Re: Addison (No. 3)
[2021] FamCA 232
•22 April 2021
FAMILY COURT OF AUSTRALIA
Re: Addison (No. 3) [2021] FamCA 232
File number(s): File number has been suppressed Judgment of: HOWARD J Date of judgment: 22 April 2021 Catchwords: FAMILY LAW – MEDICAL PROCEDURES – Application for stage 2 treatment for gender dysphoria – where the mother has applied to proceed on an ex parte basis – where the father has not been named as a party to the proceedings – where there are allegations of family violence – application to proceed ex parte dismissed – where the Court ordered that the father be joined as a Respondent and further ordered that the father be served with the application Legislation: Family Law Act 1975 (Cth) ss 61C, 67ZC, 68LA
Family Law Rules 2004 (Cth) rr 1.12, 4.08, 7.04
Cases cited: Re Shane (Gender Dysphoria) [2013] FamCA 864;
Re Jordan [2015] FamCA 175
Re Lucas [2016] FamCA 1129
Re Mackenzie [2016] FamCA 610
In the Marriage of Sieling (1979) 24 ALR 357
In the Marriage of Kennedy (1993) 17 Fam LR 324
Re Lucy (Gender Dysphoria) (2013) 49 Fam LR 540
Ansah v Ansah [1977] 2 All ER 638
International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319
Re Imogen(No. 6) (2020) 61 Fam LR 344
Number of paragraphs: 59 Date of last submission/s: 20 April 2021 Date of hearing: 20 April 2021 Representation: The names of legal practitioners have been suppressed ORDERS
THE MOTHER
Applicant
AND: INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
22 APRIL 2021
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the Application to dispense with Rule 4.08(2) of the Family Law Rules 2004 (Cth) is dismissed.
2.That the father be joined in these proceedings as the Respondent.
3.That the Application to proceed ex parte is dismissed.
4.That the Amended Initiating Application and the Affidavits of the mother (redacted in accordance with the Reasons for Judgment delivered 22 April 2021) be served on the father along with a written notice from the mother’s solicitors in accordance with the Reasons for Judgment delivered 22 April 2021.
5.That the Applicant mother and the Independent Children’s Lawyer provide to the Court draft further orders or directions consistent with the Reasons for Judgment and also provide to the Court a draft order in appropriate terms to protect the identity of the child, the mother, the child’s family and the State or Territory in which the child lives within two (2) business days.
IT IS NOTED:
A.That the provisions of section 121 of the Family Law Act 1975 apply and restrict the publication of these Reasons and Orders and any aspect of these proceedings
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).
REASONS FOR JUDGMENT
HOWARD J:
This matter first came before the Court on 13 April 2021. It relates to one child, (now known as Addison). Addison was born in 2004. The initiating application was filed in the Family Court of Australia on 29 March 2021.
Addison was born as a female but identifies now as a male and Addison prefers to use male pronouns. Addison has been diagnosed with gender dysphoria. The application before the Court is for an order from the Court permitting stage 2 treatment for Addison’s gender dysphoria. The irreversible nature of the stage 2 treatment proposed is noted in the evidence and has been referred to in many of the previous cases decided by this Court in relation to similar medical procedures.
When the matter came before the Court on 13 April 2021, the applicant mother was represented by a firm of solicitors. Counsel appeared on behalf of the applicant mother. On 13 April 2021, I delivered ex tempore reasons for judgment and made an order appointing an Independent Children’s Lawyer (“ICL”). I also made various orders and notations for the further conduct of the matter to take place on Tuesday 20 April 2021. The orders and notations made on 13 April 2021 are as follows:-
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the child … (now known as Addison) born … 2004 be represented in these proceedings and it is requested that … 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 at ….
2.That this matter be adjourned for further hearing commencing at 10:00am on 20 April 2021 in the Family Court of Australia at ….
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 … 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.
The matter returned to Court on 20 April 2021. On that occasion, counsel appeared on behalf of the applicant mother instructed by a firm of solicitors. Counsel appeared on behalf of the Independent Children’s Lawyer. The ICL briefed counsel to appear in Court on 20 April 2021.
When the matter commenced on 20 April 2021, Counsel for the ICL made an application for Addison to be present during the hearing of the application for an order that the matter proceed ex parte. I heard the submissions on behalf of the ICL and I heard the submissions on behalf of the mother. Both the ICL and the mother agreed that Addison’s maturity along with Addison’s stable mental health were such that Addison should be permitted to be present during the Court hearing. I was persuaded by the arguments put forward by both counsel, and I made an order permitting Addison to be present during the hearing of the application that the matter proceed ex parte. I delivered ex tempore reasons for judgment in relation to Addison’s attendance at Court for the hearing of that application.
