STANHOPE and STANHOPE

[2025] FCWA 88

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: STANHOPE and STANHOPE [2025] FCWA 88

CORAM: O'BRIEN J

HEARD: [REDACTED]

DELIVERED : Ex tempore

FILE NO/S: 6561 of 2018

BETWEEN: MS STANHOPE

Applicant

AND

MR STANHOPE

Respondent

Catchwords:

Parenting proceedings – Where the proposed length of trial estimated by the parties has increased significantly and the husband indicates his intention to call numerous additional witnesses – Consideration of the provisions of Division 12A of Part VII of the Family Law Act 1975 (Cth) - Consideration of the principles for the conduct of child related proceedings and the duties and powers of the court in those proceedings – Consideration of the duties and powers of the Court in relation to evidence – Orders made requiring the parties to clearly identify the final relief sought and what they would assert to be the relevant issues for determination – Further orders made requiring the parties to clearly identify what they would say is the probative value of evidence intended to be adduced from various witnesses in the determination of those identified issues – Where the Court foreshadows exercising power to limit the number of witnesses, the matters upon which they may give evidence, the extent of cross‑examination, and the length of the trial – 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):

[2023] FCWA 174
[2024] FCWA 183
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Browne v Dunn (1893) 6 R 67
P v Q (No 2) (2023) 67 Fam LR 399
Pickford & Pickford [2024] FedCFamC1A 249
Rogers v The Queen (1994) 181 CLR 251
Stanhope and Stanhope [2023] FCWA 204
Taylor v Taylor (1979) FLC 90-674
Teo & Guan [2015] FamCAFC 94
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 on [in] 2016. Earlier parenting proceedings concluded with the making of final orders [in] January 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.

2The present proceedings were commenced by the wife [in] October 2022. The husband responded, and both parties seek the discharge of the orders made [in] January 2020. While the positions of the parties have fluctuated, they are presently articulated as set out below.

The husband's position

3In a Minute of Proposed Final Orders filed [in] August 2024, the husband proposes that he have sole parental responsibility in relation to Child J's education, health and religious upbringing, subject to a requirement to consult with the wife and various specific orders regarding religious observations. He proposes that Child J should live with the parties on a week about basis, and otherwise proposes various specific issues orders, including as to handover, exchanges of information, medical treatment and travel. While he proposes an order in generic terms requiring both parties to follow all advice and recommendations from Child J's medical practitioners, he separately proposes an injunction restraining the wife from taking Child J to any medical or allied health professional without his consent other than in an emergency and restraining her upon provision of that consent from taking Child J to anyone other than his "usual treating" professionals, as advised by him.

4He proposes that Child J remain enrolled at [School O] for the duration of his primary and secondary education.

5The husband otherwise seeks an order for "judicial referral", by which he seeks that the Court refer the wife to the "Attorney General's office and the WA Police for investigation as to whether she has committed" perjury, perversion of the course of justice or conspiracy to do so, or otherwise given a false statement.

6The husband has previously made application for the recusal of the Chief Judge, and the discharge of the Independent Children's Lawyer ("ICL") grounded in what he contended to be a reasonable apprehension of bias on the part of each by virtue of involvement in a legal professional association, being the Women Lawyers of Western Australia. His contention was that a reasonable apprehension of bias against men arose from that involvement. Both applications were dismissed.[1]

The wife's position

[1] [2023] FCWA 174; Stanhope and Stanhope [2023] FCWA 204.

7In a Minute of Proposed Final Orders filed [in] January 2025, the wife proposes that she have "sole decision-making in relation to all major long-term issues" concerning Child J, and various associated orders requiring the parties to keep each other informed of all relevant information. She proposes that Child J live with her and spend time during school term with the husband each alternate weekend from Friday afternoon until 6.00 pm Sunday, with extended periods during school holidays, which in effect amount to equal time or something approximating that. She proposes specific orders for special occasions, handover and other specific issues.

8The wife proposes an order requiring the husband to comply with the treatment recommendations of Child J's treating medical and allied health practitioners at all times, including as to medications.

9She proposes that she be at liberty to change Child J's school enrolment from the School O to [School S].

Issues

10As can be seen from the orders sought by the parties, there are issues between them in relation to Child J's health, and his education.

11Child J has been diagnosed with [various Disorders]. He has support from the National Disability Insurance Scheme. There are disputes between the parties as to his appropriate treatment, and the use of medication in particular.

12Child J has attended School O since 2021. Both parties presently live close to the school, but for some time the wife has sought to move to [Suburb T] to live with her partner in the property owned by him.

