STANHOPE and STANHOPE - [2023] FCWA 204

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: STANHOPE and STANHOPE [2023] FCWA 204
CORAM: SUTHERLAND CJ
HEARD: 4 SEPTEMBER 2023
DELIVERED : 27 SEPTEMBER 2023
FILE NO/S: 6561 of 2018
BETWEEN: MS STANHOPE
Applicant
AND
MR STANHOPE
Respondent

Catchwords:

PRACTICE AND PROCEDURE – Application to discharge Independent Children’s Lawyer – Proper basis for discharge not established – Application dismissed – Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr E
Respondent	:	In Person
Independent Children's Lawyer	:	Mr Z

Solicitors:

Applicant	:	Law Firm C
Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	Law Firm G

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

Langmeil v Grange (No 3) [2011] FamCA 171
Stanko & Taylor [2021] FCWA 110
T and L (2000) FLC 93-056
Stanhope and Stanhope [2023] FCWA 174
W & M and Anor [2006] FamCA 512

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 121(9)(g) of the Family Law Act 1975 (Cth).

INTRODUCTION

1[Mr Stanhope] (the father) and [Ms Stanhope] (the mother) are involved in parenting proceedings in this Court in relation to their six‑year-old son, [J], who was born in November 2016 (J / the child). The current proceedings are still in the relatively early stages and have been complicated by a number of matters, as follows: firstly, there is significant mistrust and conflict between the parties, including what is the appropriate treatment regime for J, given his diagnoses of Autism Spectrum Disorder (ASD), Attention Deficit Hyperactivity Disorder (ADHD), and Global Developmental Delay (GDD), with risk of developing an intellectual disability; secondly, each party making significant allegations that the other has subjected them to family violence; thirdly, each party alleging that J has made disclosures of physical and/or emotional abuse by the other party, in circumstances where there is little, if any, independent corroborative evidence of the child suffering any non-accidental and/or deliberate injury or inappropriate discipline whilst in the care of either party; and fourthly, both parties (to a greater or lesser extent) appearing to accept that J’s alleged disclosures of abuse about the other party are entirely truthful, notwithstanding that there may be other plausible explanations for J making the alleged disclosures, particularly having regard to the ongoing conflict and mistrust between the parties and J’s significant developmental issues.
2On 25 May 2023, the father filed a Form 2 application (the discharge application), seeking, inter alia, the following orders:
a)[Ms Q] be “dismissed and banned from acting” as an Independent Children’s Lawyer (ICL) “within my case”.
b)Ms Q be “banned” from being involved as an ICL…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading STANHOPE and STANHOPE

Details

AGLC: STANHOPE and STANHOPE [2023] FCWA 204
Case: [2023] FCWA 204
Decision Date: 27 SEPTEMBER 2023

CaseChat Overview and Summary

The applicants in this matter were parents seeking the discharge of the Independent Children’s Lawyer (ICL) appointed to represent their children in family law proceedings. The court was required to determine whether the application was justified. The matter was heard in the Family Court of Australia.

The key legal issues before the court were whether the applicants had established a proper basis for the discharge of the ICL, and whether the ICL had performed their duties in accordance with the statutory requirements. The court needed to assess the arguments presented by the applicants and consider the role and responsibilities of the ICL in family law proceedings.

The Family Court found that the applicants had not established a proper basis for the discharge of the ICL. The court noted that the ICL had acted in accordance with their statutory obligations, and that the application was made without sufficient justification. The court emphasised that the role of the ICL is to act in the best interests of the children, and that their discharge should only be considered in exceptional circumstances. The court concluded that the application was not warranted, and dismissed the application. The court further noted that each case turns on its own facts, and that the outcome of this case should not be seen as a precedent for other cases.

The Family Court did not make any specific orders, as the application for the discharge of the ICL was dismissed. The ICL remained appointed to represent the children in the family law proceedings.

Orders