In relation to the application – essentially brought by the mother – to proceed ex parte, I note that in the amended initiating application filed 12 April 2021 under the heading, “Interim or procedural orders sought” the mother has sought the following order –
That this application be heard and determined on an ex parte basis.”
That order was not sought when the initiating application was originally filed on 29 March 2021.
SHOULD RULE 4.08(2) OF THE FAMILY LAW RULES 2004 BE DISPENSED WITH?
In the Court heading of the initiating application and the other Court documents prepared by and on behalf of the mother, at no time has the mother included the father as a respondent to the proceedings. It seems to me that the question of whether or not the matter should proceed on an ex parte basis is a different question from whether or not the father should actually be joined as a respondent to the application as required by rule 4.08 of the Family Law Rules2004 (Cth) – although many of the considerations apply to both of those aspects.
Rule 4.08 of the Rules relates to medical procedures and provides as follows:-
4.08 Application for medical procedure
(1) Any of the following persons may make a Medical Procedure Application in relation to a child:
(a) a parent of the child;
(b) a person who has a parenting order in relation to the child;
(c) the child;
(d) the independent children’s lawyer;
(e) any other person concerned with the care, welfare and development of the child.
(2) If a person mentioned in paragraph (1)(a) or (b) is not an applicant, the person must be named as a respondent to the application.
It is apparent from rule 4.08 that the mother has the standing to bring the application on behalf of the child, but it is also apparent that the father “must be named as a respondent to the application” be named as a respondent to the application (rule 4.08(2)).
The ICL made a submission that the father could indeed be included as a named respondent – in accordance with rule 4.08(2). At no time has there ever been any specific order sought (in a filed application) seeking a dispensation of the need to comply with rule 4.08(2). This Court does, of course, have the power to dispense with the Rules. In this regard, I note rule 1.12 of the Family Law Rules 2004 (Cth). At the hearing on 20 April 2021, counsel for the mother did, at one stage, seek that the Court dispense with the need for the mother to comply with Rule 4.08(2). For the reasons which follow that application is dismissed.
As I said in the reasons for judgment delivered 13 April 2021, this is an unusual case. It is unusual because the father is not a named party to the proceedings. Neither Counsel on behalf of the ICL nor Counsel on behalf of the mother were able to cite one authority to support the proposition that a medical procedure application could be made by one parent alone without the inclusion of the other parent as a party to the proceedings.
Indeed, in many of the reported decisions, including Re Shane (Gender Dysphoria) [2013] FamCA 864, (Murphy J); Re Jordan [2015] FamCA 175 (Kent J); and Re Lucas [2016] FamCA 1129 (Tree J) – there was unanimous agreement amongst the medical experts, the parents of the child, and the child concerned in relation to the proposed treatment for gender dysphoria.
In a decision of Tree J called Re Mackenzie [2016] FamCA 610, the Court stated in paragraph 1 of the decision:-
This is an application for Court authorisation for Mackenzie to undergo irreversible stage 2 treatment for his gender dysphoria. The applicant is his mother. The father is the named respondent, however he has not been involved in any way with Mackenzie for many years now, and his whereabouts are unknown, even to the paternal grandparents.
In Re Mackenzie the judgment makes it plain that the father was a “named respondent”. That is not what has occurred here. As Murphy J noted in Re Shane (and previously in Re Lucy (Gender Dysphoria) (2013) 49 Fam LR 540) – section 67ZC of the Family Law Act 1975 (Cth) (‘the Act’):-
does not, in and of itself, confer jurisdiction upon the court to make the order sought in the instant application. In order to validly exercise the jurisdiction contained within section 67ZC, that section must “attach” to a “matter” contained in Part VII of the Act. Given the applicants in this case are Shane’s parents and Shane is a child of the marriage, the power provided for in section 67ZC can “attach” to the jurisdiction conferred upon the court in Part VII in respect of parental responsibility. Consequently, section 67ZC provides jurisdiction in this case to make the order sought by Shane’s parents. [1]
[1] Note paragraph 6 of Re Shane
In the present case, Addison is the child of the applicant mother and the father. By operation of section 61C of the Act –“Each of the parents of a child who is not 18 has parental responsibility for the child” (Section 61C(1)). There is no other Court order that affects the attribution of parental responsibility for this child.