13There are also issues between the parties in relation to questions of travel. The wife seeks the ability to travel internationally with Child J; the husband seeks to place restrictions on that.

14Self-evidently, there are issues between the parties as to parental responsibility more broadly and as to the living arrangements for Child J. There are also issues in relation to communication between the parties.

15As previously noted in interlocutory judgments, contested allegations of family violence loom large in the proceedings.

Status of the proceedings

16The proceedings were listed to a trial to commence [in] September 2024. That trial had to be vacated in circumstances described in a judgment published [in] September 2024,[2] which I incorporate into these Reasons. Relevantly for present purposes, that trial was listed for five days. The trial had previously been listed to commence [in] April 2024; at that stage, it was listed for three days.

[2] [2024] FCWA 183.

17Subsequent efforts to progress the matter towards trial have been delayed by the inability of the husband to source legal representation under the relevant scheme, in circumstances where a ban on personal cross-examination is in place. The husband has taken appropriate steps to try and secure representation, and his inability to do so reflects difficulties with the scheme more broadly rather than any fault on his part.

18The proceedings were included in a Callover [in] March 2025 by orders made [in] January 2025. Those orders anticipated a requirement for five days to be allocated for trial. Callover certificates filed by both parties and by the ICL were initially consistent with that estimate.

19The day after filing a Callover certificate indicating an estimated hearing time of five days, the solicitors for the wife filed an amended certificate estimating the hearing time at 10 days. No explanation for that change was proffered. The matter was therefore removed from the Callover [in] March 2025 and listed to today's hearing for directions only.

20The ICL and the solicitors for the wife were ordered to file a trial plan by 4 April 2025 and the husband was given liberty to do so. The trial plan filed by the wife's lawyers confirmed the estimated hearing time at 10 days and was subsequently confirmed to be agreed by the ICL. On 7 April 2025, the husband wrote to the wife's lawyer and to the ICL, copying his correspondence to the Court, saying that he was unable to agree to any proposed trial plan until he is "properly represented", but nevertheless expressing his view that the timing proposed was "significantly underestimated". He indicated that he anticipates "needing to call an additional 9 – 12 witnesses and also to file numerous subpoenas, again, dependent on the advice of [his] legal representative."

21The husband's letter consistently expressed his view that he could not properly address the matters raised without the benefit of having been assigned a lawyer under the relevant scheme. That is problematic for reasons outlined later in this judgment.

22In addition to the matters just outlined, certain interlocutory matters remain outstanding.

23[In] October 2024, the husband filed a Form 2 Application. Many of the matters raised in that application were resolved by the subsequent making of consent orders. The balance of the application was dismissed [in] January 2025.

24[In] February 2025, the husband filed a further Form 2 Application. He sought what he described as "immediate" orders for sole parental responsibility and for Child J to live with him until such time as the wife "undergoes a psychiatric assessment by an approved psychiatrist, trained and qualified in the diagnosis of Antisocial Personality Disorder (ASPD) and Pseudologia Fantastica (PF)." He proposed that the psychiatrist conducting the assessment be "appointed as an expert witness to the case" and give evidence including "recommendations pertaining to the care and welfare" of Child J.

25He proposed that the psychiatrist should be provided with comprehensive background information regarding the wife's life, including details of known significant traumatic events [redacted], and "the effects of working as a [redacted] from such a young age". He sought further orders requiring the wife to undertake six separate parenting programs. He sought a raft of other orders in the alternative, and an order that the wife pay his costs incurred "in relation to [her] refusal to comply with orders and co-parent in this matter." He did so in circumstances where he is presently self-represented.

26That application is listed for hearing [in] May 2025. The wife is required to file a response to it by 24 April 2025. The husband has not, at this point, sought to amend the final orders he seeks.

27Since filing that application, the husband has filed two further affidavits sworn by him in support of it. The first was filed the day after the application was filed with an accompanying affidavit, and the second was filed [in] March 2025. The husband has also filed affidavits by 10 witnesses. For present purposes, I assume that he would intend to rely on each of those affidavits for the purposes of trial.

28The trial plan prepared by the wife's lawyers anticipates that the husband would seek to cross-examine the wife for nearly two days, but that the ICL would seek to cross-examine her for only an hour. The plan also indicates the intention of counsel for the wife to cross‑examine the husband for two full days, and the intention of the ICL to cross-examine him for two hours.

29The trial plan refers also to a number of witnesses proposed to be called on behalf of the wife who have not yet filed affidavits.

