Isidro and Halleson - [2020] FamCA 273

FAMILY COURT OF AUSTRALIA

ISIDRO & HALLESON

[2020] FamCA 273

FAMILY LAW – CHILDREN – parental responsibility – terms of reference for Single Expert – contested gender issues.

Family Law Act 1975 (Cth) ss 60B, 60CC
Family Law Rules 2004 (Cth) rules 1.04, 15.44, 15.45, 15.46

Re Kelvin [2017] FamCAFC 258

APPLICANT:

Mr Isidro

RESPONDENT:

Ms Halleson

INDEPENDENT CHILDREN’S LAWYER:

Evans Family Lawyers

FILE NUMBER:

CAC

1988

2019

DATE DELIVERED:

23 April 2020

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

20 April 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Strong Law Pty Ltd

SOLICITOR FOR THE RESPONDENT:

Watts McCray Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Jeanine Lloyd & Associates

Orders

That pursuant to Order 7 of the Orders dated 8 November 2019, Dr B is appointed as the Single Expert in this matter ("Single Expert").
The reasonable remuneration and expenses of the Single Expert shall be paid by the parents in equal shares, i.e. 50% by the Mother and 50% by the Father.
The expert shall be provided with copies of the following documents:
3.1.      Family Court Orders dated 11 October 2019;
3.2.      Family Court Orders dated 8 November 2019;
3.3.      Family Court Orders dated 20 March 2020;
3.4.      Initiating Application filed by Mr Isidro on 3 October 2019;
3.5.      Affidavit of Mr Isidro filed on 3 October 2019;
3.6.      Notice of Risk signed by Mr Isidro on 30 September 2019;
3.7.      Response filed by Ms Halleson on 31 October 2019;
3.8.      Affidavit of Ms Halleson filed 31 October 2019;
3.9.      Notice of Risk filed by Ms Halleson on 31 October 2019;
3.10. Section 69ZW material;
3.11. Material produced under subpoena to:
a.        Department of Human Services (Medicare);
b.        C Medical Centre;
c.Any other subpoena issued prior to interviews with the Single Expert.
3.12.Statement/s of facts pursuant to Rule 15.54(3) or Rule 15.54(4) of the Family Law Rules 2004 (Cth).
3.13.Undertakings by Mr Isidro to the Magistrate's Court of the Australian Capital Territory dated 2 March 2020.
3.14. The Australian standards of care and treatment guidelines for transgender and gender diverse children and adolescents.
3.15.Position Statement of the Australian standards of care and treatment guidelines for transgender and gender diverse children and adolescents prepared by Dr Michelle Telfer; Dr Michelle Tollit; Dr Cameron Pace and Dr Ken Pang.
Where the Single Expert provides an opinion, she is to state the information she relies on in forming that opinion, and the manner in which that information has impacted upon her formation of that opinion.
That in preparation of the Single Expert report, the Single Expert shall:
5.1. Investigate all matters relating to the care, welfare and development of X, born … 2012 ("the child").
5.2.Carry out mental health assessments of Mr Isidro ("the father") and Ms Halleson ("the mother"), as well as any other assessment/s considered necessary;
5.3.Carry out such assessments of the child as the Single Expert considers necessary; and
5.4.Prepare a written report that complies with the Single Expert's duties and obligations…

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 Isidro and Halleson

Details

AGLC: Isidro and Halleson [2020] FamCA 273
Case: [2020] FamCA 273
Decision Date: 23 April 2020

CaseChat Overview and Summary

This matter came before Gill J concerning a dispute between Mr Isidro (the father) and Ms Halleson (the mother) regarding their child, X. The court was required to make orders concerning the appointment of a single expert to assist in determining the best interests of the child.

The primary legal issue before the court was the appointment of a single expert pursuant to Order 7 of previous court orders, and the scope of that expert's investigation and reporting obligations. The court needed to determine the specific documents the expert should be provided with, the nature of the assessments to be conducted, and the key matters the expert's report should address, all within the framework of the Family Law Rules 2004 (Cth).

Gill J ordered that Dr B be appointed as the Single Expert, with remuneration and expenses to be shared equally between the parents. The court provided a comprehensive list of documents to be supplied to the expert, including various court orders, applications, affidavits, notices of risk, and subpoenaed material. The expert was directed to investigate all matters relating to the child's care, welfare, and development, conduct mental health assessments of both parents and the child, and prepare a written report in accordance with the Family Law Rules. The report was to address a wide range of issues, including the benefit of a meaningful relationship with both parents, protection from harm, the nature of relationships, the likely effect of changes in circumstances, the capacity of each parent to meet the child's needs, and the child's maturity, sex, lifestyle, and background, including specific considerations regarding the child's expressed preferences about gender identity. The expert was also to consider the parents' attitudes to each other and to parenthood, their understanding of parenting strategies, their capacity to co-parent, and any views expressed by the child, assessing the weight to be given to those wishes.

Orders

Orders of the court

That pursuant to Order 7 of the Orders dated 8 November 2019, Dr B is appointed as the Single Expert in this matter ("Single Expert").

The reasonable remuneration and expenses of the Single Expert shall be paid by the parents in equal shares, i.e. 50% by the Mother and 50% by the Father.

