emotional state" which "seriously impacted [his] capacity to make an informed decision."

4The present proceedings were then commenced by the father in a Form 1 Initiating Application filed only three months later [in] October 2020. He sought to set aside the parenting orders to which he had recently consented. While the application, prepared by solicitors then acting for the father, is not well drafted, it appears that what was intended was that he would propose an equal shared care arrangement.

5That application was opposed by the mother. Initially, a clinical psychologist was appointed as the Single Expert Witness. After expressing concerns as to the complexity of the father's presentation, the psychologist withdrew his consent to that appointment and urged the appointment of a psychiatrist. Orders were then made by consent [in] March 2022 appointing [Dr C] as Single Expert Witness, to include a psychiatric assessment of both parties.

6[In] April 2022, the mother filed an Amended Form 1A Response, seeking orders for alteration of property interests. The father filed a Form 1B Reply [in] June 2022 which did not address that issue, but simply stated "I would like custody of my children due to [Ms O'Leary's] apparent unmanaged malignant narcissism".[1] Nevertheless, following a Conciliation Conference [in] August 2022, at which the father was represented by lawyers, final orders for alteration of property interests were made by consent.

[1] That document was filed personally by the father, notwithstanding that solicitors were then on the record as representing him.

7Difficulties arose in the implementation of those orders. [In] September 2023, the mother filed a Form 2 Application seeking to enforce them.[2] [Later in] September 2023, without the benefit of legal representation, the father filed a Form 2A Response opposing that application and proposing orders that he receive 100 percent of "property matters", due to "modernslavery attempts and extreme C PTSD symptoms (sic)", and seeking "access to Children immediately as per all reccommendations (sic)". That response was accompanied by a lengthy affidavit, the content of which need not be summarised for present purposes.

[2] Commencing what will be referred to as the "financial proceedings" for simplicity.

8The primary orders made by consent [in] July 2020 have not been set aside or discharged but have been supplemented by orders made [in] August 2021 restraining the father from attending at the children's school and giving him liberty to provide presents and/or cards for the children via the Independent Children's Lawyer ("ICL").

The Court's efforts to secure the appointment of a Case Guardian

The initial findings and request to the Attorney General

9At a hearing [in] October 2023, the Magistrate who had maintained conduct of the matter for some time recorded his finding that the father lacked the capacity to understand and conduct the litigation. The content and tenor of the documents prepared and lodged by the father clearly supported that finding, which was informed by the report of [Dr C], which by then was in evidence. As no volunteer to take on the relevant responsibilities was identified, the Court requested that the Attorney General nominate a Case Guardian for appointment by the Court.[3]

[3] Pursuant to rule 106 of the Family Court Rules 2021 (WA).

10[In] November 2023, the Attorney General wrote to the Court indicating that the Public Trustee could not consent to act as Case Guardian for the father in circumstances where the parenting proceedings remained on foot. The view was expressed that "the Public Advocate is the appropriate statutory body to act on behalf of a person with a disability in parenting proceedings… where there is no one else suitable." The Attorney General noted that the Public Advocate "requires a valid appointment as a limited guardian in respect of a represented person under the Guardianship and Administration Act 1990 (WA) before they will so act". He expressed the view that the most appropriate course was for the matter to be referred to the Public Advocate for it to consider making an application to the State Administrative Tribunal for a limited guardianship and administration order. It may be inferred that the initial proposition was that upon the making of that order, the Public Advocate would act as Case Guardian in both the parenting and financial proceedings.[4]

The Public Trustee is appointed to act in the financial proceedings and the Public Advocate declines to act in the parenting proceedings

[4] As the guardianship order would be required to authorise the acceptance of that role in the parenting proceedings and the administration order would serve the same function in the financial proceedings.

11In response, at the direction of the presiding Magistrate, the Principal Registrar wrote to the Attorney General noting the separate financial and parenting proceedings and requesting that consideration be given to the appointment of the Public Trustee as Case Guardian for the father in the financial proceedings only. While on the face of the initial response from the Attorney General that request may not have been necessary, as it transpired it was prudent.

