JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: STANHOPE and STANHOPE [2025] FCWA 157
CORAM: O'BRIEN J
HEARD: [REDACTED]
DELIVERED : 10 JULY 2025
FILE NO/S: 6561 of 2018
BETWEEN: MS STANHOPE
Applicant
AND
MR STANHOPE
Respondent
Catchwords:
PARENTING – Approach to child related proceedings – Where the parties initially estimated that three days would be required for trial – Where that estimate increased first to five days, then to 10 days, then further – Consideration of the principles set out in s 102NE of the Family Law Act 1975 (Cth) and the mandatory requirements of s 102NH - Consideration of the powers granted by s 102NN to define matters in relation to which evidence may be given, by whom evidence may be given, whether and if so how cross-examination is to be permitted and the imposition of time limits for evidence and submissions – Consideration of broader case management principles including the obligation of the Court to ensure that its limited resources are used efficiently – Where permission to rely on various affidavits already sworn is refused – Where various proposed witnesses are not permitted to give evidence at trial – Where leave to subpoena various other witnesses is declined – Where a trial plan is imposed – Turns on its own facts
Legislation:
Family Law Act 1975 (Cth)
Category: Reportable
Representation:
Counsel:
| Applicant | : | Mr K |
| Respondent | : | Self-Represented Litigant |
| Independent Children's Lawyer | : | Ms Q |
Solicitors:
| Applicant | : | Law Firm C |
| Respondent | : | Self-Represented Litigant |
| Independent Children's Lawyer | : | Law Firm G |
Case(s) referred to in decision(s):
[2024] FCWA 183
[2025] FCWA 141
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Browne v Dunn (1893) 6 R 67 (HL)
P v Q (No 2) (2023) 67 Fam LR 399
Pickford & Pickford [2024] FedCFamC1A 249
Re F Litigants in Person Guidelines (2001) FLC 93-072
Rogers v The Queen (1994) 181 CLR 251
Stanhope and Stanhope [2023] FCWA 204
Stanhope and Stanhope [2025] FCWA 88
Taylor v Taylor (1979) FLC 90-674
Teo & Guan (2015) FLC 93-653
The State of Queensland and Anor v J L Holdings Pty Ltd (1997) 189 CLR 146
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 Stanhope and Stanhope has been approved by the Family Court of Western Australia pursuant to s 114Q(2) of the Family Law Act 1975 (Cth).
This copy of the Court's Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) of the Family Court Rules 2021 (WA)) or to record a variation of the orders pursuant to r 311 of the Family Court Rules 2021 (WA).
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.
1[Mr Stanhope] ("the husband") and [Ms Stanhope] ("the wife") are the parents of one child, [Child J] born [in] 2016. An earlier tranche of parenting proceedings concluded with the making of final orders [in early] 2020. Those orders provided for the parties to have equal shared parental responsibility, for Child J to live with the wife, and for him to spend time with the husband for five nights per fortnight. Other orders were made for special occasions and in relation to specific issues.
2Both parties propose that the existing orders should be varied. Efforts have been made to progress the current proceedings towards trial, but difficulties have been encountered as summarised in earlier judgments, which I incorporate in these reasons.[1]
[1] [2024] FCWA 183, Stanhope and Stanhope [2025] FCWA 88, [2025] FCWA 141.
3When the matter was first listed to a trial to commence in April 2024, it was listed for three days. When that trial did not proceed, it was subsequently listed with an estimated hearing time of five days. Later, the wife estimated the likely hearing time at 10 days. In response, the husband expressed the view that still longer might be required.
4For reasons delivered [in] April 2025,[2] I made orders requiring the parties to clearly articulate the final orders that they sought, identify the matters they would regard as being in issue in the proceedings, and identify the witnesses they would propose to call at trial, and the factual issue or issues to which the evidence of each witness would be directed. I made it clear that the purpose of that approach was to enable an informed consideration of the exercise of the Court's power to limit the matters in respect of which evidence can be given, make orders as to by whom evidence may be given, limit the number of witnesses, and limit cross-examination.
[2] Stanhope and Stanhope [2025] FCWA 88.
5The parties and the Independent Children's Lawyer ("ICL") have filed documents as ordered and made their submissions. After hearing further oral submissions [in mid] 2025, I reserved my decision.
The relevant principles
6I turn now to consider the manner in which the trial should be conducted, the evidence that should be permitted, and the cross‑examination that should be permitted. I do so by reference to the legislated principles for the conduct of child related proceedings,[3] the requirements of s 102NH of the Family Law Act 1975 (Cth) ("the Act"), and the powers contained in s 102NN designed to assist the Court in giving effect to those principles and requirements.
[3] Since the amendments to the Family Law Act 1975 (Cth) commenced on 10 June 2025, now found at s 102NE.
7Section 102NE sets out principles for the conduct of child related proceedings. Relevantly, it provides that the Court must (not may) give effect to those principles in performing duties and exercising powers in relation to child related proceedings, and in making other decisions about the conduct of those proceedings.
8The first principle is that the Court is to consider the needs of the relevant child and the impact that the conduct of the proceedings may have on the child, in determining the conduct of the proceedings.
9The second principle is that the Court is to actively direct, control and manage the conduct of the proceedings.
10The third principle is that the proceedings are to be conducted in a way that will safeguard the parties against family violence and safeguard the child from being subjected to or exposed to family violence, abuse or neglect.
11The fourth principle is that, as far as possible, the proceedings are to be conducted in a way that will promote cooperative and child focused parenting by the parties.
12The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
13Section 102NH provides that in giving effect to those principles the Court must (not may), among other things:
1.decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily;
2.in deciding whether a particular step is to be taken – consider whether the likely benefits of the taking the step justify the costs of taking it; and
3.deal with as many aspects of the matter is it can on a single occasion.
14In giving effect to the principles, the Court is empowered by s 102NN to, among other things:
1.give directions or make orders about the matters in relation to which the parties are to present evidence;
2.give directions or make orders about who is to give evidence in relation to each remaining issue, and about how particular evidence is to be given;
3.give directions or make orders as to the matters in relation to which expert evidence is to be given, the number of experts who may provide evidence, and how that evidence is to be provided;
4.limit the time for oral argument and for the giving of evidence;
5.direct or order that evidence in relation to a particular matter, or evidence of a particular kind, not be presented by a party;
6.limit, or decline to allow, cross-examination of a particular witness; and
7.limit the number of witnesses who are to give evidence in the proceedings.
15Those powers are self-evidently directed not only to the principle requiring the Court to actively direct, control and manage the conduct of the proceedings, but also to the required consideration of the needs of the child and the impact that the conduct of the proceedings may have. They are also directed to the principles requiring matters to be determined without undue delay, to promote cooperative parenting to the extent possible, and to safeguard the parties against family violence, the broad definition of which can include coercive or controlling behaviour in the conduct of litigation.[4]
[4] See Pickford & Pickford [2024] FedCFamC1A 249.
16I also have regard to the following broader principles, which while set out in an earlier judgment, bear repeating.
17The Court has inherent power to stay or dismiss proceedings or parts of proceedings which are frivolous, vexatious or an abuse of process.[5] That is so even if it is not demonstrated that proceedings are brought for an ulterior motive or an illegitimate purpose – the concept extends "to the use of [Court] processes so as to cause vexation or oppression".[6]
[5] Taylor v Taylor (1979) FLC 90-674 and the authorities there cited.
18The Court has an implied power more generally to ensure the effective exercise of its jurisdiction, subject to the requirements of procedural fairness.[7]
[7] Teo & Guan (2015) FLC 93-653.
19That power includes the taking of appropriate steps to limit evidence to that which is relevant to the determination of matters in issue, and of probative value, even before any consideration of the limitations of that nature encompassed by the rules of evidence.
20The proper scope and purpose of cross-examination of witnesses, particularly non-expert witnesses, is well-established. As has been observed,[8] "the aim of cross-examination of a non-expert witness will usually be to attempt to impugn the credibility of the witness's evidence, obtain admissions or concessions as to matters of primary fact within the witness's personal knowledge, and to comply with the rule in Browne v Dunn".[9] Cross-examination need not necessarily be lengthy to achieve that aim. The credibility of witnesses whose evidence, even if taken at its highest, is of limited or no probative value, need not be impugned. Those witnesses need only be cross‑examined where necessary to comply with the rule in Browne v Dunn, or where it is sought to obtain relevant admissions or concessions as to facts within their knowledge.