Both parents have parental responsibility for Addison. At the outset – it seems to me that the father must be named as a respondent to this application. There are allegations made by the mother and the child against the father in respect of family violence. I will return to those allegations shortly. There is evidence from Dr B in an affidavit filed 9 April 2021. In that affidavit, Dr B (the psychiatrist who is the clinical director of the gender clinic) states that, in his opinion, the involvement of Addison’s father in the proceedings could be both traumatic and potentially detrimental to Addison’s mental health both in the short and long term and could possibly further irreparably damage Addison’s relationship with the father. I drew attention to this evidence in the reasons for judgment delivered on 13 April 202. The evidence is contained in paragraph 3 of the affidavit of Dr B filed 9 April 2021. I do think that rule 4.08(2) has been framed in mandatory terms for good reason. An applicant in the position of the mother in the current case “must” name the father as a respondent to the application. I am not satisfied by the arguments put forward on behalf of the mother to avoid the naming of the father as a respondent to the application. The fact that there are allegations of family violence against the father is not a good enough reason to dispense with the joinder of the father as a respondent. The fact that there could be potentially some detrimental impact on Addison is not a sufficient reason to dispense with Rule 4.08(2). A medical procedure of the kind contemplated is a significant step which will (according to Dr B) have irreversible consequences for the child. This family’s troubled history (which I will expand on further) is not a sufficient reason to exclude the father as a named respondent.
THE APPLICATION TO PROCEED EX PARTE
The next question is whether or not the application must be served upon the Father. The rules require service of initiating process on the respondent to the proceedings (rule 7.04). The Court does have the power to dispense with service and grant, as is sought here, an order that the matter proceed ex parte. In the decision of Re Makenzie – Tree J used the words – in relation to the Father in that case – that, “his whereabouts are unknown, even to the paternal grandparents.” Some effort must have been made by the Applicant mother in Re Makenzie to contact the paternal grandparents and try to find or locate the Respondent Father in that case. I am not satisfied that any serious attempts have been made by the Applicant mother in this case to locate the father. To be fair to the mother, the mother has not taken serious steps to locate the father because her primary argument in this regard is that the father ought not be given notice of the application.
On the morning of 20 April 2021, the mother’s solicitor, filed an affidavit and set out information that the mother had conveyed to her solicitor. That information was subsequently included in an affidavit sworn by the mother later in the day on 20 April 2021. The Court gave leave for the mother to read and file the affidavit.
I note the contents of that most recent affidavit relate to the mother’s knowledge of the whereabouts of the father of the child. That affidavit from the mother states:-
1. The last known address I have for the father is the house that we shared prior to the Protection Order being made [in] 2017. That address was at [Suburb D].
2. the father was removed from this property by the Police after the Protection Order was made. I have had no direct contact with the father since that time.
3. the father and I rented the house in [Suburb D]. I ended the rental agreement a few weeks after the Protection Order was made.
4. I saw the father passing by my home in the months following the making of the Protection Order, but we did not speak.
5. I received a delivery of flowers from the father for my birthday in 2018. reported this to police as a breach of the Protection Order.
6. I have not had any contact at all from the father since April 2018.
7. I believe that the father was working in retail at [Suburb F] towards the end of our relationship, and was again working there at the time of one of the Court appearances relating to the Protection Order.
8. In the 14 years that I was with the father, the father rarely spoke of his family and I only met one of his family members on a single occasion. That was a single day visit from his brother.
9. I have no contact details of the father's family. At the time we were together, the father's siblings, mother and step-father lived [interstate] and, as far as I am aware, the father had no contact with his father.
10. I have searched Facebook, including the friend lists of one of my contacts who I recall knew the father. I conducted this search most recently a few weeks ago in preparation for this hearing. I have not been able to find any profile that appears to be his.
11. I have also tried looking up the father's sister (whom I recalled was called [Ms G]) on Facebook, most recently a few weeks ago in preparation for this hearing. I have been unable to find any profile that appears to be hers.
12. I replaced my mobile phone after I separated from the father and did not retain the father's mobile phone number. I cannot now recall his mobile phone number.
13. the father had an email address while we were together. I no longer have his email address and cannot recall it.
14. I have no mutual friends with the father.
15. I have had no updates on the father since we separated and have no idea of where he lives or works.
16. the father has never paid child support, and I never asked him to.
