Re: Addison - [2021] FamCA 253

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…

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 Re: Addison

Details

AGLC: Re: Addison [2021] FamCA 253
Case: [2021] FamCA 253
Decision Date: 13 April 2021

CaseChat Overview and Summary

In the matter of Re: Addison, the applicant mother sought orders for Stage 2 treatment of gender dysphoria for her child, Addison. The father was not a party to the proceedings and had not been served, leading the mother to seek to proceed on an ex parte basis. The proceedings came before Howard J in the Family Court of Australia.

The primary legal issues before the Court were whether an Independent Children’s Lawyer (ICL) should be appointed to represent the child and whether the proceedings should be conducted in a closed courtroom. The Court was also required to consider the mother's application to proceed ex parte and her ability to attend future hearings by telephone.

Howard J determined that it was in the child's best interests to be represented by an ICL, and directed that the Solicitor for the ICL arrange such representation. The Court also ordered that the proceedings be conducted in a closed courtroom pursuant to s 97(2) of the *Family Law Act 1975* (Cth) until further order. The mother was granted leave to file further written submissions and permitted to apply to attend the next hearing by telephone, subject to consulting the ICL on her position and informing the Court of the ICL's view.

The matter was adjourned for further hearing on 20 April 2021.

Orders

Orders of the court

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.

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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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

ORDER MADE BY:	HOWARD J
DATE OF ORDER:	13 APRIL 2021