12There then ensued correspondence between the Court and [Mr E], a Senior Investigator Advocate at the Office of the Public Advocate. [Mr E] raised various questions, which were promptly answered. He was provided with a detailed explanation of the circumstances which led to the Magistrate making the finding referred to above and was given a copy of the report of [Dr C] and relevant correspondence.

13[In] December 2023, the Attorney General nominated the Public Trustee for appointment as Case Guardian for the father in the financial proceedings. The relevant consent was given, and the appointment was made. The proceedings relating to the enforcement of the financial orders were then promptly concluded, not least because settlement on sale of the relevant property pursuant to the primary orders had by then been completed and the need for active enforcement of those orders fell away.

14The substantive parenting proceedings commenced by the father, however, remained on foot. The finding by the Magistrate that the father did not have the capacity to conduct those proceedings remained in place.

15[In] December 2023, [Mr E] wrote to the Court to advise that a Community Referred Investigation had been conducted and that the Public Advocate was "satisfied at this point in time that [the father] does not require the appointment of a guardian or administrator" and "the Public Advocate [had] therefore decided not to lodge any application with the State Administrative Tribunal." The letter concluded by advising that the Public Advocate had closed its investigation. Further detail as to just what the investigation entailed was not provided. No explanation was provided as to why the Public Advocate had reached a conclusion contrary to the findings of the Magistrate and inconsistent with the prior appointment of the Public Trustee.

16By virtue of that determination the parenting proceedings in this Court were placed in limbo. They could not proceed in the face of the clearly correct finding of the Magistrate that the father lacked the requisite capacity to conduct them, and the statutory body established to assist persons lacking capacity declined to do so.

Subsequent developments

17[In] July 2024, the parenting proceedings were adjourned generally pending "the obtaining of the capacity assessment" of the father, for which the ICL had sought and obtained limited funding from Legal Aid Western Australia. The father did not appear at the relevant hearing and was at the time an inpatient in a psychiatric ward at [a hospital].[5] He was initially admitted on an involuntary basis after displaying disorganised behaviour. At one point, he was recorded as having gone missing from the hospital and attended a police station to "report his own death". He was subsequently placed in a locked ward. He was discharged from hospital [in] July 2024, after a stay of 39 days.

[5] The [Mental Health Service], which forms part of the suburban hospital and was responsible for the father's psychiatric care.

18The mother later brought an interim Form 2 Application seeking orders permitting her to take a holiday overseas with the children. Orders were made [in] December 2024 permitting that travel, effectively on an ex-parte basis given the father's lack of capacity.

19The father subsequently sent various emails to the Court, in which he called for relevant judicial officers and the ICL to be killed. [In] December 2024, the Chief Judge prohibited him from attending at the Court premises and directed that his participation in any future hearings be by telephone. The proceedings were removed from the docket of the relevant Magistrate and assigned to me.

Further efforts to secure assistance for the father and the listing of today's hearing

20[In] February 2025, and with the consent of the mother, the ICL sought permission to provide a copy of the report of [Dr C] to the father's treating practitioners at the [Mental Health Service] ("the [Mental Health Service]"). That permission was appropriately sought, but the consent of [Dr C] had not been requested.

21I made chambers orders [in] March 2025 listing the proceedings to a hearing today. It was made clear on the face of the orders that the matters for consideration at the hearing would be the requested provision of reports to the [Mental Health Service], and whether the Public Advocate should be granted permission to inspect and copy documents produced under subpoena. The anticipated purpose of such permission was to assist the Public Advocate and better inform its consideration of the need for an appointment of a guardian and/or administrator for the father. Those documents include comprehensive notes produced by the [Mental Health Service], which have been received into evidence.

22The ICL was given liberty to provide a copy of those orders to the [Mental Health Service] and to request that the relevant practitioner advise the Court as to whether they sought a copy of the report of [Dr C] to assist in the assessment of appropriate treatment options and services for the father. The ICL was directed to serve a copy of the orders on the Office of the Public Advocate, which in turn was requested to participate in the hearing by having the relevant officer appear with or without representation.

