Re: Addison
[2021] FamCA 253
•13 April 2021
FAMILY COURT OF AUSTRALIA
Re: Addison [2021] FamCA 253
File number(s): File number has been suppressed Judgment of: HOWARD J Date of judgment: 13 April 2021 Catchwords: FAMILY LAW – MEDICAL PROCEDURES – Application for Stage 2 treatment of Gender Dysphoria – where the father is not a party to the proceedings and has not been served – where the mother seeks to proceed on an ex parte basis – whether an Independent Children’s Lawyer should be appointed – whether proceedings should be conducted in a closed courtroom. Legislation: Family Law Act 1975 (Cth) Cases cited: Re Imogen (No.6) (2020) 61 Fam LR 344.
Re Shane (Gender Dysphoria) [2013] FamCA 864
Re Jordan [2015] FamCA 175
Re Lucas [2016] FamCA 1129
Re K (1994) 117 FLR 63
Number of paragraphs: 17 Date of last submission/s: 13 April 2021 Date of hearing: 13 April 2021 Representation: The names of legal practitioners have been suppressed ORDERS
THE MOTHER
Applicant
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
13 APRIL 2021
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the child Addison born in 2004 be represented in these proceedings and it is requested that the Solicitor for the ICL arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Family Court of Australia.
2.That this matter be adjourned for further hearing commencing at 10:00am on 20 April 2021 in the Family Court of Australia.
3.That pursuant to s.97(2) of the Family Law Act 1975 (Cth), these proceedings be conducted in a closed Courtroom until further Order.
4.That the mother be granted leave to file and serve any further written submissions.
5.That the applicant be permitted to make an application to attend by telephone-link on 20 April 2021, provided that:
(a)The applicant (or her legal representative) consult the Independent Children’s Lawyer as to their position on the applicant appearing by telephone link; and
(b)The applicant (or her legal representative) shall inform the Court of the Independent Children’s Lawyer’s view when making such application to appear by telephone-link.
IT IS NOTED:
A.It is requested that the Solicitor for the ICL urgently appoint an Independent Children’s Lawyer in this matter prior to the next hearing in this matter on 20 April 2021.
B.That on 20 April 2021, the Court shall determine the following matters:-
(i)Whether this matter should continue to proceed in a closed court;
(ii)Whether this matter should proceed on an ex parte basis and:
(a)In the event the Court concludes the matter should proceed on an ex parte basis – then the Court shall proceed to hear the matter ex parte on 20 April 2021; and
(b)In the event the Court concludes the matter should not proceed on an ex parte basis – then the Court shall consider making orders for the service of the application on the father and the Court shall consider listing the matter for further hearing of the application on 28 April 2021.
(iii)The oral application of the applicant for the subject child in these proceedings to be present in the Courtroom for the hearing of the application.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Re Addison has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
A. These reasons were delivered ex tempore on 13 April 2021 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court.
HOWARD J:
The matter before the Court relates to one child. The child’s name is Addison. Addison was born as a female in 2004 but Addison identifies as a male and prefers to use male pronouns. Addison has been diagnosed with gender dysphoria. Addison commenced stage 1 treatment for gender dysphoria in June 2020. The Court has been informed that there is evidence to confirm that the child was actually referred to a gender clinic in July of 2019 for a first attendance. There was then some delay before the commencement of stage 1 treatment for the child and that delay was partially due to the onset of the COVID-19 pandemic. The nature of stage 1 treatment; stage 2 treatment and stage 3 treatment – in respect of gender dysphoria – has been well-documented and clearly enunciated in the material before the Court in the current case and in numerous cases of this nature which have been before the Family Court of Australia within the last 20 years.
Counsel for the mother of counsel appears on behalf of the applicant mother. Counsel for the mother informs the Court that a proceeding was commenced in the Supreme Court in 2020. But the Court was told today that, after the decision of the Family Court of Australia in Re Imogen (No.6) (2020) 61 Fam LR 344 – a decision of Watts J – a proceeding was commenced in the Family Court of Australia. I do note that the first application was not filed here in the Family Court of Australia until 29 March 2021. Only 15 days ago. The question of time is important because in terms of the stage 2 treatment in respect of which orders are sought it is important that the stage 2 treatment proceed sooner rather than later according to the medical evidence, in particular the evidence of Dr B. It is not as yet altogether clear to me why proceedings were initially commenced by the applicant in the Supreme Court.
The case currently before the Court is unlike any other case of this nature to which I have been referred. The difference is in this respect – in the case currently before the Court the father is not a party to the proceedings and, further, the father has not been served with the application. Addison’s mother has sworn an affidavit that she considers it would be detrimental to Addison if the father was served and involved in this application. Furthermore, there is another affidavit from Dr B, the psychiatrist who is the clinical director of the relevant gender clinic, to the effect that, in his opinion, the potential impact of Addison’s father’s involvement in the hearing would be both traumatic and potentially detrimental to Addison’s mental health in both the short and long term and could possibly further irreparably damage Addison’s relationship with his father. In this respect I note paragraph 3 of the affidavit of Dr B filed on 9 April 2021.