In every case of this kind to which my attention has been drawn, both parents have been parties to the proceedings and in every case (except one) both parents have had an opportunity to be heard. As I have already indicated, in most cases both parents have supported the making of the order for stage 2 treatment. In the Re Mackenzie decision the view that I have formed – gleaned from the brief reasons for judgment provided – was to the effect that some reasonable steps must have been taken to try to locate the respondent father. At the very least, the paternal grandparents were located and the paternal grandparents advised that they did not know the father’s whereabouts.
It is highly unusual to seek a final order from the Court in a proceeding under the Family Law Act 1975 (Cth) without giving any notice of the application to one of the parents of the relevant child. It is even more unusual to seek to proceed in this manner in a medical procedure case of this kind.
In Ansah v Ansah [1977] 2 All ER 638 the Court of Appeal in England stated (in relation to a case in the family jurisdiction):-
Orders made ex parte are anomalies in our system of justice which generally demands service or notice of the proposed proceedings on the opposite party (see Craig v Kanseen ([1943] 1 All ER 108 at 113, [1943] 1 KB 256 at 262)). Nonetheless, the power of the court to intervene immediately and without notice in proper cases is essential to the administration of justice. But this power must be used with great caution and only in circumstances in which it is really necessary to act immediately.
I note the decision of the Full Court of the Family Court In the Marriage of Sieling (1979) 24 ALR 357. In Sieling, Evatt CJ and Marshall SJ relied upon the English decision of Ansah. The Court stated at page 359, inter-alia:-
Whenever a court acts ex parte it is departing from one of the primary rules of natural justice, that each party should be given an opportunity to present his or her case to the court. (See The Commissioner of Police (1979) 24 ALR 357 at 360 v Tanos (1957–58) 98 CLR 383, 395–396 ; Lonard [1976] FLC 90-066336 at 75 ; 2 Fam LR 11,116 at 11,124 ). For this reason, an ex parte order should be made only where there is a real and urgent need to protect a person or to preserve property and it should remain in force only until both parties can come before the court.
In a decision entitled In the Marriage of Kennedy (1993) 17 Fam LR 324 at 326, Baker J stated, inter alia:
An ex parte order, in my view, should not be made except in extreme circumstances and only if the physical, sexual and emotional welfare of children is at risk.
I do not consider that there are “extreme circumstances” in the case before the Court.
More recently, the High Court of Australia in International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 discussed at paragraph 54, per French CJ – ex parte applications for interlocutory relief and the notion of procedural fairness. The Chief Justice stated at paragraph 54, inter-alia:-
[54] Procedural fairness or natural justice lies at the heart of the judicial function. In the federal constitutional context, it is an incident of the judicial power exercised pursuant to Ch III of the Constitution. It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it. According to the circumstances, the content of the requirements of procedural fairness may vary. When an ex parte application for interlocutory relief is made the court, in the ordinary course, has a discretion whether or not to hear the application without notice to the party to be affected. In exercising that discretion it will have regard to the legitimate interests of the moving party which have to be protected, whether there is likely to be irrevocable damage to the interests of the affected party if the order is made, and what provision can be made for the affected party to be heard to have the order discharged or varied after it has been made.
In the cases of Sieling and Kennedy, and in the other cases cited about – the Court in each instance was considering interlocutory applications only. That is, applications for interim orders as opposed to final orders. There is a significant difference between a party coming to the Family Court of Australia seeking an urgent ex parte interim order as opposed to a party coming to the Court and seeking an ex parte final order.
Counsel on behalf of the Independent Children's Lawyer and counsel for the mother both referred the Court to the evidence of family violence. Both counsel submitted that the evidence of family violence was one reason why the Court should grant an order permitting the applicant to proceed ex parte. I do note that when the matter commenced in Court on 20 April 2021, counsel for the ICL handed to the Court a series of alternative orders. The alternative orders sought by the ICL (at the outset of the hearing) related to service of the application upon the father and methods of service. During the course of the hearing, the ICL seemed to abandon the alternative position – because, it was said, attempts had been made to find the father – but those attempts were unsuccessful. I will return to that point later in these reasons. But in relation to family violence – I note the mother's affidavit filed 29 March 2021 and the following evidence of family violence:-
27. Addison's father rarely, if ever, helped in taking care of Addison.
28. The father barely ever interacted with Addison and any times he did interact with him it had a bad outcome for Addison and so I did my best to keep their interactions to a minimum.
29. The father wanted Addison to be the 'perfect daughter'. He pushed him to be involved in girls' sports (swimming and running) and to play a musical instrument.