30It also indicates the intention of the wife to call as her witness [Ms U], who in an affidavit filed on behalf of the husband [in] February 2025, described herself as being in a "romantic/intimate" relationship with him. That affidavit is noted as having been sworn [in] September 2022.

31The husband has confirmed today that he is no longer in a relationship with Ms U. The wife's counsel indicated that Ms U has now said she is willing to give evidence on behalf of the wife. There is no present indication as to why the affidavit already sworn has been filed by the husband at this time.

32The trial plan also indicates the intention of the wife's counsel and the ICL to cross-examine eight witnesses who had by that point sworn affidavits filed by the husband.

33The trial plan also refers to evidence to be given by [Dr F], [Dr X], [Ms Y] and an unnamed school principal as witnesses to be called by the ICL. Each is marked on the plan as "to be confirmed". The Single Expert Witness [Name redacted] is noted at the relevant part of the trial plan to give evidence on the ninth day of trial, with it not being suggested that any other witness would be called that day nor that closing submissions would then proceed until the following day.

34All of those matters, and frankly many more that have emerged over the course of the proceedings, squarely raise concerns as to the appropriate management of the case moving forward. For the benefit of the husband, who is presently self-represented, I propose to summarise the relevant principles.

Principles for the conduct of child related proceedings

35Section 69ZN of the Family Law Act 1975 (Cth) ("the Act") 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.

36The 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.

37The second principle is that the Court is to actively direct, control and manage the conduct of the proceedings.

38The 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.

39The 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.

40The 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.

41Section 69ZQ 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.

42In giving effect to the principles, the Court is empowered by s 69ZX to, among other things:

(a)give directions or make orders about the matters in relation to which the parties are to present evidence;

(b)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;

(c)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;

(d)limit the time for oral argument and for the giving of evidence;

(e)direct or order that evidence in relation to a particular matter, or evidence of a particular kind, not be presented by a party;

(f)limit, or decline to allow, cross-examination of a particular witness; and

(g)limit the number of witnesses who are to give evidence in the proceedings.

43Those 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.[3]

Principles for the conduct of litigation more broadly

[3] See Pickford & Pickford [2024] FedCFamC1A 249.

44The Court has inherent power to stay or dismiss proceedings or parts of proceedings which are frivolous, vexatious or an abuse of process.[4] 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".[5]

[4] Taylor v Taylor (1979) FLC 90-674 and the authorities there cited.

[5] Rogers v The Queen (1994) 181 CLR 251.

45The Court has an implied power more generally to ensure the effective exercise of its jurisdiction, subject to the requirements of procedural fairness.[6]

[6] Teo & Guan [2015] FamCAFC 94.

46That 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.

47The proper scope and purpose of cross-examination of witnesses, particularly non-expert witnesses, is well-established. As has been observed,[7] "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.[8]" 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 matters of primary fact within their knowledge.

[7] P v Q (No 2) (2023) 67 Fam LR 399, [51].

[8] Browne v Dunn (1893) 6 R 67 (HL).

48While of course case management principles are not an end of themselves, and 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.[9]

Application of relevant principles to the present case

[9] 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.

49As will be apparent from the matters just summarised, I hold a number of concerns as to the appropriate conduct of the trial in these proceedings. They are related to, but not limited to, the obvious concern at the fairly last-minute doubling of the time required for trial as estimated by the solicitors involved.

50First, it is not clear whether by his recently filed interlocutory application the husband intends also to seek to amend the final relief he seeks. That is so for a variety of reasons, not least the filing by the husband of a subsequent witness affidavit expressing the view that "shared custody" is in Child J's best interests.[10]

[10] See the Affidavit of [Ms N] affirmed [in] August 2024 and filed [in] February 2025 at paragraph [159].

51Second, as presently informed I am unconvinced that it is reasonably necessary for each of the parties to be cross-examined for two full days.

52Third, the asserted probative value of the evidence to be given by a number of lay witnesses is unclear.

53Fourth, as earlier noted, the trial plan is less than definite in relation to witnesses apparently to be called by the ICL, although some limited clarity was achieved in that regard this morning.

54Further, the husband has indicated his intention to call a significant number of further as yet unnamed witnesses. No view can presently be reached as to whether that should be permitted, and if so whether any conditions should be imposed.

55I propose to make orders directed towards addressing those issues. I foreshadow that I am considering the robust exercise of the powers to direct, control and manage the conduct of the proceedings explained earlier in these reasons, including the powers of the Court to limit the number of witnesses, the matters in respect of which evidence can be given, and cross-examination. For obvious reasons, I would not exercise those powers without giving the parties and the ICL proper opportunity to consider relevant matters and to be heard on the point.