[8] P v Q (No 2) (2023) 67 Fam LR 399, [51].
[9] Browne v Dunn (1893) 6 R 67 (HL).
21Case management principles are not an end of themselves. The primary consideration in the conduct of any proceedings is to do justice between the parties, and in child related proceedings to ensure that properly informed decisions are made in the best interests of the child. Nevertheless, the Court has an obligation to litigants more generally to ensure that its limited resources are used efficiently.[10]
The starting point – the final relief sought by the parties
[10] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; The State of Queensland and Anor v J L Holdings Pty Ltd (1997) 189 CLR 146.
22Any analysis of the steps required to ensure that the trial is conducted in accordance with the relevant principles must start with an examination of the final relief sought by each party. That is so, as the definition of the issues to be determined is informed by the relief sought.
Parental responsibility and decision-making
23The wife seeks sole decision-making responsibility in relation to all major long-term issues concerning Child J.
24She seeks a number of related orders. They include an order requiring each party to keep the other informed of any significant developmental or health concerns Child J may have. She proposes that each party should have authority to obtain information about Child J from educational institutions, medical health professionals, and extracurricular activity providers.
25The wife also proposes an order requiring both parties to "follow all advice and recommendations from [Child J’s] treating medical practitioners, including all medical and pharmaceutical, and allied health professional, treatment recommendations." She seeks an order in more specific terms compelling the husband to act in that manner, and injunctions restraining him from taking Child J to health professionals without her consent other than in an emergency. She proposes an order giving her liberty to change Child J’s school enrolment from [School O] in [Suburb A] to [School S] and that once Child J reaches high school age, she be at liberty to enrol him in the high school of her choice, upon giving proper consideration to the husband's views.
26The husband seeks sole decision-making responsibility in relation to three identified major long-term issues – (1) education, (2) health and medical care, and (3) religious and cultural upbringing. He proposes orders which would require him to consult with the wife before making those decisions, and to notify her once they were made. He seeks an order requiring both parties to "acknowledge and support [Child J’s] upbringing within the Catholic faith" and specific orders supportive of that. He seeks a range of specific orders in relation to medical and allied health care generally, including orders requiring the parties to follow all reasonable advice and recommendations of treating medical practitioners. Those include orders for Child J to continue to engage with his current speech therapist and occupational therapist "unless otherwise agreed in writing or on medical advice".
27He proposes that Child J remain enrolled at School O for the duration of his primary and secondary education unless otherwise agreed, and that he be responsible for the associated costs unless he "becomes incapacitated or otherwise unable, due to illness, injury, or significant financial hardship" to meet those costs, in which case the wife would be obliged to meet them "in full or in proportion to her financial capacity". He proposes similar orders in relation to Child J’s medical costs. He does not address how either proposal would intersect with any assessment of child support.
Living arrangements for Child J
28The wife seeks orders for Child J to live with her, and to spend time with the husband during school term each alternate weekend from Friday afternoon until 6.00 pm on Sunday. She proposes those times be extended during school holidays, such that during the short school holidays Child J would spend roughly equal time with each parent, and three separate one-week periods with the husband during the summer school holidays.
29The husband seeks orders for Child J to live equally with both parents, on a week about basis. He proposes that if either is unable to personally care for Child J for a period of four hours or longer, or is unable to deliver or collect him from school, the other party should be notified and given "first right of refusal". He seeks an order in more specific terms requiring that the wife must offer him the opportunity to care for Child J during any period "during her scheduled parenting time", including before and after school, in which she is unable to personally care for him, and only make alternative arrangements if (other than in the case of emergency) she has given him at least 24 hours' notice of that unavailability and he has declined to take up the opportunity to care for Child J. He seeks similar orders in relation to Child J's extra-curricular activities.
30Both parties seek prescriptive orders in relation to arrangements for special occasions and significant days.
Communication
31The wife seeks an order for Child J to communicate electronically with the husband each Friday on certain conditions and with her on Mondays. The husband proposes that Child J should communicate by video with the parent with whom he is not staying each Wednesday and Saturday, also on certain conditions. He also proposes that once Child J commences secondary school, he will provide him with a mobile telephone, and that both parties must always facilitate his communication with each parent. The wife does not propose a specific point at which Child J should be provided with a mobile telephone but seeks similar orders as to Child J's communication with the parties by that means once that occurs.
32Both parties propose specific orders as to how they should communicate with each other.
Handover
33The wife proposes that where handovers do not take place at school, they occur at [a shopping centre in Suburb C] or such other location as the parties may agree in writing. The husband proposes the same, while specifying that handovers on school days should take place at school.
Extracurricular activities
34The wife does not seek any specific orders in relation to Child J’s extracurricular activities. The husband seeks orders, subject to wishes expressed by Child J, requiring both parties to ensure that he attends any extracurricular activities in which he is currently involved, and any mutually agreed future extracurricular activities.
Travel
35The wife proposes that both parties should be at liberty to travel with Child J during "their" time with him,[11] including interstate and overseas, on specific conditions as to notice, information to be provided, and avoidance of travel to destinations subject to particular government warnings. She proposes that she be able to apply for an Australian passport for Child J without the husband's consent, that she retain the passport, and that she provide it to the husband for any agreed international travel.
[11] And at other times if agreed.
36The husband proposes that Child J not be permitted to travel internationally without the written consent of both parties, and that he not travel in any event to a country which is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. He otherwise proposes that both parties be able to travel within Australia during "their" time with Child J on specific conditions as to notice and the information to be provided. He proposes that he be able to apply for an Australian passport for Child J without the wife's consent, that he retain the passport, and that he provide it to the wife for any agreed international travel. He proposes that Child J be included on the Family Law Watchlist until he reaches the age of 18.
Other matters
37The husband seeks injunctions restraining the wife from using any form of physical discipline towards Child J, and from calling him derogatory or demeaning names, yelling, screaming, using aggressive tones, or displaying uncontrolled anger towards him, and mandating that she communicate with him in a "calm, respectful and age‑appropriate manner at all times." He proposes an order which would purport to provide that any breach of that injunction could be "relied upon in future proceedings to vary the parenting arrangements." He seeks an injunction restraining the wife from denigrating him to Child J.
38The wife seeks non-denigration injunctions, and that both parties be restrained from physically disciplining Child J, from discussing the proceedings with him or permitting him to see court‑related documents, and from using him as a "conduit for passing messages or information to the other concerning any parenting, financial, or child support matters." She seeks a specific injunction restraining both parties from placing footage, text messages or documents about the other party, or these proceedings, on any form of social media.
39The husband seeks an order for "judicial referral" of the wife for investigation into whether her conduct in the proceedings constitutes perjury, attempting to pervert the course of justice, conspiring to do so, or other offences. He seeks other interlocutory orders of a procedural nature, including orders purporting to pre-emptively characterise particular actions as serious contraventions of orders for the purpose of imposing penalties. Those proposals need not be discussed further for present purposes.
40Both parties seek costs.
The issues as otherwise identified by the parties
Arrangements which promote safety
41Both parties and the ICL raise issues regarding family violence. The wife alleges violence on the part of the husband, including towards Child J, and coercive and controlling behaviour. On her case, the behaviours she alleges were also exhibited by the husband in previous relationships to the extent that the relevant attitudes and behaviours may be found to be entrenched.
42The husband denies those allegations and suggests the wife has engaged in "collusion with third parties (including [his] ex-partners)" in making false allegations. The husband alleges that Child J has been "subjected to emotionally harmful behaviour" in the wife's care, by exposure to "persistent verbal abuse", "uncontrolled anger and yelling", and the use of physical discipline or threats. He alleges further that Child J has been exposed to an incident of family violence between the wife and her then partner.
43While neither party proposes any form of supervision of Child J's time with the other, the wife contends that the matters she raises strongly support a reduction in the amount of time Child J spends with the husband. The husband's allegations, similarly, are appropriately considered by reference to the relief which he seeks – he proposes an equal time arrangement, albeit with injunctions restraining the wife from physically disciplining Child J.
Decision-making and the relationship between the parties
44In short, neither party trusts the other. That much is common ground. They have strongly differing views as to the approach to be taken in the management of Child J's health needs. While each would blame the other and profess to be willing to have a cooperative parenting relationship, in a practical sense nothing turns on any apportionment of blame.
45To the extent, therefore, that the nature of the relationship between the parties and the reasons for that require exploration at trial, that exploration might inform the required consideration of the benefit to Child J of his relationships with each parent, and their capacity to provide for his developmental, psychological, emotional and cultural needs, as appropriately noted by the ICL.