23[In] March 2025, the father sent an email to my chambers which made it clear that he had received and read those orders, while asserting that he is "perfectly normal and sane" and has "no disease", but rather "Complex PTSD which is environmental domestic slavery via neurological or torture and torment 6B41." He expressed the view that no hearing was required. While the proceedings on foot were commenced by him to set aside the parenting orders to which he had consented, he said further that the orders were working well and asked to see the children "this Sunday".

24[In] April 2025, the Court was advised that the father was to be managed in an outpatient setting by a team under [Dr D], a consultant psychiatrist. A copy of the report of [Dr C] was requested. [Dr C] provided her consent to the release of a copy of her report to the father's treating mental health practitioners, and that release was approved.

Today's hearing

25The mother was represented by counsel at today's hearing.

26The ICL advised the Court yesterday that she had spoken with the children by telephone [in] May 2025, having met with them in person in mid-2024. Relevantly, she said that the earlier meeting had resulted in the exchange of gifts and other items between the father and the children, and that during the telephone conversation the children reported having recently spent some limited time with the father in the presence of his support worker and the mother. They visited shops together and the children chose Christmas gifts. Both children spoke with affection about the father and said that they miss him. Both demonstrated sadness about the current circumstances and said that they would like to spend time with him.

27I enquired as to what steps had been taken towards the preparation of a "capacity assessment" pursuant to the orders made [in] July 2024. I was told it has not advanced to this point, although [Dr F] has indicated his willingness to undertake it. That said, [Dr F] could not undertake the assessment before November this year and has foreshadowed a cost of $8,000, which exceeds the funding allocation presently made by Legal Aid Western Australia.

28The Court contacted the father by telephone during the hearing. The father confirmed that he has engaged with the Public Advocate and that his preference would be that the court proceedings do not continue. He would agree to submit to a psychiatric assessment, but regards the existing report of [Dr C] as inadmissible, saying that it has been interfered with. He questions the probative value of the documents produced by the [Mental Health Service] and sees no complication in representing himself.

29Despite the Court's clear request to the Public Advocate, which was acknowledged by their office, no officer of the Public Advocate attended the hearing. Instead, a relevant officer wrote to the Court in terms outlined and discussed in more detail below. As will be seen, I regard the approach taken by the Public Advocate, apparently as a matter of internal policy, as inappropriate and unhelpful. That is so notwithstanding any degree to which resourcing issues may be thought to inform that policy.

Initial observations – the roles of the Public Trustee and the Public Advocate, and their interaction with courts

30The Public Trustee is established by the Public Trustee Act 1941 (WA) ("the Public Trustee Act"), which also defines its role, powers and functions. As already noted, the Attorney General,[6] on advice and consistently with the stated object of the Public TrusteeAct,[7] supports the expressed view of the Public Trustee that it cannot appropriately be appointed as a Case Guardian other than in a financial case. This Court does not in any event have the power to directly appoint the Public Trustee as a Case Guardian; s 7 of the Public Trustee Act empowers only the Supreme Court to do so in proceedings in that court. This Court can only appoint the Public Trustee as Case Guardian with its consent.

[6] Albeit, not the current Attorney General, but there is no reason to suppose a different position would be adopted.

[7] Public Trustee Act 1941 (WA), s 1A states "to provide community services in respect of trusts, estates and related matters".

31The Office of the Public Advocate is established by the Guardianship and Administration Act 1990 (WA) ("the Guardianship and Administration Act"). Again, its role, powers and functions are defined by the legislation. It is empowered to make applications to the State Administrative Tribunal under the Guardianship and Administration Act, and to act as a guardian or administrator for a represented person when appointed by the State Administrative Tribunal to act in that capacity. Again, this Court does not have the power to make such an appointment and can only appoint the Public Advocate as Case Guardian with its consent, and after the relevant appointment has been made by the State Administrative Tribunal.

