Haenkel & Haenkel
[2023] FedCFamC1F 110
•28 February 2023
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Haenkel & Haenkel [2023] FedCFamC1F 110
File number(s): BRC 16312 of 2021 Judgment of: HOGAN J Date of judgment: 28 February 2023 Catchwords: FAMILY LAW – CHILDREN – Where the child has been diagnosed with Gender Dysphoria – Where the applicants are the parents of the child – Where the child has become a party to the proceedings – Where the applicants seek an order appointing a single expert witness – Where the applicants’ application is dismissed. Legislation: Family Law Act 1975 (Cth)
Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021
Cases cited: Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Secretary, Department of Health and Community Services v J.W.B. and S.M.B. (1992) 175 CLR 218; [1992] HCA 15 (“Marion’s case”)
Division: First Instance Number of paragraphs: 22 Date of hearing: 24 February 2023 Place: Brisbane Solicitor for the Applicants: Mr Anderson, Biddulph & Salenger Counsel for the First Respondent: Ms Hughes of Counsel Solicitor for the First Respondent: Minter Ellison Lawyers Solicitor for the Second Respondents: Ms Guerin as town agent for Franklin Family Law Counsel for the Intervener: Ms Oakley of Counsel Solicitor for the Intervener: Aylward Game Solicitor for the Independent Children’s Lawyer: Ms Huth, Legal Aid Queensland ORDERS
BRC 16312 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HAENKEL AND MR HAENKEL
Applicants
AND: E HOSPITAL AND SERVICES
First Respondent
MS CORCORAN AND MR CORCORAN
Second Respondents
W
Intervener
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
28 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The Application in Proceeding filed 30 January 2023 (and sealed 2 February 2023) by the Applicants is dismissed.
2.The parties appear before Senior Judicial Registrar Brooks at noon on 15 March 2023 for the making of Directions to facilitate the hearing of the trial in the week commencing 22 May 2023.
3.The Applicants, Second Respondents and Intervener are excused from attendance at the Directions Hearing referred to in Order 2 above, unless they are appearing as a litigant in person at the final hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Haenkel & Haenkel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
This case is about the child W, who was born in 2007 and who is currently 15 years of age.
The parties have been advised that these proceedings will be listed for final hearing in the week commencing 22 May 2023.
The future conduct of the proceedings
One of the issues that requires determination is whether, at that time, the hearing should address only the application made by W (as particularised in the Response filed 22 February 2023) for the second respondents to be accorded sole parental responsibility and for the applicants to no longer share in the same (as has been the case pursuant to a parenting order made by consent – ostensibly on a final basis – in October 2022) or whether the hearing should also be the time at which the Court is asked to determine the additional relief sought by W and the applicants – namely, whether W is Gillick[1] competent to consent to Stage 1 and Stage 2 treatment for gender dysphoria and/or whether such treatment should be authorised by the Court.
[1]Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 referred to with approval by the High Court in Secretary, Department of Health and Community Services v J.W.B. and S.M.B. (1992) 175 CLR 218 (“Marion’s case”).
Upon reflection, I am not persuaded that, even if an order for sole parental responsibility was made in the favour of the second respondents, this would resolve the issue between W and the applicants as it has just been described: even if deprived by an order of the parental responsibility accorded to all parents without the necessity for an order, the applicants would clearly be persons concerned in the welfare of W[2]; they would, I consider, continue to have standing to bring the application currently before the Court – particularly noting that they commenced proceedings in December 2021 and that the relief sought by W in relation to the allocation of sole parental responsibility to the second respondents is relief that has only been recently raised.
[2] Family Law Act 1975 (Cth) s 65C.
Given this conclusion, in the circumstances of this case and having regard to its history and the relief presently sought by all of those who are now parties to it, I consider that the interests of justice are best served by there being only one hearing – at which the parties will have the opportunity to adduce evidence in relation to the following relief which has been sought and which will be the subject of consideration then:
(a)the allocation of sole parental responsibility to the second respondents; and
(b)whether W has correctly been diagnosed with gender dysphoria; and
(c)whether W is Gillick competent to consent to the administration of Stage 1 and Stage 2 treatment for gender dysphoria; and
(d)whether the Court should authorise the provision of treatment for Stage 1 and Stage 2 treatment for gender dysphoria to W.
I consider that the issues summarised above for the assistance of the parties include reference to Stage 2 treatment in circumstances where the evidence at this stage is to the effect that W (who is presently already receiving Stage 1 treatment) is not presently proposing that such treatment be administered. Given this circumstance, the submissions made by Ms Hughes on behalf of the first respondent – to the effect that the first respondent is concerned that being required to assess W for Gillick competence in relation to Stage 2 treatment has with that an associated risk that the child may feel pressured about whether or not the receipt of such treatment is something which is desired – are completely understandable and reasonable.
However, I also record that W specifically seeks a declaration about possessing Gillick competence for Stage 2 treatment and/or that the same is authorised.
Given that:
(a)this is the relief sought; and
(b)W is a party to these proceedings and legally represented; and
(c)as outlined during the course of the hearing last week, the Court is concerned to act so as to avoid (if at all possible) future urgent applications in relation to the issue of the administration of Stage 2 treatment to W,
I am confident that those who represent W will explain clearly that the purpose of addressing the issue of Gillick competence vis-à-vis Stage 2 treatment is not intended to place pressure on or encourage a decision about proceeding to embark with that treatment – but, rather, to attempt to ensure that these parties do not in the future return on an urgent basis to the Court if a decision about the administration of Stage 2 treatment is taken in the future.