46The exploration of the parental relationship would also inform a consideration of the impact of that relationship on Child J and what might flow from that in terms of determining the appropriate parenting orders.
47It would not inform the easily reached conclusion that these parties cannot share parental decision-making in any meaningful way.
Child J's views
48The husband contends that Child J has expressed negative views about his time with the wife and a desire to spend more time with him. He says that Child J has also expressed strongly his desire to stay at School O and to avoid before and after school care. The husband says that notwithstanding Child J's age his views should be afforded considerable weight.
49The wife says that while Child J loves both parents, his age, maturity and development are such that any expressed views ought to be given minimal weight. The ICL agrees.
Child J's developmental, psychological, emotional and cultural needs
50Child J has been diagnosed with ADHD, Global Developmental Delay, Autism Spectrum Disorder, Hyperactivity, and Expressive and Receptive Language Delay. Each party would contend that they are best placed to manage those issues.
51Evidence from treating practitioners, including as to their observations (if any) as to the respective capacities of the parties to provide for Child J's relevant needs, will likely inform the required determinations not only as to decision-making responsibility, but as to Child J's living arrangements.
52Both parties raise issues as to Child J's cultural needs. The wife emphasises a need for connection with his [Country B] culture, while the husband emphasises a need for him to be raised Catholic.
The benefit to Child J of being able to have a relationship with both parents, and other significant persons
53Both parties acknowledge that Child J should have an ongoing relationship with the other. Each would raise questions as to the depth of the benefit to Child J of those relationships, given their personal criticisms of each other's character, behaviour and parenting capacity. Issues raised by each as to the relationships of Child J with other family members are not such as to be determinative of the decisions required.
The evidence proposed to be adduced
54Against that background, I turn to consider the evidence proposed to be adduced by each party and the ICL, and the proposed extent of cross‑examination.
The evidence of the parties
55The husband has indicated in his Papers for the Judge that he would propose to rely on "all affidavits previously filed in support of [his] case." In circumstances where the husband has sworn over 20 affidavits over the course of the proceedings, that is unacceptable for obvious reasons. I note further that in the same Papers he proposes to rely on his "Trial Affidavit (to be filed upon completion)."
56The parties have previously been ordered to file for the purposes of trial a single stand-alone affidavit with no more than 15 annexures setting out the whole of their evidence in chief. The husband has not yet complied with that order. The wife filed a Trial Affidavit [in] August 2024, with an accompanying Form 13 Financial Statement.
57I propose to order the husband to file a single stand-alone affidavit to comprise his evidence in chief for the purposes of trial and a Form 13 Financial Statement and to update that evidence as required prior to trial. The Form 13 Financial Statement is required given the husband's proposals as to Child J's continued education at a private school, and as to how his school fees and medical treatment expenses should be paid.
58I propose to order the wife to file an affidavit of evidence in chief limited to events which have occurred since she filed her Trial Affidavit [in] August 2024, and an up-to-date Form 13 Financial Statement.
59I do not propose to permit either party to rely at trial on the multiple affidavits they have filed in interim and interlocutory disputes.
The evidence of the present partners of the parties
60The wife proposes to live in Suburb T with her partner [Mr Martin]. She proposes to file a witness affidavit to be sworn by him, which is clearly appropriate.
61In his Papers for the Judge, the husband asserts that Child J "shares a warm and consistent relationship with [his] partner" who is not listed as a proposed witness.
The husband's former partners and his children
62The husband has children by different partners. To give context to what follows, the various relationships are briefly summarised below.[12]
[12] To avoid confusion, I refer to various persons with a common surname by their given names and mean no offence in doing so.
63[Elsie Stanhope] is the husband's oldest child. Her mother is [Ms Hughes], from whom the husband separated when Elsie was an infant. On Elsie's evidence, her childhood in the care of her mother was traumatic, in circumstances where her mother had mental health and drug addiction issues. In her witness affidavit filed by the husband she says that various traumatic events recounted "transpired because of the Family Court judge's ruling 27 years ago."
64The husband's first wife is [Ms Bauer]. They had three children together, [Connor Stanhope], [Avery Stanhope] and [Edward Stanhope]. Ms Bauer, Avery and Edward live in [State D]. The husband proposes that affidavits sworn by Connor and Edward should be received in evidence for the purposes of trial. He contends that their evidence is pertinent primarily as to his relationship with [Ava Stanhope].
65Ava Stanhope lived with the husband from approximately 2006 until 2012. They had one child together, [Finn Stanhope], who was born [in] 2008. Ava had two older children from a previous relationship, who lived with her and the husband while they were together. The wife proposes that affidavits sworn by Ava should be received in evidence for the purposes of trial. [Elijah Thomas] is Ava Stanhope's adult son.
66[Vivian Masai] commenced a relationship with the husband in April 2022. In September 2022, she swore an affidavit at the request of the husband for use in these proceedings, in which she described herself as his girlfriend or partner. That affidavit was filed by the husband [in] February 2025. Ms Masai then swore an affidavit [in] March 2025 at the request of the wife, saying that her relationship with the husband ended in January 2023. The wife filed that affidavit [in] April 2025. Ms Masai and the husband do not have children together. Somewhat curiously, both the husband and the wife seek to rely on the affidavits prepared at their request at trial, whereby Ms Masai would be "their" witness.
67I turn now to a consideration of whether evidence should be adduced from the husband's former partners, and from his adult children.
Ava Stanhope
68The affidavit of Ava filed [in] August 2024 contains evidence of physical and verbal violence by the husband towards her, and towards children in their care. It also contains evidence as to the current arrangements for the care of Finn and his time with the husband.
69Those matters potentially inform the decisions to be made in the present proceedings.
70The husband submits that the evidence of Ava is "highly prejudicial, improperly motivated, and should be ruled inadmissible under both the rules of evidence and the overriding obligation of fairness in family law proceedings".[13] He says further that the conduct alleged by her is "historical and lacks probative value"[14] and would serve only to "distract from the current issues." He objects to Ava being "permitted to testify on the grounds that her involvement is not genuine or spontaneous, but rather the result of deliberate solicitation by [the wife]".[15] He goes so far as to say that the allegations made by Ava, which are consistent with those made by the wife, formed part of "a coordinated and deliberate conspiracy between these two individuals, aimed at discrediting [him] and undermining his credibility as a parent".[16] He otherwise raises criticisms of the ICL which are irrelevant to the determination presently required.
[13] Emphasis as appears in the original.
[14] Emphasis as appears in the original.
[15] Emphasis as appears in the original.
[16] Emphasis as appears in the original.
71I do not accept the submissions of the husband. A history of family violence in previous relationships, if proven, can inform a consideration of both allegations of that nature in a more recent relationship and the extent to which the alleged perpetrator can appropriately provide for the developmental, psychological and emotional needs of a child. The proposed evidence does not "distract from the current issues"; to the contrary, it potentially informs their determination. Witnesses rarely if ever become involved in litigation "spontaneously" - they are inevitably sought out by one party or the other. Any proper objection to specific parts of the evidence of Ava can be raised at trial, and any suggestion that her evidence is "improperly motivated" can be explored in cross-examination if the husband considers that appropriate and prudent.
72The wife will be permitted to rely on the affidavit of Ava filed [in] August 2024 and any subsequent affidavit of Ava limited to relevant events which have occurred since that date.
Vivian Masai
73As earlier noted, both parties seek to rely on affidavits sworn by Ms Masai. The husband's pre-emptive application to exclude certain of her evidence given in the affidavit sworn at the request of the wife, and in particular copies of communications from him to Ms Masai, was dismissed [in] June 2025 for reasons given that day.[17]
[17] [2025] FCWA 141, 68-73.
74Ms Masai gives evidence directed to the issue of family violence in the form of coercive and controlling behaviour directed by the husband both to her and to the wife, including but not limited to consciously and strategically "peppering [the wife's] lawyer with emails" to "drain her funds", and evidence of the husband's expression of misogynistic views.
75That evidence potentially informs the decisions to be made in the present proceedings, for the reasons noted in relation to the evidence of Ava Stanhope. Having described Ms Masai in submissions filed only [in] April 2025 as providing "critical first-hand evidence" as an "independent observer" with an "objective perspective", the husband cannot now seek the exclusion of her evidence by assertions to the contrary without that evidence being tested in cross-examination.