32Thus, in circumstances where no suitable volunteer is available to assume the role of Case Guardian for a person under disability in proceedings in this Court, no power rests with the Court to compel either of the agencies charged with statutory responsibility to support and assist persons under a relevant disability to take on the role.

33More specifically, where this Court has made a finding that a litigant is a person under a disability in the relevant sense, that finding does not bind the Office of the Public Advocate, which retains its investigatory function under s 97(1)(c) of the Guardianship and Administration Act. That function empowers the Public Advocate to "investigate any complaint or allegation that a person is in need of a guardian or administrator". It is that investigation, conducted by investigators employed by the Office of the Public Advocate, which informs its decision as to whether an application to the State Administrative Tribunal will be made. The extent, if any, to which the determination by this Court that the relevant person is under a disability[8] informs that decision is a matter entirely at the discretion of the Public Advocate.

[8] And thus, in the view of the Court, in need of a guardian and/or administrator to conduct the proceedings as Case Guardian.

34Thus, this Court may make a finding that a party is a person under a disability and the Public Advocate may simply state that it disagrees and take no further action, as occurred in this case. That leaves the person under a disability unable to conduct their case, and the other party to the case unable to proceed.

35Difficulties of the nature just briefly summarised are not limited to proceedings before this Court. Pullin JA has observed:[9]

Having stated my conclusion,[10] I should observe that in my opinion legislative attention is required in this area. I say this because of the uncertainty created by the existence of the Guardianship and Administration Act and s 7 of the Public Trustee Act. It would surprise me if there has not been discussion or debate between the Office of the Public Trustee and the Office of the Public Advocate about who carries the responsibility for acting as a litigation guardian of last resort. This is because on the one hand the Guardianship and Administration Act authorises the State Administrative Tribunal but not the Supreme Court to appoint the Public Advocate to act as guardian or administrator, with the result that the Public Advocate would then be obliged by O70 to act as litigation guardian, whereas, on the other hand, s 7 of the Public Trustee Act authorises [the Supreme Court] but not the State Administrative Tribunal to appoint the Public Trustee as litigation guardian. The result of that bifurcation in the legislation is seen in this case where both authorities resist appointment as litigation guardian. Both claim to be too underfunded or under resourced to be able to take on the role as litigation guardian.

The response of the Public Advocate to this Court's request that it participate in the hearing

[9] Farrell v Allregal Enterprises Pty Ltd [No 2] [2009] WASC 65, [41]; cited in W v S [2025] WASCA 21, [54].

[10] That the Supreme Court had no power to appoint the Public Advocate as next friend in proceedings in that court without the Public Advocate's consent.

36By letter dated [redacted] May 2025, the relevant officer of the Public Advocate advised that [they were] "unable" to participate in today's hearing.

37Yesterday, my staff contacted the relevant officer and enquired as to whether her inability to attend the hearing was due to a timing or scheduling issue. If so, the possibility of rescheduling the hearing was proffered. They were told that rescheduling the hearing would not assist, as the relevant officer would still be unable to attend as a matter of course. While the officer concerned made efforts to be helpful, it was made clear that as a matter of policy by which [they] [were] bound, and at the directive of the legal team at the Office of the Public Advocate, [they] would not be able to attend.

38It appears that the internal policy adopted is that representatives of the Public Advocate will not attend a hearing at this Court, even if requested to do so, unless and until the Public Advocate is appointed as Case Guardian. Of course, that appointment can only be made with the consent of the Public Advocate, and only after the Public Advocate has, at its sole discretion, made application to the State Administrative Tribunal.

39It is both surprising and disappointing that a statutory body established to protect the personal and legal rights of vulnerable persons would decline a request from a superior Court that it attend a hearing. That is particularly so when the hearing in question is scheduled for the express purpose of considering how those rights might appropriately be protected, and how the Court might assist that statutory body to better undertake its function by granting it access to information it might not otherwise have.