When the matter commenced in Court today I sought submissions from Counsel for the mother in relation to the possible appointment of an Independent Children's Lawyer (“ICL”). Counsel for the mother referred the Court to three instances where an Independent Children's Lawyer was not appointed in an application of this kind. Those cases, in chronological order, are: Re Shane (Gender Dysphoria) [2013] FamCA 864; a decision of Murphy J; Re Jordan [2015] FamCA 175, a decision of Kent J; and Re Lucas [2016] FamCA 1129, a decision of Tree J. In all three cases the presiding judge granted leave to the child to be present at the hearing and the presiding judge took the view that the appointment of an ICL was not necessary. Indeed, the word used by Kent J in Re Jordan, particularly in paragraph 10, was that he considered that the appointment of an ICL would be “superfluous” in terms of the Court being able to adequately exercise the relevant jurisdiction. His Honour did note, though, further in paragraph 10 that in that case before the Court (namely the case of Re Jordan) there was:
Unanimity amongst the medical experts, and between Jordan and his parents, as to the proposed treatment, and the affidavit material from the experts, and Jordan’s parents, and Jordan himself, contain consistent accounts of Jordan’s strong and considered views.
In Re Shane, Murphy J pointed out at paragraph 3 that there was in that case:
Unanimity amongst the experts and between Shane and his parents as to the treatment.
Again, in the matter of Re Lucas there does not appear to have been any doubt that both parents were involved and there was no dispute about the competency of the child and there does not appear to have been in Re Lucas any dispute as to the treatment.
There are a number of matters to refer to here. Firstly, at the outset today when the matter was called on – the mother appears by telephone from her residence. The child was also present on the line. I indicated that I did not wish today to proceed with the child present. I stood the matter down. When the Court reconvened the mother remained on the telephone line but not the child.
I was urged by Counsel for the mother of counsel not to appoint an ICL – primarily because there would be unnecessary delay and also because of the fact that there is a significant amount of medical evidence and other evidence to confirm the diagnosis, the maturity of the child, the recommendations concerning treatment, the views of the child, the views of the mother. In all of those respects, Counsel for the mother is correct. But it is a rather exceptional case when one has regard to the long list of cases where this issue has been considered by the Court and the exceptional point here relates to the desire of the applicant mother to proceed on an ex parte basis so far as the father is concerned.
The view that I have formed is because of that unusual aspect to the case – that is the desire of the applicant mother to proceed on an ex parte basis – that the proper approach for this Court to adopt is to appoint an Independent Children's Lawyer. I am aware that the relevant Government Department has been served and apparently an email was received recently and it is annexed to the mother’s solicitor’s affidavit confirming they have no interest in being involved. I am aware of that but it is an unusual situation and the initial question for determination by the Court will be whether in fact the matter should proceed on an ex parte basis and I think that the Court will benefit from submissions by an Independent Children's Lawyer in relation to that issue. The matter has been before this Court for 13 days. There will be no undue delay in attending to this matter. I can assure the family in that regard.
In Re K (1994) 117 FLR 63, one of the matters to be taken into account where there is a consideration of an appointment of an ICL:
(vii) Where there are issues of significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child or other persons having significant contact with the children.
I note paragraph (xiii) of Re K – in relation to applications in the Court’s welfare jurisdiction relating to the medical treatment for children. Point (xiii) of Re K states:
(xiii) Applications in the court's welfare jurisdiction relating in particular to the medical treatment of children where the child's interests are not adequately represented by one of the parties
I was also referred to a relevant Practice Direction in relation to the role of the Independent Children's Lawyer. I will note two things, firstly, it is an old Practice Direction but nonetheless still no doubt relevant in many respects. I do note that in paragraph 4.8(g) that one of the benefits of an ICL is to “make submissions regarding the case management of the case”. I would also take that to mean make submissions in relation to the procedural aspects of the case, including the question of procedural fairness in relation to the service or non-service or the joinder or non-joinder of the father in the application.
It may well be the case that the Court concludes that (as the Court did in Re Shane and Re Jordan) there is plenty of evidence to support proceeding to make the orders sought by the applicant. But, as I say, there is the exceptional nature to this case being the non-involvement of one of this child’s parents. I am aware (because I have read) of the allegations against the father. There is a protection order against the father. I am aware because I have read what the child’s views are relating to the father. But I do think, as I said a short time ago, that the more correct approach is for this Court to appoint an Independent Children's Lawyer and then hear from that lawyer on the first and subsequent applications. The first application being whether the matter should proceed on an ex parte basis.
Having heard from the ICL and once again from counsel on behalf of the mother, if the Court is satisfied that the Court should proceed on an ex parte basis then I would proceed to determine the application on that day. If the Court were not satisfied that the matter should proceed on an ex parte basis – orders would be made for the service of the application and a quick return date for the hearing. In terms of the appointment of an ICL, therefore, I consider that it is appropriate, I consider that it is necessary given the exceptional nature of the case, namely the desire to proceed ex parte, and I note that in fact counsel has not been able to take me to any authority where there has been permission to proceed or leave to proceed ex parte in such an application.
When the matter comes back to Court with the ICL present the Court will consider, firstly the application as to whether or not the matter should proceed ex parte, also what has basically been an oral application today for the child to be present during the hearing. Now, that can be easily attended to if I decide on the next occasion the matter should proceed ex parte, and I proceed to determine it, then the child can easily be included in a telephone-link to hear the proceedings – to be present as it were.
The Court will issue an order appointing the ICL. The Court will also make a notation requesting that the relevant authority appoint an Independent Children's Lawyer on an urgent basis and that they be ready to attend the Court urgently, and I think I better include in the notations – which matters are to be determined and in what order.
Until I can hear the application to proceed ex parte I will make an order now that these proceedings have been conducted in Closed Court.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 7 May 2021
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