76The wife will be permitted to rely on the affidavit of Ms Masai filed [in] April 2025 and Ms Masai may give evidence as part of the wife's case. The husband should not misunderstand that – he will not be inhibited in putting to Ms Masai in cross-examination the affidavit previously sworn by her at his request or tendering that affidavit into evidence through her.
Elsie Stanhope, Connor Stanhope and Edward Stanhope
77Elsie, Connor and Edward Stanhope have each sworn affidavits at the request of the husband. All were filed [in] February 2025.
78To the extent the evidence of Elsie recounts the trauma she suffered while in the care of Ms Hughes, and with no disrespect to her or lack of regard for what she experienced, it does not inform the determinations to be made about Child J.
79Her observation that Ava Stanhope was "very flirtatious" with the husband while Ms Bauer was away interstate, and her opinion that Ava "had no regard for the relationship between a married man and his wife of nine years, a woman that was carrying his third child", while making no observation about the husband commencing a relationship with her, indicates an understandable but unhelpful absence of objectivity.
80The tenor of the evidence is further demonstrated by Elsie's statement that she "feel[s] it is due to [Ava Stanhope's] love for drama, greed, and a wish to hurt my father, that she is now assisting [the wife] in these court proceedings, even after defaming and attacking [the wife] in court during her own case against my father." In contrast, Elsie makes brief but relatively positive observations about the wife; her focus is very much on Ava.
81I note also that Elsie says that due to trauma, she does "not recall many specifics", and expresses her view that "the Family Court and the lawyers in this court case should not have been allowed to retrieve [the file relating to the proceedings between her mother and the husband]", and that the husband did not want her to have to "relive past traumas" or be involved in the current proceedings in any way.
82The husband asserts that Elsie's evidence is pertinent "particularly concerning the nature of [his relationship with Ava Stanhope]".
83I do not propose to permit the husband to rely on Elsie's affidavit, nor otherwise call her as a witness. To the extent she can give evidence of what she saw and heard in the household when the husband lived with Ava Stanhope, that evidence can adequately be given by another witness. Duplication does not make evidence more compelling, nor more relevant. To the extent Elsie expresses unqualified opinions, they are of no probative value.
84Similarly, the husband says that the affidavits of Edward filed [in] February 2025, and [in] March 2025 (only the latter being filed once Edward had turned 18) are intended to provide insight into the dynamics within the household when he lived with Ava Stanhope. He does not suggest that Edward lived with them full-time; he lived with his mother in State D and visited the husband regularly.
85I have read both affidavits. They do not serve the purpose the husband attributes to them. They are of no probative value, and I do not propose to permit the husband to rely on them at trial.
86The husband says that Connor now lives with him. He seeks to rely on an affidavit of Connor filed [in] February 2025 but sworn [in] August 2024 at a time when he was living in State D. Much of that affidavit is directed to criticism of Ava Stanhope and is said by the husband to be "intended to assist the Court in understanding the far‑reaching effect of the toxic environment that was created whenever [Connor] and his siblings came to live with us".[18] Elsewhere, the affidavit goes primarily to Connor's positive opinions as to the husband's qualities[19] and disparaging observations about the wife.
[18] Referring to himself and Ava Stanhope.
[19] Including paragraphs under a heading titled "My Dad, the good Samaritan".
87In common with a number of the proposed affidavits to be relied upon by each party, much of the content of Connor's current affidavit is of little or no probative value. That said, in my view it is appropriate to permit the husband to rely on that affidavit in rebuttal to the evidence of Ava Stanhope and to file a more up-to-date affidavit sworn by Connor as to his current circumstances, his own interaction with Child J, and his observations of Child J and the husband, if in fact they are all now living together.
88I turn now to a consideration of the other witnesses proposed by each party.
Other witnesses proposed by the wife – [Ms Murray] and Elijah Thomas
89Neither of these proposed witnesses of the wife have yet sworn an affidavit.
90Ms Murray is a family violence counsellor who provided assistance to the wife at or about the time of separation. The wife seeks to adduce evidence from her in relation to that issue alone. As the question of whether either party perpetrated family violence on the other is squarely in issue, and the Court is required (pursuant to s 60CC(2A) of the Act) to consider any history of family violence, abuse or neglect involving Child J or a person caring for him, the evidence of Ms Murray potentially has probative value. I propose to permit the wife to rely on an affidavit to be sworn by her.
91Elijah Thomas is the adult son of Ava Stanhope. The wife seeks to adduce evidence from him, directed to the issues of family violence already referred to. In circumstances where I propose to permit the husband to rely on the evidence of one of his adult children as to what he saw and heard in relation to the allegations made by Ava Stanhope, it is appropriate to allow the wife the same opportunity. I make it clear that the evidence of Eljah is to be so limited.
Other witnesses proposed by the husband and who have sworn affidavits – [Mrs Castellanos], [Mr Percy], [Mr Rashid], [Mr Brady], [Mr Dalton] and [Prof Schulz]
92The husband filed an affidavit of Mrs Castellanos [in] June 2023 and had previously indicated his intention to rely on it for the purposes of trial. In her submissions filed [in] May 2025, the ICL indicated that she did not oppose that, but expressed the view that the husband's intention to rely on the affidavit "may be of greater relevance to these proceedings than the probative value of the affidavit itself." In his submissions filed [in] May 2025 the husband then said that Mrs Castellanos is "no longer willing to testify in these proceedings" while purporting still to rely on the affidavit and acknowledging that the evidentiary weight of it may be impacted by that unwillingness.
93I decline to permit the husband to rely on an affidavit for the purposes of trial in circumstances where the witness now refuses to give evidence. No weight could be attributed to the affidavit in those circumstances and its admission into evidence at trial is pointless.
94Mr Percy swore an affidavit [in] August 2024, which was filed by the husband [in] February 2025. The husband asserts that his evidence is of probative value, both because he has been a "direct eyewitness to incidents" and because he will give evidence to contradict matters asserted by [Ms Doyle], to whom further reference is made below.
95Parts of the affidavit of Mr Percy are clearly of limited probative value. That said, he says that he has lived with the husband and his children for extended periods, albeit the dates are not overly clear. He has also been present at handovers, some of which have been contentious.
96I propose to permit the husband to rely on the affidavit of Mr Percy.
97Mr Rashid swore an affidavit [in] October 2024, which was filed by the husband [in] February 2025. The affidavit primarily sets out Mr Rashid’s role in taking the husband to the "girlie bar" in Country B at which he met the wife, negotiating and paying the "bar fine" for her "release" to accompany the husband to his hotel, and advising the husband as to what was, from his experience, the "standard rate" payable for sex. Otherwise, his evidence is largely limited to gratuitous expressions of his personal disdain for the wife and for Ava Stanhope. His affidavit is of no probative value, and I do not propose to permit the husband to rely upon it at trial.
98Mr Brady swore an affidavit [in] August 2024 which was filed by the husband [in] February 2025. Mr Brady describes himself as a lifelong friend of the husband and is Child J's godfather. He makes limited observations about Elsie and about the husband's relationship with Ms Bauer. He makes limited observations about the husband's relationship with Ava Stanhope, based on occasions when he visited them. He otherwise expresses negative opinions about the wife and her family, positive opinions about the way in which the husband treated the wife and her family, and positive opinions as to the husband's relationship with and parenting of Child J.
99The husband's submission that the affidavit of Mr Brady goes "to the heart of key factual issues in the proceedings, including [the husband's] parenting style, the child's disclosures, and the family's functioning – especially during critical periods relevant to the child's welfare" does not accurately reflect the content of the document. There is, for example, no reference in the affidavit to anything properly characterised as a "disclosure" by Child J. With no disrespect to Mr Brady, his affidavit does not add to the information of probative value in determining the issues in the case. I do not propose to permit the husband to rely upon it at trial.
100Mr Dalton swore an affidavit [in] April 2025 which was filed by the husband [in] May 2025 in support of an interim application. He also swore an affidavit [in] March 2025, filed [in] March 2025. The affidavit filed [in] March 2025 is the affidavit upon which the husband appears to seek to rely at trial. It appears that Mr Dalton resides in the [Country E].
101His first affidavit contains observations about the husband's current partner [Jade], and her interactions with Child J. Those observations are of no probative value in circumstances where, for whatever reason, the husband does not propose to call Jade as a witness.
102That affidavit otherwise contains positive observations about the husband, speculation about the motives of the wife, and some limited observations about handovers and the like. In the context of the other evidence available, it is of no probative value.