The expert shall be provided with copies of the following documents:

3.1. Family Court Orders dated 11 October 2019;

3.2. Family Court Orders dated 8 November 2019;

3.3. Family Court Orders dated 20 March 2020;

3.4. Initiating Application filed by Mr Isidro on 3 October 2019;

3.5. Affidavit of Mr Isidro filed on 3 October 2019;

3.6. Notice of Risk signed by Mr Isidro on 30 September 2019;

3.7. Response filed by Ms Halleson on 31 October 2019;

3.8. Affidavit of Ms Halleson filed 31 October 2019;

3.9. Notice of Risk filed by Ms Halleson on 31 October 2019;

3.10. Section 69ZW material;

3.11. Material produced under subpoena to:

a. Department of Human Services (Medicare);

b. C Medical Centre;

c. Any other subpoena issued prior to interviews with the Single Expert.

3.12. Statement/s of facts pursuant to Rule 15.54(3) or Rule 15.54(4) of the Family Law Rules 2004 (Cth).

3.13. Undertakings by Mr Isidro to the Magistrate's Court of the Australian Capital Territory dated 2 March 2020.

3.14. The Australian standards of care and treatment guidelines for transgender and gender diverse children and adolescents.

3.15. Position Statement of the Australian standards of care and treatment guidelines for transgender and gender diverse children and adolescents prepared by Dr Michelle Telfer; Dr Michelle Tollit; Dr Cameron Pace and Dr Ken Pang.

Where the Single Expert provides an opinion, she is to state the information she relies on in forming that opinion, and the manner in which that information has impacted upon her formation of that opinion.

That in preparation of the Single Expert report, the Single Expert shall:

5.1. Investigate all matters relating to the care, welfare and development of X, born … 2012 ("the child").

5.2. Carry out mental health assessments of Mr Isidro ("the father") and Ms Halleson ("the mother"), as well as any other assessment/s considered necessary;

5.3. Carry out such assessments of the child as the Single Expert considers necessary; and

5.4. Prepare a written report that complies with the Single Expert's duties and obligations pursuant to Divisions 15.5.4, 15.5.5 and 15.5.6 of the Family Law Rules 2004 (Cth).

That in preparation of the Single Expert report, the Single Expert shall interview, assess and observe:

6.1. The father, Mr Isidro, born … 1971;

6.2. The mother, Ms Halleson, born … 1990; and

6.3. The child, X, born … 2012.

The Single Expert may invite other persons to participate in and facilitate the preparation of the Single Expert report but shall do so only after having given notice to each party, including the Independent Children's Lawyer. If any part of an additional person's input is included in the observations or conclusions of the Single Expert report, the source of and nature of such input shall be specifically identified.

Following reading and reviewing the documents listed at point 1 above, and conducting interviews and assessments, the Single Expert shall prepare a written report in relation to the following matters:

8.1. The benefit to the child of having a meaningful relationship with both of the child's parents.

8.2. The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

8.3. The nature of the relationship and emotional attachments between the child and other significant persons in the child's life, including:

a. Each of the child's parents; and

b. Other persons (including any grandparent or other relative of the child).

8.4. The likely effect of any changes in the child's circumstances, including:

a. The likely effect on the child of any separation from:

i. either of the child's parents;

ii. any other child, or other person (including any grandparent or other relative of the child), with whom the child has been living.

b. The variation or discharging of Order 18 made on 8 November 2019.

8.5. The capacity of the following classes of persons to provide for the needs of the child, including emotional and intellectual needs:

a. each of the child's parents; and

b. any other person (including any grandparent or other relative of the child).

8.6. The maturity, sex, lifestyle, and background (including lifestyle, culture and traditions) of the child and either of the child's parents, and any other characteristics of the child that the Single Expert considers relevant, including but not limited to the allegations that the child prefers to be treated as male and by the allegedly self-affirmed name of "Y" and the allegation that the child prefers the name “X”. The Single Expert is not requested to determine whether the child has gender dysphoria, but to make recommendations (if any) in relation to further investigations and interventions.

8.7. The attitude of each parent to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents, including but not limited to:

a. their attitudes to each other;

b. Encouraging, facilitating contact and the child's relationship with the other parent.

8.8. The impact of any family violence involving the child or a member of the child's family.

8.9. The understanding of each party of appropriate parenting strategies and behaviours, and the ability of each to implement such parenting strategies and whether or not each parent would benefit from participation in a parenting course or program.

8.10. The capacity of both parents to provide for the child's physical needs, both without support from other persons and with support that can reasonably be expected from other persons including other family members.

8.11. The capacity of the parents to co-parent effectively in a week about shared care or any other arrangement.

8.12. The likely effect and significance of any different capabilities and approaches to parenting of each of the mother and father for the interests of the child in an equal time care arrangement.

8.13. The capacity of the parents, either jointly or separately to be able to effectively manage care of the child and particular issues in relation to the children’s physical; psychological and emotional well-being as they arise;

8.14. Any views expressed by the child and any factors which the Court Expert considers are relevant to the weight that ought to be given to those wishes, including but not limited to:

a. the child’s respective age and maturity;

b. the degree of understanding and appreciation by the child of the factors involved in the issue before the Court and their longer term implication;

c. the strength and duration of the child's wishes;

d. the extent to which those wishes are based on a choice that is well thought through and appropriate as distinct from peripheral matters;

e. the extent to which those wishes are the result of pressure on the child and thus far how they reflect the child’s own choice;

f. the likely impact on the child of an order contrary to their wishes, in this regard the child may not be required to express any wish or view.

8.15. Any other fact, matter or circumstance that the Single Expert considers to be significant and/or relevant to the Court's determination about what Orders should be made in the best interests of the child.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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