STANKO and TAYLOR - [2021] FCWA 110

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: STANKO and TAYLOR [2021] FCWA 110
CORAM: TYSON J
HEARD: 11 JUNE 2021
DELIVERED : 18 JUNE 2021
FILE NO/S: PTW 754 of 2016
BETWEEN: MRS STANKO
First Applicant
AND
MR STANKO
Second Applicant
AND
MS TAYLOR
First Respondent
AND
MR STANKO JUNIOR
Second Respondent

Catchwords:

FAMILY LAW – Application to discharge the Independent Children’s Lawyer – Consideration of obligations and duties of an Independent Children’s Lawyer – Where the Court is not satisfied the circumstances warrant the discharge – Application dismissed – Case turns on its own facts

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

First Applicant	:	Mr I
Second Applicant	:	Mr I
First Respondent	:	Self-Represented Litigant
Second Respondent	:	Self-Represented Litigant
Independent Children's Lawyer	:	Ms Z

Solicitors:

First Applicant	:	Law Firm B
Second Applicant	:	Law Firm B
First Respondent	:	Self-Represented Litigant
Second Respondent	:	Self-Represented Litigant
Independent Children's Lawyer	:	Law Firm A

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

Antoun v The Queen (2006) 80 ALJR 497
Johnson v Johnson (2000) 201 CLR 488
Knibbs & Knibbs [2009] FamCA 840
Langmeil v Grange (No 3) [2011] FamCA 171
T and L (2000) FLC 93-056
W & M and Anor [2006] FamCA 512

TYSON J:

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 Stanko & Taylor and Anor has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

1Before the Court is the application of the mother seeking the discharge of the Independent Children’s Lawyer (“the ICL”). The application is opposed by the ICL, the paternal grandparents and the father.

WHAT IS THE EVIDENCE RELIED UPON?

2The mother relies on her affidavit filed 31 May 2021. The paternal grandparents rely on the affidavit of [Ms A] filed 9 June 2021. The ICL relies on her affidavit filed 9 June 2021. The father has not elected to file any documents, however in his oral submissions, he opposed the discharge of the ICL.
3I have read and carefully considered all of the evidence. I have also had the benefit of hearing submissions from each of the parties. As I explained during the hearing, I am unable to make findings of fact where the evidence is in dispute. That will be the task of the trial judge, who will have the benefit of hearing the evidence be tested, by way of cross‑examination. I do not intend to refer to all of the evidence, because it is not practical or necessary to do so. Where I do not refer to part of the evidence, it should not be assumed that I have ignored it, or that I have overlooked it.
4The mother is a self-represented litigant. After receipt of her…

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 STANKO and TAYLOR

Details

AGLC: STANKO and TAYLOR [2021] FCWA 110
Case: [2021] FCWA 110
Decision Date

CaseChat Overview and Summary

In the Family Court of Western Australia, Mrs Stanko sought to discharge the Independent Children's Lawyer (ICL) in a matter concerning her five-year-old child, Child A. The application was opposed by the ICL, the paternal grandparents, and the father. The mother alleged the ICL had failed in her duties, was biased, and acted as an advocate for the paternal grandparents and the father. The ICL denied the allegations and asserted she had acted in Child A's best interests. The Court considered the role and responsibilities of the ICL, and the principles concerning apprehension of bias. The Court found that the mother's complaints were generalisations, without evidence to support her accusations. The mother's evidence was subjective and disputed by the ICL. The Court held that the mother had failed to establish grounds upon which the ICL should be discharged. The application was dismissed, and the costs of all parties were reserved to the trial judge.

Orders