103To the extent the husband might seek to rely on it, the second affidavit of Mr Dalton refers to what he says he believes was "extreme malicious harassment directed at [the husband] and his girlfriend, from a [Country F] national named [Vivian Masai]" in or about October 2024. He refers to seeing messages from Ms Masai on the husband's phone. That affidavit is of no probative value.
104I do not propose to permit the husband to rely on either affidavit sworn by Mr Dalton at trial.
105Prof Schulz swore an affidavit [in] February 2025 which was filed by the husband [in] March 2025. Prof Schulz describes himself as a "very special friend" of the husband and says that he has observed Child J to be very well‑behaved child, to whom the husband is very attentive. He otherwise expresses his personal admiration for the husband, and his opinion that Child J would "benefit greatly benefit (sic) from spending more time with his loving father" and his further view that he would "benefit enormously" if he went into the husband's "full-time care".
106The observations in admissible form that Prof Schulz makes do not add to the evidence already available from other witnesses being called by the husband. His personal opinions, with no disrespect, are of no probative value. The emphasis placed by the husband on what he describes as Prof Schulz’s "significant professional standing" do not alter that. Prof Schulz is a legal academic, who has previously served as a [senior legal professional]. I do not doubt his professional standing, but it is not in a field which qualifies him to give admissible opinion evidence as to parenting or child development, were it not for the provisions of s 102NL(1)(c). While by virtue of that section unqualified opinion evidence can be admitted, that does not mean it will be afforded weight. I do not propose to permit the husband to rely on his affidavit for the purposes of trial.
Other witness proposed by the husband and who has not yet sworn an affidavit – [Mr Robinson]
107The husband proposes to file an affidavit sworn by Mr Robinson, who he says has known Child J for almost five years and has a close and trusted relationship with him. He says that Mr Robinson was present during a recent problematic video call between Child J and the wife. He says also that Mr Robinson has been present when Child J has disclosed being "physically hit" by the wife.
108That evidence is of potential probative value. If the husband seeks to file an affidavit by Mr Robinson giving evidence as to those matters, he should be permitted to rely on that affidavit for the purposes of trial.
109That statement is equivocal for a reason. In his submissions, the husband says that Mr Robinson has not yet submitted an affidavit as he "may act as [his] McKenzie friend in the event [he remains] unrepresented under the cross-examination scheme," acknowledging that his participation in that role would be subject to the Court's approval.
110I propose to give the husband liberty to file an affidavit by Mr Robinson, and to rely on it at trial, provided it is filed no later than 28 days prior to the commencement of the trial. In that way, the husband will be given every opportunity to ascertain whether he will be represented.
111I propose to limit the matters as to which Mr Robinson may give evidence to those asserted by the husband in his written submissions to be relevant, with one exception. The husband makes the point that Mr Robinson has attended a number of hearings in this matter and has "witnessed the conduct of" the ICL, "expressed concerns regarding her perceived bias and misleading submissions", and believes the ICL's conduct has "influenced the proceedings unfairly." Any observations or opinions of Mr Robinson of that nature are of no potential probative value whatsoever.
Witnesses to whom the husband proposes subpoenas to give evidence should issue – [Ms Torres], [Ms Gallo], [Ms Simon], [Ms Davies], [Ms Bernard], [Ms Chen], [the Single Expert Witness], [the ICL, Ms Q], [Ms Visser], Ms Doyle, [Dr Fadel] and [Mr Andrew Thomas].
112A number of these proposed witnesses may be dealt with briefly.
113There is no need for the husband to issue a subpoena to compel the attendance of the Single Expert Witness at trial; [Mr Newman] is the appointed Single Expert Witness in the case and will be called by the ICL. The husband will have the opportunity to cross-examine him.
114There is no proper basis upon which the husband can contend that a subpoena should be issued directed to the ICL, [Ms Q], to compel her to give evidence as his witness at trial.
115There is no need for the husband to issue a subpoena to compel the attendance of Ms Doyle to give evidence, as I propose to permit the issue of such a subpoena by the ICL. Again, the husband will have the opportunity to cross-examine her.
116Ms Torres is described by the husband as having "served as the Head of Primary" at School O. Elsewhere, she is described as being the "Head of primary 2024 / 2025". In response to the submissions of the ICL, the husband said that Ms Torres "has had no prior interactions with the [husband] or [Child J]" and "instead seeks to call" Ms Gallo, Ms Simon and Ms Davies. I proceed therefore on the basis that the husband no longer seeks the issue of a subpoena directed to Ms Torres.
117Ms Simon was Child J's Education Assistant in years one and two. Ms Gallo was his year two teacher, and Ms Davies is his current teacher. The ICL proposes to subpoena an appropriate person from the school in relation to the husband's communications with it but has not proposed to subpoena an individual teacher.
118In my view, it is appropriate for the ICL to issue a subpoena for Ms Torres to give evidence. Documents have already been produced under subpoena by the school; in her role as Head of Primary, Ms Torres can appropriately give evidence as to the interaction of the school with the parties, the content of the school's records, and the broader issues regarding the school that might be identified by either party.
119It is not necessary for the Court to have evidence from Ms Simon or Ms Gallo against that background. I accept, however, that the evidence of Child J's current teacher Ms Davies may be of current and probative value.
120I propose therefore to permit the husband to issue a subpoena requiring Ms Davies to give evidence and to permit the ICL to issue a subpoena requiring Ms Torres to give evidence. The question of whether an updating subpoena to produce documents should be issued is a matter for the ICL to consider, given that she will have inspected the documents already produced. I express no view in that regard, as I have not reviewed the subpoenaed documents and would not unless and until they are tendered into evidence.
121Ms Bernard is said by the husband to be Child J's current speech therapist. Ms Chen is said by him to be Child J's current occupational therapist. Given the disputes between the parties as to appropriate health interventions for Child J, and the appropriate allocation of decision-making responsibility, I accept that both witnesses may be able to give evidence of probative value. While the husband has not indicated whether he has asked that either proposed witness will provide a report or swear an affidavit, nothing turns on that for present purposes. I propose to give the husband leave to issue subpoenas directed to them. I also propose to order the parties to execute any necessary authorities to enable the ICL to obtain a report from either or both of Ms Bernard and Ms Chen, if she considers that appropriate. I note in that regard the ICL has made submissions that the evidence of Ms Bernard and Ms Chen is unlikely to assist the Court in determining the relevant issues, and I proceed on the basis that she may elect not to seek a report and, in any event, may not seek to cross‑examine them.
122The husband seeks leave to issue a subpoena to compel Ms Visser to give evidence. Ms Visser is a speech therapist at [a paediatric speech pathology service], which no longer provides services to Child J. The only purpose which the husband advances in support of the proposed leave is his perception that the ICL relies on unsworn and unspecified "concerns" expressed by the paediatric speech pathology service as to his conduct, his contention that "hearsay opinions are inadmissible without testing",[20] and his assertion that he must "confront and test every adverse statement" from Ms Doyle and Ms Visser as they relate to what he would regard as untrue statements made to them by the wife.
[20] By reference to the Evidence Act 1995 (Cth), which does not apply in these proceedings. In any event, see s 102NL of the Family Law Act 1975 (Cth) and s 202H of the Family Court Act 1997 (WA).
123As already indicated, I propose to permit the ICL to issue a subpoena requiring Ms Doyle to give evidence. The husband will have the opportunity to cross-examine her. I do not propose to give leave to either the husband or the ICL to issue a subpoena requiring Ms Doyle to give evidence; accordingly, any opinions adverse to the husband previously expressed by Ms Doyle will not be in evidence and need not be "confronted and tested."
124Dr Fadel is the husband's treating psychologist. The husband seeks permission to call him as a witness. While he does so by the mechanism of proposing to issue a subpoena, that would only be necessary if he has requested the provision of a report verified by affidavit, and Dr Fadel declines.
125It is possible that evidence from Dr Fadel will have probative value beyond that available from the evidence of the Single Expert Witness psychologist. I propose therefore to give the husband leave to adduce evidence from him by affidavit. If, having sought to exercise that leave, the husband establishes that Dr Fadel refuses to give evidence voluntarily, he may revisit the question of whether he should be granted leave to issue a subpoena.
126The husband seeks leave to issue a subpoena to require Andrew Thomas to give evidence. Andrew Thomas was married to Ava Stanhope for "approximately 10 years" prior to the husband meeting her. The husband met Ava in around 2005. The husband says that Andrew Thomas can give evidence as to Ava's "behaviour and character" and her "alienation of his children." I am not persuaded that any evidence Andrew Thomas might give would be of any probative value to inform the determinations currently required. I decline to grant the requested leave.