Whilst it is also clear that an assessment of Gillick competence should properly occur in relation to a specific procedure at a time relevantly proximate to the administration of that treatment, I consider it appropriate in this case (so as to ameliorate the risk already identified) that the evidence adduced at the May 2023 final hearing include the expressions of opinion by appropriate experts on the basis of a hypothetical: namely, that if such persons were asked now to assess whether W is Gillick competent to consent to Stage 2 treatment for gender dysphoria, what would be the result of that assessment?
The Applicants’ application for the appointment of an expert witness
A further matter that requires determination now is the applicants’ application for an order appointing Dr F as a single expert witness[3] or as an expert witness[4] and, if such an order is made, for orders ancillary to the same to require W and the applicants to attend upon such medical practitioner at such times as the medical practitioner considers appropriate.
[3] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 7.04.
[4] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 7.10.
Whilst the raft of orders particularised in the Outline of Case document filed on behalf of the applicants on 24 February 2023 was, in my view, more extensive than that particularised in the Application in a Proceeding filed 30 January 2023 (sealed 2 February 2023) which was listed before the Court, resolution of the issue about whether it is appropriate, at this time and on the evidence now before the Court, to make an order appointing Dr F as an expert will be sufficient to deal with the relief formally sought by the applicants now.
The first respondent has already adduced evidence from a number of medical practitioners who have, to date, been involved in providing medical treatment to W. This evidence includes the opinion/s that W has gender dysphoria and is Gillick competent to consent to receive Stage 1 treatment.
The applicants’ application for the appointment of Dr F as an expert witness needs to be considered in the circumstance where aspects of their contentions include that W does not have gender dysphoria and that the child is not Gillick competent to consent to Stage 1, 2 and 3 treatment.
W does not consent to attending upon Dr F. As noted during the hearing, such a position is not, of course, determinative of the issue – many parents and children are routinely required by order to attend upon a person with relevant expertise for the purpose of enabling the Court to have before it expert opinion evidence to assist it in its deliberations about the terms of parenting orders which are in a particular child’s best interests. Further, adults are routinely ordered to attend for medical assessments in litigation involving claims for personal injuries where the purpose of such an attendance is to ensure that the defendants/respondents in that litigation are put in the position of being able to adduce evidence contrary to the evidence relied upon by a claimant in support of their claim.
The only evidence about Dr F is contained within the applicants’ solicitor’s affidavit, which notes only that Dr F is a child and adult psychiatrist and which annexes a copy of her curriculum vitae. Reference to the curriculum vitae does not establish to me that Dr F has any particular expertise in diagnosing gender dysphoria or providing treatment to persons presenting with, or being assessed for the presence of, gender dysphoria.
The difficulty for the applicants in the present application is that, in my view, the evidence adduced in support of the same does not persuade of the utility of an order requiring W to attend upon Dr F. This is because I am not satisfied on the evidence before me that she possesses the necessary expertise to undertake the scope of the assessment sought by the applicants being:
(a)whether W is competent to consent to the administration of Lupron/Lucrin when prescribed in connection with gender dysphoria; and
(b)whether W is competent to the proposed Stage 2 treatment for gender dysphoria (namely, the administration of cross-sex hormones and associated medications) including, but not limited to, whether W has capacity to make an informed decision as to the impact of the proposed Stage 2 treatment on future fertility and sexual functioning; and
(c)the appropriateness of Stage 2 treatment for gender dysphoria for W and whether there are any appropriate alternatives, having regard to W’s circumstances, clinical history and current health conditions; and
(d)whether W’s gender dysphoria is an epiphenomenon of other comorbidities or diagnoses; and
(e)the degree of risk that W may, in future, regret the physical changes caused by Stage 2 treatment for gender dysphoria.
Whilst the solicitor for the applicants submitted that the purpose underpinning the application for an order seeking the appointment of Dr F was also so that she could undertake a broader and wider ranging assessment of W’s mental health generally (and, in essence, because the receipt of such assessment may alleviate the concerns expressed by the applicants to date), I am not persuaded that this (advanced during the hearing and without prior notice to the other parties) justifies the making of what would be a mandatory injunction requiring W to attend upon Dr F contrary to the child’s wishes.
If I had been persuaded that the consequence of W being required to attend on Dr F would have been the provision of an assessment by a medical practitioner with expertise in:
(a)the assessment and/or diagnosis of gender dysphoria; and
(b)the associated assessment of Gillick competence; and
(c)the treatments available in circumstances in which a person is diagnosed with gender dysphoria and the risks (of whatever kind) associated with the same,
then it is certainly possible that I may have been persuaded that the balance of convenience and the requirement to afford fairness to litigants in the presentation of their respective cases favoured the making of such an order.
However, given that, on the evidence before me, I am not satisfied of these matters, I dismiss the Application in a Proceeding filed by the applicants on 30 January 2023.
Attendance for Directions
As the matter has now been accorded hearing dates with priority and the issues to be the subject of that hearing have been identified above, it is necessary for the parties to consider a number of practical issues which need to be addressed to ensure that the final hearing proceeds as listed.
Such matters include: the likely duration of the hearing; the evidence to be adduced in each of the cases of the parties to the litigation and the timetabling for the presentation of the same; whether there is a need for specific orders for disclosure of relevant documents by the parties (noting the ongoing obligation of disclosure imposed by the Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 on all parties to litigation in this Court); the timetabling for the provision of any objections to evidence; when written outlines in support of the relief sought are to be filed.
In order to facilitate the making of Directions to address such matters – and any other matters the parties assert require Directions in order to ensure that the final hearing proceeds within the week commencing 22 May 2023 – the matter will be listed for a Directions hearing before a Senior Judicial Registrar at noon on 15 March 2023.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 28 February 2023
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