40The response is even more surprising when the statutory body is aware that the Court has made a finding of incapacity. While I accept that the Public Advocate has its own investigative function, and must exercise that function independently, it is remarkable that it would initially dismiss the relevant finding, and then decline a request to then engage with the Court other than by correspondence. One might reasonably expect that in the proper discharge of its duties the Public Advocate would feel compelled to ensure that it had a full understanding of the basis upon which the finding of incapacity had been made, before being dismissive of it.

41Frankly, that would be so even if the finding of incapacity were not so unarguably correct as it is in this case.

42Indeed, the most recent correspondence from the Public Advocate confirms that, following receipt of the orders made [in] March 2025, its officers have spoken both with the ICL and with the father. The father's "presentation and responses to questions" lead the relevant officer[11] to "believe that there is a need to further investigate his capacity", and to "identify a need for a referral pursuant to section 97(1)(c) of the Guardianship and Administration Act 1990". Thus, the present position of the Public Advocate is that further investigation of the question of the father's capacity is required, yet it has declined a request to attend this hearing listed for the purpose of considering whether information and documents might be released to it by the Court to inform that investigation.

[11] A different officer, who did not conduct the earlier investigation.

43The father apparently told the relevant officer that the parenting orders which his application seeks to set aside are working effectively and had no clear understanding of why the current proceedings (which he commenced) are on foot.

44The father has earlier expressed a consistent view in his correspondence to the Court. The mother has sought that the father's substantive application simply be dismissed. Of course, no such step can be taken in circumstances where the father has been found to be a person with a disability in the relevant sense; the proceedings cannot be continued, even to dismiss all outstanding applications and responses, without a Case Guardian in place.

45In the same letter, the Public Advocate requested that the Court consider providing it with the subpoenaed materials, and any court orders made to date to "assist in identifying if [the father] would benefit from an application being made to the State Administrative Tribunal for the consideration of the appointment of a guardian."

46Had the Public Advocate attended the hearing as requested, the difficulties which arise from its response and request for access to the documents in the possession of the Court could have been explained, discussed and addressed. Instead, it has become necessary to explain those difficulties in this judgment, which will be published to the parties and to the Public Advocate.

47Those difficulties arise in relation to a variety of questions.

The first question – is the capacity assessment for which the Independent Children's Lawyer has obtained limited funding necessary?

48As will be clear from the observations already made, from the Court's perspective the answer to this question, at least at this stage, is "no". The relevant finding of disability has been made. It was clearly correct at the time it was made, and subsequent events, the father's actions and documents, and the subpoenaed medical records in evidence, simply reinforce that it remains correct.

49I had intended to ask the Public Advocate whether, notwithstanding that, the exercise of the Court's power to compel an assessment and the grant of access to relevant court documents, coupled with orders permitting the use of the assessment and documents in any application to the State Administrative Tribunal, might be of assistance to it in the exercise of its responsibilities to the father.

50As the Public Advocate chose not to attend the hearing, that dialogue could not occur.

51I do not require the ICL to take any steps to advance the capacity assessment, nor spend Legal Aid funds doing so, at this stage. That question can be revisited at the request of the Public Advocate (or for that matter the request of the ICL or the mother if the Public Advocate maintains its limited engagement) if need be.

The second question – should the Public Advocate be given access to court documents, the Single Expert Witness report, and documents produced under subpoena?

52By its letter, the Public Advocate has requested access to those documents. Again, it is not as simple as that.

53Fundamentally, documents filed by the parties in proceedings in this Court are confidential to those parties. Section 236B of the Family Court Act 1975 (WA) prohibits the communication to the public of any account of proceedings that identifies parties or others involved in them. Documents produced by parties in the course of disclosure, and documents produced to the Court by others for the purposes of the proceedings, must not be used for any purpose other than that for which they were given, unless and until they are received into evidence.[12] Documents of that nature may not be disclosed, nor their contents disclosed, to any person without the Court's permission.[13]

Access to court orders and documents filed by the parties

[12] Hearne and Anor v Street and Ors (2008) 235 CLR 125, [96].