Witnesses proposed by the ICL – [the Single Expert Witness], [Dr Beekhof], [Dr Auffray], Ms Doyle and the Principal of School O
127It is common ground that the Single Expert Witness should give evidence, and that he should be called as a witness by the ICL. I have already indicated that I propose to give the ICL leave to issue subpoenas directed to Ms Doyle and Ms Torres.
128Dr Beekhof is a paediatrician at the [Suburb V Child Development Service]. He has been involved with Child J and with the family. Given the matters in issue in relation to Child J's medical needs, treatment and decision-making, his evidence may well have probative value. The husband does not suggest otherwise, albeit he suggests that his attendance at trial is not necessary. He acknowledges that Dr Beekhof has already provided a "comprehensive report". It is appropriate for the ICL to be permitted to call him, to place that report in evidence and permit the parties to ask any questions they consider relevant. I propose to grant the ICL leave to issue the relevant subpoena.
129Dr Auffray is also a paediatrician at the Suburb V Child Development Service. Dr Auffray has had past involvement with Child J and the family. The ICL submits that Dr Auffray's evidence may have probative value for the same reasons as that of Dr Beekhof. I accept that submission. I note that the husband does not oppose the issue of a subpoena to Dr Auffray, but questions whether her evidence will "provide additional value at this stage" as Dr Auffray is not currently treating Child J. I propose to grant the ICL leave to issue the relevant subpoena.
130I foreshadow that should any independent professional witnesses seek to comply with a subpoena by giving evidence via Microsoft Teams I would (subject to any submissions to the contrary) likely accommodate that. In those circumstances, the parties and the ICL would need to ensure that efficient arrangements are in place if they seek to put any documents to the witness.
The trial plan and limitations on cross-examination
131I turn now to the time that should be allocated for trial, given the number of witnesses and the matters in respect of which they will give evidence. As foreshadowed, I propose to impose time limits on all aspects of the trial to ensure to the extent possible that it is conducted efficiently, while still permitting evidence to be tested and issues explored.
The estimates of the parties and the ICL
132In their respective Callover certificates filed in March 2025, the wife estimated a hearing time of 10 days, and the ICL and the husband each estimated a hearing time of five days.
133Pursuant to directions made [in] March 2025, the wife and the ICL filed a consolidated trial plan [in] April 2025. The husband was not directed to file a trial plan but was at liberty to do so; he declined. The filed trial plan does not, therefore, include any estimates by the husband as to the time he might require to cross-examine. It was reasonable for him to decline to provide such estimates in circumstances where he is not permitted to personally cross-examine the wife in any event and is awaiting the allocation of representation under the relevant scheme.
134That said, in his response to the draft trial plan put to him, the husband expressed the view that the "timelines… proposed are significantly underestimated." He expressed that view in circumstances where the trial plan estimated that seven hearing days would be required to complete examination of witnesses and submissions by counsel for the wife and the ICL only, without any allowance of time for examination of witnesses and submissions by him.
135In broad terms, therefore, the outworking of the estimates of the parties and the ICL would indicate a trial of not less than 10 hearing days, and likely several days longer. While the estimates by the wife and the ICL included reference to witnesses upon whose affidavits I have determined the husband may not rely, by the same token they made no allowance for the witnesses the husband proposed to subpoena.
136As will be seen, in my view the time required for the proper, just and procedurally fair consideration of relevant evidence and submissions required to determine what orders will serve Child J's best interests is significantly less than the parties and the ICL have estimated.
137While the trial plan was formulated on an assumption of 280 minutes per day of available hearing time, I propose to ensure that no less than five hours' hearing time is available to the parties each day.
138I propose to set timeframes for each aspect of the trial. While the parties and the ICL should proceed on the basis that they are required to comply with those timeframes strictly, that does not mean that they cannot be revisited if and as appropriate. The progress of a trial can be fluid and difficult to predict. It will remain open to both parties and to the ICL to seek extensions (or for that matter contractions) of each allocation of time as the trial progresses; any such request will be considered at the time on its merits.
Housekeeping, opening and closing submissions
139It is likely that there will be procedural or housekeeping matters to be attended to at the commencement of the trial. If the husband remains self-represented, additional time will be spent either at the commencement of trial or at an earlier status hearing in explaining various matters to him to ensure procedural fairness.[21] I allow 45 minutes for those matters.
[21] Re F: Litigants in Person Guidelines (2001) FLC 93-072, [252].
140The ICL and counsel for the wife each estimate that they will require 10 minutes for oral opening submissions. Bearing in mind that the parties have filed Papers for the Judge identifying the issues, and their respective contentions as to the legislated considerations, those estimates are sensible. To cover the possibility that the husband will remain self-represented at trial, I propose to allow 15 minutes for his opening submissions.
141The ICL and counsel for the wife each estimate that they will require one hour for oral closing submissions, with 10 minutes for a brief final response by the ICL. I propose to allow 45 minutes for the closing submissions of each party and of the ICL. Again, that time may be revisited at trial if needed.
Evidence in chief of witnesses who have sworn affidavits
142Fundamentally, the oral evidence in chief of witnesses who have sworn affidavits should be limited to the correction of any errors in those affidavits, and otherwise to confirming their content. Otherwise, it should be limited to brief evidence as to any relevant event that has occurred since the affidavit was sworn.
143I propose to make orders whereby the parties will be at liberty to file affidavits updating their own evidence close to trial. Otherwise, I propose to allow five minutes for the oral evidence in chief of each witness who has sworn an affidavit.
Cross-examination of the parties
144The ICL estimates that she will require one hour to cross-examine the wife, and two hours to cross-examine the husband. Counsel for the wife estimates that he will require six hours to cross-examine the husband. The husband has understandably not provided an estimate as to cross-examination of the wife on his behalf.
145Frankly, given the volume of evidence and the scope of the matters actually in issue, suitably focused cross-examination of the husband should not require the allocation of eight hours of court time. Additionally, by ruling on these matters well in advance of trial counsel are afforded ample opportunity to prepare to ensure the required focus.
146I propose to allow four hours for the cross-examination of each party by counsel for the other, and one hour for the ICL's cross‑examination of each.
147Again, I reiterate that it will be open to the parties and the ICL to seek extensions of those time limits during the trial itself, if circumstances (which may include the manner in which the relevant witness responds to questioning) justify that.
Cross-examination of the Single Expert Witness
148The ICL estimates that she will require two hours to examine the SEW. While it may fairly be anticipated that he will be the last witness called, and that she will need to put to him matters that emerge over the course of prior evidence, 90 minutes should be sufficient.
149Counsel for the wife estimates that he will require one hour to cross‑examine the SEW. That estimate is reasonable, and I propose to allow the husband the same time.
Cross-examination of witnesses who have sworn affidavits
150I propose to allow each party and the ICL 15 to 30 minutes in which to cross-examine witnesses called by others who have sworn affidavits, depending on the witness. Where I assess that the particular witness will give evidence in a limited scope, I have allowed for shorter cross-examination. Again, I accept that for some witnesses less time might be required and that where time is saved in that manner, it might appropriately be applied in the cross-examination of other witnesses.
Evidence of witnesses appearing under subpoena
151For obvious reasons, where witnesses have not filed affidavits a sensible amount of time needs to be allowed for them to give evidence in chief.
152In each case, I propose to allow 30 minutes for evidence in chief, and 20 to 30 minutes for cross-examination, depending on the witness, as reflected in the trial plan annexed to these reasons. Again, those times may be revisited if appropriate as the trial progresses. I anticipate, for example, that less time will be required for some witnesses appearing under subpoena, while longer may be required for others.
Re-examination of witnesses
153The proper purpose of re-examination is limited. It is to remove ambiguities and uncertainties and is allowed when an answer given in cross-examination, unless supplemented or explained, may leave the Court with an inaccurate impression of the facts which is potentially unfavourable to the party calling the witness, and which represents a distortion or incomplete account.[22]
[22] J D Heydon, Cross on Evidence (LexisNexis Butterworths, 12th ed, 2024), [17605].
154I propose to allow five minutes for re-examination of each witness, with a slightly longer time allowed for each party given the likely length of their cross-examination.
The trial plan
155For convenience, the trial plan reflecting the determinations in these reasons is attached as an annexure to this judgment. I propose to order that the parties and the ICL comply with it, subject to the right to seek extensions as already noted.