30. The father frequently abused alcohol and watched porn around Addison which I believe has impacted his development.
31. The father was physically, mentally, socially and emotionally abusive to me and Addison. There was significant domestic violence in our relationship.
32. I took out a DVO against Addison's father in 2016. It will expire when Addison is 18 years old in 2022.
33. To enforce the DVO, Police had to remove the father from the place we were staying.
34. Shortly after the restraining order was put in place, the father violated the DVO and frequently scared both Addison and I, showing that he didn't care how Addison or I felt and only cared about himself. He has not violated the order since then.
35. Addison did not come out until after we had left his father, and I believe that living with his father stopped him from being the person that he really was.
36. I strongly believe that Addison's father should not be involved in any of his treatment decisions as he does not have Addison's best interests in mind.
37. I believe that Addison's father would not be supportive of Addison transitioning to be male.
38. I do not believe that the father is aware of our current whereabouts and I would be concerned for our safety if he became aware of where we lived
The mother has not been specific in that affidavit concerning the precise nature of the allegations of physical, mental, social and emotional abuse towards her and towards Addison. That is, say – it is unclear what the mother alleges was the family violence perpetrated against her as opposed to what the mother alleges was the family violence perpetrated against Addison.
In the mother's more recent affidavit filed 12 April 2021, the mother provided further evidence of family violence which she says was perpetrated by the father. In the more recent affidavit, the mother states:-
1. I met Addison's father (the father) in 2003, and had Addison with him in 2004. At the time I did not want a child with him but he would not stop bothering me until I did. His mental health started to deteriorate and I broke up with him in 2016.
2. Addison's father never took part in any care (house care and childcare) for Addison, and frequently verbally abused Addison by calling him homophobic slurs, calling him stupid and worthless. He also knowingly took him to party's with drugs and did drugs in front of him (I did not know of this at the time). He forced Addison into traditionally feminine hobbies, activities and social events including swimming, ballet, other dances, music, art. He prevented Addison and I from going outside or to a park without his permission, and would not let Addison do anything that Addison wanted to do. He would not let me make any major decisions about what was best for Addison as the father only wanted Addison to be his perfect 'daughter' (straight, cisgender, A+ student).
3. The father repeatedly got us into debt by spending more money than we earned and not working. In 2008 (when Addison was 4) we were homeless for about 8 months due to his addiction to spending money on drugs and gambling. After we got out of debt, the father would make us move to a new location so that Addison could not have friends or make social connections.
4. I broke up with the father in late 2016. When I told Addison this he seemed very happy about it as he had no connection to his father. We later found out that the day that I broke up with the father he stole a few hundred dollars from Addison.
5. I allowed the father to stay in the home with us for a short period of time later in 2016 as I pitied him. During this time he began threatening to kill himself and others. Shortly after that Addison and I went to the police station to file a restraining order.
6. As the restraining order prevented the father from contacting us he tried to hack into our mobile accounts and due to him having our passwords he was able to for a short period of time. He changed passwords on our devices and to certain websites and also locked Addison out of a few hundred dollars worth of internet games by changing the account name. Addison helped me change all passwords, we moved house and Addison moved schools so that the father would not know where we lived. However, it did not work as, in 2017 I saw the father around our house sometimes. He later stopped as I contacted police about him violating the restraining order.
7. After breaking up with the father we lived in Suburb D where Addison made his first friend and began to tell me about him questioning his gender. Eventually Addison and I moved up to Town H with [with a relative]. Addison was sexually abused by [the relative] and this was reported to the police and has an ongoing investigation.
8. Addison saw [Ms J] (Psychologist) as well as [Dr K] at [L Services] and began dealing with his Complex Post Traumatic Stress Disorder (caused by Addison [being sexually assaulted] and his childhood trauma from the father). It was during this time that Addison socially transitioned and began seeking Testosterone with the gender clinic.
9. The father does not know that Addison has changed his name, his pronouns, identifies as male, was [sexually assaulted] or that he is gay as he has not had any contact with us after the restraining order was filed. The father was never told where we lived or are currently living and all court documents do not have our address anywhere that he can access them.
10. I am concerned about the father becoming aware of this information. This information is very private to Addison and I think it should be up to him who he tells. I am also concerned that the sharing of this information with the father would make Addison anxious and exacerbate his already bad PTSD.
11. Addison has told me that he feels that the father would go out of his way to harm him (psychological and potentially physically) if he knew that Addison was transgender. I do believe that this may be true as the father repeatedly tried things to prevent Addison being gay or anything other than the 'perfect daughter' by forcing him into traditionally feminine hobbies (eg; music, swimming, art, dance etc) and by yelling at him for having male friends or showing interest in sport.