56I acknowledge that the husband has indicated in correspondence that he does not consider himself able to be specific about the evidence he intends to call at trial, or other matters, without the benefit of the legal advice he anticipates receiving once he is allocated a lawyer under the relevant scheme. There are a number of observations to be made in that regard.

57There is nothing in the conduct of the proceedings to date to indicate any reticence on the part of the husband to articulate the relief he seeks, prepare documents, identify potential witnesses and have them swear affidavits. He has filed at least 10 interim and interlocutory applications to date. He has demonstrated capacity to identify what he would regard as being relevant legal issues, including for example by applying for the recusal of the Chief Judge by reference to the principles of apprehended bias.

58Further, a significant percentage of litigants in this Court proceed to trial unrepresented and find it necessary to undertake all relevant preparation and advocacy themselves. While I accept that the husband is taking appropriate steps to secure representation for trial by accessing the relevant scheme, that only goes so far. The current limitations faced by those administering the scheme, both in terms of funding and the availability of lawyers willing to take assignments, mean that lawyers are not being allocated to those eligible under the scheme until after a trial has been listed. By that mechanism, priority is given to cases where trials are looming, and the scope of preparatory work to be done under the relevant grant is limited to that ordinarily done after all relevant trial affidavits have been filed, and the matter is ready to proceed.

59In all those circumstances, there is no utility in deferring the required definition of issues, and consideration of limitations on evidence, until after a lawyer is assigned to the husband under the scheme. A trial will not be listed until the issues are defined and limitations on evidence considered, and a lawyer will not be allocated until after a trial is listed.

Disposition

60I propose therefore to make orders requiring the parties and the ICL to take necessary steps to enable proper consideration of the appropriate management of the case moving forward, and the potential exercise of the powers referred to earlier in these reasons. Those steps must necessarily be taken in a logical sequence. I propose to ensure that they are taken in a timeframe which will enable them, and any submissions the parties wish to make, to be considered at the hearing which is already scheduled [in] May 2025. In that way, any delay of the progress of the matter towards trial will be minimised to the extent possible. So that there can be no confusion, I confirm that the orders already made directed towards the hearing of the husband's Form 2 Application filed [in] February 2025 at that scheduled hearing remain in place.

61For reasons which should be obvious from what has already been set out, there is no utility in the matter remaining in the Callover listed [in] May 2025. I will remove the matter from that Callover to avoid the need for an unnecessary Court attendance and associated cost.

62There will be the following orders:

1.In the event that the Applicant wife, [Ms Stanhope], seeks final orders which differ from those set out in her Minute of Proposed Final Orders filed [in] January 2025, she must file and serve a further Minute of Proposed Final Orders by no later than 4.00 pm on 17 April 2025.

2.In the event that the Respondent husband, [Mr Stanhope], seeks final orders which differ from those set out in his Minute of Proposed Final Orders filed [in] August 2024, he must file and serve a further Minute of Proposed Final Orders by no later than 4.00 on 17 April 2025.

3.By no later than 4.00 pm on 24 April 2025, each party and the Independent Children's Lawyer must file and serve the following:

(a)Papers for the Judicial Officer in the usual form;

(b)a list of all witnesses who have already sworn affidavits which have been filed in the proceedings upon which that party or the Independent Children's Lawyer would intend to rely at trial;

(c)in respect of each such witness, a short statement of the factual issue or issues in the proceedings to which the evidence of that witness is asserted to be relevant;

(d)a list of any other witnesses in respect of whom that party or the Independent Children's Lawyer would propose to prepare, have sworn and file affidavits to be relied upon at trial;

(e)in respect of each such proposed witness, a short statement of the factual issue or issues in the proceedings to which the evidence of that witness is asserted to be relevant;

(f)a list of any other witnesses that party or the Independent Children's Lawyer would propose to subpoena to give evidence at trial; and

(g)in respect of each such proposed subpoenaed witness, a short statement of the factual issue or issues in the proceedings to which the evidence of that witness is asserted to be relevant.

4.At the listed hearing [in] May 2025, each party and the Independent Children's Lawyer must be in a position to make submissions as to the appropriate 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.

5.Any written submissions to be relied upon by either party or by the Independent Children's Lawyer addressing the matters referred to in the immediately preceding order must be filed and served by no later than 4.00 pm on 2 May 2025.

6.The proceedings are removed from the Callover [in] May 2025.

7.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]