156Self-evidently, the parties must each give evidence before their respective witnesses. Subject to availability, ideally the SEW will be the last witness called. Otherwise, while the trial plan lists witnesses in a proposed sequence, the parties and the ICL should not feel constrained to adhere to that sequence. Subject to any submissions they might make as to any perceived forensic disadvantage, I will be open to the interposition of professional witnesses to minimise inconvenience to them.
157Where necessary, the Court will commence sitting earlier than 10:00 am and sit late as required.
158To cover the possibility that in some instances witnesses will be required for less than the time allocated to them, the parties and the ICL should ensure to the extent possible that on each day a witness who might otherwise be expected to give evidence on the following day is available at short notice.
Progression of the matter to trial
159I propose to include the matter in Callover [in late] 2025 for the allocation of a trial date. That will afford the parties sufficient time to make enquiries as to the availability of counsel and witnesses.
160I acknowledge that the husband has not yet been allocated a lawyer under the Commonwealth Family Violence and Cross‑Examination of Parties Scheme. Legal Aid Western Australia, which administers the scheme, has made it clear to the Court that the identification and allocation of lawyers under the scheme is assisted by matters being listed for trial, rather than that listing being deferred until a lawyer is identified and allocated.
161The husband will need to continue to do all things within his power to access a lawyer under the scheme, to represent him at trial. I acknowledge that if through no fault of his own the husband is not able to be allocated a lawyer, further consideration will need to be given to the question of whether the trial can proceed in a manner which is procedurally fair.
A further matter – the husband's allegations of a "pattern of bias" on the part of the ICL
162Throughout his recent written submissions, the husband asserts that the ICL has demonstrated bias against him, failed to be impartial, and relied on "unsubstantiated allegations from a non-testifying witness", by whom he refers to Ms Doyle. In fact, the ICL proposes to issue a subpoena to Ms Doyle to give evidence.
163To the extent the husband asserts that the positions adopted by the ICL in relation to the probative value of evidence he seeks to call is indicative of bias against him, that assertion is readily dismissed. In making submissions as to the probative value of evidence proposed to be called by each party, the ICL is simply doing her job. To the extent I have accepted her submissions, self-evidently I consider them to be correct. To the extent I have rejected them, that simply reflects the fact that an ICL is not a decision-maker in any case and that their submissions on all matters may be accepted or rejected by the Court.
164The husband's submissions also gloss over the fact that he previously applied for orders discharging the appointment of the ICL, going to the extent of seeking orders that she be "banned" at least temporarily from acting as an ICL in any case before this Court, on grounds including but not limited to the proposition that her involvement as a committee member of the Women Lawyers Association would give rise to a reasonable apprehension of bias against male litigants. That application was dismissed by the Chief Judge for Reasons delivered [in] September 2023.[23]
[23] Stanhope and Stanhope [2023] FCWA 204.
165Notwithstanding the complaints in his submissions, there is no formal application by the husband for the discharge of the ICL. If such an application is brought, it will be heard and determined on its merits.
A further matter
166Finally, I note reference in the husband's submissions to the possibility that he may seek leave to issue further subpoenas to produce documents. He may make any such request in the usual way, by submitting the subpoena he proposes to have issued with a covering letter setting out the basis upon which he would suggest that the documents sought have a legitimate forensic purpose.
Proposed orders
167Subject to any submissions as to form only, I propose to make the following notations and orders.
NOTING THAT:-
A.The Applicant wife, [MS STANHOPE] has filed the following documents and is permitted to rely on them for the purposes of trial:
(a)her Minute of Proposed Final Orders filed [in] April 2025;
(b)the affidavit of her evidence in chief filed [in] August 2024; and
(c)her Form 13 Financial Statement filed [in] August 2024.
B.The Respondent husband, [MR STANHOPE] has filed the following documents and is permitted to rely on them for the purposes of trial:
(a)his Minute of Proposed Final Orders Sought filed [in] May 2025; and
(b)his Form 13 Financial Statement filed [in] August 2024.
IT IS ORDERED THAT:-
Updating evidence for trial – the parties
1.By no later than 4.00 pm on [a date prior to Callover in] 2025 the husband must file and serve:
(a)a single stand-alone affidavit to comprise the whole of his evidence in chief for the purposes of trial, with no more than 15 annexures; and
(b)an up-to-date Form 13 Financial Statement.
2.By no later than a date to be fixed by subsequent order once the trial is listed, being a date approximately 28 days prior to the first listed day of trial the wife must file and serve:
(a)an affidavit of evidence in chief, limited to evidence as to events which have occurred since she filed her substantive trial affidavit [in] August 2024; and
(b)an up-to-date Form 13 Financial Statement.
3.By no later than a date to be fixed by subsequent order once the trial is listed, being a date approximately 28 days prior to the first listed day of trial the husband must file and serve:
(a)an affidavit of evidence in chief, limited to evidence as to events which have occurred since he filed his substantive trial affidavit pursuant to the order contained in paragraph 1 of these orders; and
(b)an up-to-date Form 13 Financial Statement.
Witness affidavits of the Applicant Wife
4.The wife may rely on the affidavit of [Ava Stanhope] filed [in] August 2024 for the purposes of trial.
5.The wife is permitted to file by no later than 28 days prior to the first listed day of trial an updating affidavit of [Ava Stanhope], and to rely on such affidavit for the purposes of trial, subject to that affidavit being limited to events that have occurred since [redacted] August 2024.
6.The wife may rely on the affidavit of [Vivian Masai] filed [in] April 2025 for the purposes of trial.
7.The wife is permitted to file by no later than 4.00 pm [on a date prior to Callover in] 2025 an affidavit of [Mr Martin] and to rely on that affidavit for the purposes of trial.
8.The wife is permitted to file by no later than 4.00 pm [on a date prior to Callover in] 2025 an affidavit of [Ms Murray] and to rely on that affidavit for the purposes of trial subject to the affidavit being limited to evidence as to her professional interactions with the wife in the context of family violence counselling.
9.The wife is permitted to file by no later than 4.00 pm [on a date prior to Callover in] 2025 an affidavit of [Elijah Thomas] and to rely on that affidavit for the purposes of trial subject to the affidavit being limited to evidence as to what he saw and heard in the form of behaviour by the husband and/or [Ava Stanhope] while they lived together and following their separation, to the extent any such behaviour if proven could properly be characterised as family violence.
Witness affidavits of the Respondent Husband
10.The husband may rely on the affidavit of [Connor Stanhope] filed [in] February 2025 for the purposes of trial.
11.The husband is permitted to file by no later than 4:00 pm [on a date prior to Callover in] 2025 an updating affidavit of [Connor Stanhope] and to rely on that affidavit for the purposes of trial subject to that affidavit being limited to evidence as to his current circumstances, his own interaction with [Child J], and his observations of [Child J] and the husband.
12.The husband may rely on the affidavit of [Mr Percy] filed [in] February 2025 for the purposes of trial.
13.The husband is permitted to file by no later than 28 days prior to the first listed day of trial an affidavit of [Mr Robinson], and to rely on such affidavit for the purposes of trial, subject to the conditions in paragraph [14].
14.Any affidavit of [Mr Robinson] to be filed pursuant to the immediately preceding order must be limited to evidence as to:
(a)his direct observations of [Child J] with the husband;
(b)his direct observations of any video communication between [Child J] and the wife;
(c)his direct observations of instances demonstrating [Child J’s] understanding of time and routine; and
(d)any disclosures made by [Child J] in his presence as to being subjected to physical discipline or otherwise struck by the wife.
15.The husband is permitted to file by no later than 4.00 pm [on a date prior to Callover in] 2025 an affidavit of his treating psychologist [Dr Fadel], and to rely on such affidavit for the purposes of trial.
Subpoenas for the purposes of trial
16.The Independent Children's Lawyer is granted leave to issue subpoenas directed to [Ms Torres] of [School O], [Ms Doyle] of [Paediatric Speech Pathology Service], [Dr Beekhof] and [Dr Auffray] to give evidence at trial.
17.The husband is granted leave to issue subpoenas directed to [Ms Davies] of [School O], [Ms Bernard] of [Medical Therapy Provider] and [Ms Chen] of [Medical Therapy Provider] to give evidence at trial.
Authorities and reports from [Ms Bernard] and/or [Ms Chen]
18.Within seven days of being requested by the Independent Children's Lawyer to do so, the husband and wife must each sign any necessary authority to enable the Independent Children's Lawyer to request and obtain written reports from [Ms Bernard] and/or [Ms Chen].