[13] Family Court Rules 2021 (WA), r 203.

54That said, publication to a specific person, class of persons, or organisation can be readily permitted by the Court in appropriate cases. The obvious example is the common practice of permission being granted for the provision of court orders to schools attended by the children the subject of those orders.

55To grant that permission, however, the Court must be satisfied that the provision of the documents to third parties is appropriate and reasonably required. It must afford the parties the opportunity to be heard on the point and consider what (if any) safeguards and limitations should be imposed.

56Beyond the bald request made in its letter, I do not know the basis upon which the Public Advocate contends that access to the documents filed by the parties is appropriate and reasonably required. That is so, as I have been given no indication as to what other information the Public Advocate already has. I hasten to add that I would anticipate that both conditions are likely readily satisfied – but I cannot simply act on that assumption.

57Again, I had intended to raise that with the Public Advocate or its representative at this hearing.

Access to the report of [Dr C]

58Similar observations apply. In addition, where [Dr C] provided her report for the specific purpose of these proceedings, I would not authorise its release to third parties without first seeking [Dr C's] consent.

59I had hoped to enquire of the Public Advocate or its representative at this hearing as to whether it sought a copy of that report, and to explain the circumstances in which it was obtained, the terms of reference it addressed (which were not specifically directed to questions of capacity) and its timing by reference to subsequent events. It may well be that on receipt of that information, the Public Advocate would not seek a copy of the report, and the additional step of seeking the consent of [Dr C] would be unnecessary.

Access to medical records and other document produced under subpoena

60Documents produced under subpoena attract different considerations to those already outlined, notwithstanding that they have been received into evidence. That is so, as the documents are produced to the Court under compulsion, and subject to the right of the subpoena recipient to object to inspection by parties and their representatives. Even where no such objection is raised, the subpoena recipient is entitled to proceed on the clear basis that the documents will not be disclosed to any third party.

61The documents produced under subpoena, including reports, notes and clinical observations of the mental health professionals involved in the care of the father, clearly support the conclusion that the finding of disability made by the Magistrate in 2023 was correct, and remains so.

62It may be that the Public Advocate considers that its responsibility to independently investigate relevant matters does not permit it to simply accept the findings of the Magistrate, and my confirmatory and current finding, and to act on them. In the absence of submissions, I make no further observations on that point, other than to acknowledge that such a view, if held, would not be inconsistent with the absence of legislated power of this Court, or for that matter the Supreme Court, to compel the Public Advocate to accept appointment as a Case Guardian.

63Proceeding on the assumption that is the view of the Public Advocate, the question then arises as to whether the documents concerned are likely to be relevant and of probative value in the exercise of that independent investigatory function. The answer to that question is clearly "yes".

64Further questions then arise.

65First, the parties must be afforded the opportunity to address the question of whether the documents should be released. That was one of the purposes of this hearing. No objection has been raised by the mother, and the ICL supports the release. The father, albeit with some hesitancy, did not actively oppose the release.[14]

[14] Although, given he is a person under a disability, I do not suggest that he is relevantly bound by that.

66Second, the subpoenaed parties must be given the opportunity to raise any objection. There was no point in putting the subpoenaed parties to the trouble and potential expense of considering that question until the parties and the Public Advocate had been heard or given the opportunity to be heard. I propose now to make orders requiring the relevant subpoenaed parties to raise any objection within a specific time frame; self-evidently, if they have no objection, they need not do anything. If they do object, the determination of that objection would be better informed by submissions not only by the parties and the ICL but also by the Public Advocate.

67Third, on the assumption that subpoenaed documents are to be released to the Public Advocate, consideration must be given to the question of what limitations or conditions (if any) should be imposed. I do not know, for example, whether upon inspection the Public Advocate would seek liberty to produce the documents in any application to the State Administrative Tribunal. Thus, I do not know whether for that reason, or other reasons potentially associated with its internal decision-making processes, the Public Trustee would consider that an order permitting its officers to inspect but not copy the documents would be insufficient for its purposes.