Conduct of the trial
19.The parties and the Independent Children's Lawyer must limit the time taken in their submissions and examination of witnesses in accordance with the trial plan annexed to these orders.
20.Notwithstanding the previous order, at any time during the trial the parties and the Independent Children's Lawyer may make oral application for extension or reduction of the times allocated in the trial plan.
21.No affidavit may be filed by either party or by the Independent Children's Lawyer for the purposes of trial other than as provided in these orders, or by subsequent order.
22.No affidavit previously filed in the proceedings may be relied upon by either party or by the Independent Children's Lawyer for the purposes of trial, other than as expressly permitted in these orders or by subsequent order.
Callover
23.The proceedings are included in the Callover [in late] 2025 for the allocation of a trial date, with an estimated hearing time of seven days, noting that the matter is not suitable for hearing and determination by a magistrate.
24.The parties and the Independent Children's Lawyer must each file and serve a Callover certificate in the usual form by no later than 4.00pm [on a date seven days prior to the Callover]
Costs
25.Costs of both parties and the ICL are reserved.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
Associate
10 JULY 2025
Annexure A
| TRIAL PLAN [Stanhope and Stanhope] – 6561/2018 1 day = estimated at 300 minutes. | |
| Day 1 | |
| Housekeeping and related matters. | 45 minutes. |
| Applicant Wife – Opening submissions. | 10 minutes. |
| Evidence of the Applicant Wife | |
| Evidence in chief. | 10 minutes. |
| Husband – Cross-examination. | 240 minutes. |
| Total: | 305 minutes. |
| Day 2 | |
| ICL – Cross-examination. | 60 minutes. |
| Re-examination. | 10 minutes. |
| Evidence of the Applicant Wife's Witnesses | |
| Mr Martin (if affidavit is filed) | |
| Evidence in chief. | 5 minutes. |
| Husband – Cross-examination. | 30 minutes. |
| ICL – Cross-examination. | 30 minutes. |
| Re-examination. | 5 minutes. |
| Ava Stanhope | |
| Evidence in chief. | 5 minutes. |
| Husband – Cross-examination. | 30 minutes. |
| ICL – Cross-examination. | 30 minutes. |
| Re-examination. | 5 minutes. |
| Elijah Thomas (if affidavit is filed) | |
| Evidence in chief. | 5 minutes. |
| Husband – Cross-examination. | 20 minutes. |
| ICL – Cross-examination. | 20 minutes. |
| Re-examination. | 5 minutes. |
| Ms Murray (if affidavit is filed) | ||||
| Evidence in chief. | 5 minutes. | |||
| Husband – Cross-examination. | 20 minutes. | |||
| ICL – Cross-examination. | 20 minutes. | |||
| Re-examination. | 5 minutes. | |||
| Total: | 310 minutes. | |||
| Day 3 | ||||
| Vivian Masai | ||||
| Evidence in chief. | 5 minutes. | |||
| Husband – Cross-examination. | 30 minutes. | |||
| ICL – Cross-examination. | 30 minutes. | |||
| Re-examination. | 5 minutes. | |||
| Respondent Husband – Opening submissions. | 15 minutes. | |||
| Evidence of the Respondent Husband | ||||
| Evidence in chief. | 10 minutes. | |||
| Wife - Cross-examination. | 200 minutes. | |||
| Total: | 295 minutes. | |||
| Day 4 | ||||
| Evidence of the Respondent Husband (Continued) | ||||
| Wife – Cross-examination (continued). | 40 minutes. | |||
| ICL – Cross-examination. | 60 minutes. | |||
| Re-examination. | 10 minutes. | |||
| Evidence of the Respondent Husband's Witnesses | ||||
| Connor Stanhope | ||||
| Evidence in chief. | 5 minutes. | |||
| Wife – Cross-examination. | 20 minutes. | |||
| ICL – Cross-examination. | 20 minutes. | |||
| Re-examination. | 5 minutes. | |||
| Mr Percy | ||||
| Evidence in chief. | 5 minutes. | |||
| Wife – Cross-examination. | 20 minutes. | |||
| ICL – Cross-examination. | 20 minutes. | |||
| Re-examination. | 5 minutes. | |||
| Mr Robinson (if affidavit is filed) | ||||
| Evidence in chief. | 5 minutes. | |||
| Wife – Cross-examination. | 20 minutes. | |||
| ICL – Cross-examination. | 20 minutes. | |||
| Re-examination. | 5 minutes. | |||
| Ms Bernard (under subpoena) | ||||
| Evidence in chief. | 30 minutes. | |||
| Wife – Cross-examination. | 20 minutes. | |||
| ICL – Cross-examination. | Nil. | |||
| Re-examination. | 5 minutes. | |||
| Total: | 315 minutes. | |||
| Day 5 | ||||
| Ms Chen (under subpoena) | ||||
| Evidence in chief. | 30 minutes. | |||
| Wife – Cross-examination. | 20 minutes. | |||
| ICL – Cross-examination. | Nil. | |||
| Re-examination. | 5 minutes. | |||
| Ms Davies (under subpoena) | ||||
| Evidence in chief. | 30 minutes. | |||
| Wife – Cross-examination. | 20 minutes. | |||
| ICL – Cross-examination. | 20 minutes. | |||
| Re-examination. | 5 minutes. | |||
| Dr Fadel (if affidavit is filed) | ||||
| Evidence in chief. | 5 minutes. | |||
| Wife – Cross-examination. | 30 minutes. | |||
| ICL – Cross-examination. | 30 minutes. | |||
| Re-examination. | 5 minutes. | |||
| ICL – Opening submissions. | 10 minutes. | |||
| Evidence of the ICL's Witnesses | ||||
| Dr Beekhof (under subpoena) | ||||
| Evidence in chief. | 30 minutes. | |||
| Wife – Cross-examination. | 20 minutes. | |||
| Husband – Cross-examination. | 20 minutes. | |||
| Re-examination. | 5 minutes. | |||
| Total: | 285 minutes. | |||
| Day 6 | ||||
| Dr Auffray (under subpoena) | ||||
| Evidence in chief. | 30 minutes. | |||
| Wife – Cross-examination. | 20 minutes. | |||
| Husband – Cross-examination. | 20 minutes. | |||
| Re-examination. | 5 minutes. | |||
| Ms Doyle (under subpoena) | ||||
| Evidence in chief. | 30 minutes. | |||
| Wife – Cross-examination. | 20 minutes. | |||
| Husband – Cross-examination. | 20 minutes. | |||
| Re-examination. | 5 minutes. | |||
| Ms Torres (under subpoena) | ||||
| Evidence in chief. | 30 minutes. | |||
| Wife – Cross-examination. | 20 minutes. | |||
| Husband – Cross-examination. | 20 minutes. | |||
| Re-examination. | 5 minutes. | |||
| Total: | 225 minutes. | |||
| Day 7 | ||||
| The Single Expert Witness (SEW) | ||||
| ICL – Examination. | 90 minutes. | |||
| Wife – Cross-examination. | 60 minutes. | |||
| Husband – Cross-examination. | 60 minutes. | |||
| Closings | ||||
| ICL – Closing submissions. | 45 minutes. | |||
| Husband – Closing submissions. | 45 minutes. | |||
| Wife – Closing submissions. | 45 minutes. | |||
| ICL – Short response. | 10 minutes. | |||
| Total: | 355 minutes | |||
- AGLC
- STANHOPE and STANHOPE [2025] FCWA 157
- Case
- [2025] FCWA 157
- Decision Date
CaseChat Overview and Summary
The court considered the evidence and submissions from both parties, focusing particularly on the principles set out in section 102NE of the Family Law Act 1975. This section emphasises the need to give priority to the best interests of the child, taking into account various factors including the child’s need for a meaningful relationship with both parents and the child’s adjustment capacity. The court also had to balance the competing interests of the parents and the need to provide a stable and supportive environment for the child.
In reaching its decision, the court found that while both parents had presented compelling arguments, the evidence did not support the need for a lengthy trial. The court noted that the initial estimate of a three-day trial had escalated significantly, and it was essential to avoid unnecessary prolongation of proceedings, which could be detrimental to the child. The court ordered a more streamlined approach and directed the parties to attempt to resolve their disputes through mediation and other alternative dispute resolution methods. The final orders reflected the court's commitment to ensuring that the child's best interests were prioritised and that the proceedings were concluded in a timely and efficient manner.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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