68If permission to copy the documents is sought, I do not know whether the Public Advocate has particular obligations to retain documents once received for a specific timeframe, or whether an order for subsequent destruction or return of the documents could appropriately be made, as might more typically be done.

69Without unduly labouring the point, again those are all matters I had intended to address in open and transparent dialogue with the Public Advocate or its representative had they attended the hearing as requested.

70Attendance as requested would also have facilitated a consideration of the "need for a referral pursuant to section 97(1)(c) of the Guardianship and Administration Act 1990" identified by the Public Advocate in its recent letter.

71Section 97 of the Guardianship and Administration Act sets out the functions of the Public Advocate. Section 97(1)(c) includes in those functions –

to investigate any complaint or allegation that a person is in need of a guardian or administrator, or is under an inappropriate guardianship or administration order, or any matter referred to him by a court or under section 98.

72Of course, by its correspondence [in] December 2023 the Public Advocate has confirmed that it had investigated the matter first referred to it by the Court via the required request to the Attorney General [in] October 2023. By its correspondence dated [redacted] May 2025, the Public Advocate has confirmed that it has undertaken some further investigation consequent to my orders [from] March 2025 and seeks access to documents so as to investigate further.

73It is not apparent to me that any further referral by this Court is required, nor that there is any other formal step to be taken by the Court to trigger the investigation, but if I am wrong in that understanding I would have sought to address it at today's hearing.

Disposition

74As will be clear, in my view, the apparent policy reflected by the Public Advocate declining the Court's request that it attend at today's hearing is unhelpful, inefficient and wrong.

75I propose to adjourn the hearing for a number of reasons.

76The adjournment is required to afford the persons and organisations who have produced what would otherwise be confidential documents the opportunity to be heard if they object to the provision of those documents to the Public Advocate.

77It is also required to enable the Public Advocate to consider the matters raised above as to whether it should be provided with copies of documents or merely be permitted to inspect them, what conditions might apply to that, and whether those conditions if imposed run in any way contrary to its own obligations in relation to the management and retention of information and documents.

78The adjournment is also necessary to afford the mother and the ICL the opportunity to be heard if in fact the Public Advocate intends to seek permission to place evidence, orders, or subpoenaed documents from this Court in evidence in any application to the State Administrative Tribunal.

79I intend to publish a copy of these reasons to the Public Advocate to inform what I hope will be a reconsideration of its position as to the Court's request that it participate in what will be the adjourned hearing. Had it attended today, all of the matters just articulated could have been addressed with it, and a further hearing avoided absent receipt of any objection from a subpoenaed party.

80There will be the following orders:

1.The letter [redacted] May 2025 from the Independent Children's Lawyer regarding the children, [Child A] born [in] 2012 and [Child B] born [in] 2014 and the documents produced under subpoena from the [Mental Health Service] are received into evidence.

2.The proceedings are adjourned for further hearing at 10.00 am on [redacted].

3.The Office of the Public Advocate is requested to participate in that hearing, by having the relevant officer appear with or without representation.

4.These orders, and the reasons for them, will be published by the Court to the Public Advocate.

5.If the Medico-Legal Officer, or other responsible officer of the [Mental Health Service] objects to either inspection by the Public Advocate of documents produced by them to the Court under subpoena, or to the provision of copies of the said documents to the Public Advocate, they must inform the Court of that objection in writing by no later than [redacted].

6.If the Medico-Legal Officer, or other responsible officer of the [Mental Health Service] objects to the submission into evidence of the said documents in any application by the Public Advocate to the State Administrative Tribunal for guardianship or administration orders in relation to the Applicant Father, [Mr Prescott], they must inform the Court of that objection in writing by no later than [redacted].

7.These orders, and the reasons for them, will be published by the Court to the Medico-Legal Officer of the [Mental Health Service].

8.Costs reserved.

These reasons are the reasons for decision delivered on [Redacted], edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

RM

Associate

[REDACTED]