12. I know that the father would object to Addison getting a name change, change of gender on his birth certificate and Addison getting testosterone because of his expressed homophobia and transphobia. Addison believes that if the father was to know about this, when the restraining order expired, he would harass him and attempt to prevent him from transitioning not because of a fear for Addison's long term health but because of his own views.
My attention was also drawn to Dr B’s first affidavit filed 6 April 2021. In particular, the following evidence:-
51. Addison described that as a result of his past sexual abuse from [a relative] that he has advised [M] not to approach him from behind to touch Addison physically as this reminds him of past sexual abuse by his [relative] and the "creepy" lascivious behaviour that he experienced with his biological father. In my meeting with Addison on 12 November 2020 he alleged that the father would invite Addison as a younger child to watch pornography in the father's bedroom.
52. During the interview on 12 November 2020, Addison demonstrated a maturity that in my opinion can be explained by his need to parent and raise himself as essentially an only child with a mother with protracted mental health issues and an abusive and dominant father who no longer has contact with Addison following a DVO. Addison is self-driven and determined with his interests in writing, online research in his topic of interests such as medical and surgical transitioning for gender diversity and video games as a socially reclusive transgender adolescent male with family challenges and gender dysphoria.
53. Addison is a 16-year-old assigned female at birth identifying male using he/him pronouns. Addison resides with his mother, and has no contact with his father who Addison alleges was verbally and physically abusive towards him including threats to kill. There is a current DVO in place preventing the father having contact with Addison and the mother until Addison's 18th birthday. The family are isolated as they relocated to [Town H] away from the father. While living with [a relative] Addison alleges, he was sexually abused by [the relative] on three occasions. The [relative] is said to have bipolar mood disorder. The mother has two adult children who live [interstate] and there is limited contact with them. The mother was diagnosed with a mental illness at age 34 years of age, however reports to have mental health concerns from the age of 14 years of age. She reports now to have a good medication regime and is “stable”. There is a strong history of mental health issues within the maternal family and substance misuse issues within the paternal family.
I was concerned that paragraph 53 of Dr B's affidavit was not altogether clear as to precisely what had been told to Dr B by Addison. In the second sentence of paragraph 53, Dr B states:
Addison resides with his mother, and has no contact with his father who Addison alleges was verbally and physically abusive towards him including threats to kill.
That sentence, it turns out, is misleading. One is left with the impression (upon reading that sentence) that the father had threatened to kill the child. This is especially so because of the juxtaposition of the words “including threats to kill” immediately after the reporting of Addison's allegations that the father was verbally and physically abusive towards him. During the course of the hearing I specifically asked Counsel for the ICL to take instructions on this point. I appreciate that this information recounted to the Court by counsel is not evidence, but it is information which provides some clarity in respect of the evidence. It amounts to a concession by the ICL. To this extent, the concession made by the ICL was that there had not been a threat by the father to kill Addison. It seems that the mother might have told Addison that the father had threatened to kill her (the mother). But the ICL concedes that Addison did not hear that threat. I note that, in addition to that amounting to a concession made by counsel on behalf of the ICL – the ICL is permitted (pursuant to section 68LA(7) of the Act) to disclose to the Court any information that the child communicates to the ICL if the ICL considers the disclosure to be in the best interests of the child. Clarifying the situation in relation to such an important point is, in my view, in the best interests of the child.
Further, in addition, Counsel on behalf of the mother told the Court that the mother recalls that the father threatened to kill her – but he did not threaten to kill Addison. There was a further threat made by the father against someone else – someone random at the local service station. It was also conceded by counsel on behalf of the mother that the threat to kill her occurred in the context of a fight between the parents – at the end of their relationship. If such a threat was made by the father – that is extremely serious. The father has not had a chance to respond to that allegation. Nevertheless, steps can be taken in relation to the hearing of this matter – that would serve to eliminate or significantly reduce any risk to the mother or the child. Such a measure could include a requirement that the father (should he wish to be heard in this matter) provide his evidence and submissions by video-link from a remote location.
I note that the father does not have knowledge of the child’s gender identity. The child did not come out to the mother until after the parents had separated.
I am aware that the mother does not want the father to know where she is living. I am aware that Addison does not want the father to know where Addison is living. Orders will be made to ensure that the father does not become aware of the place where either the mother or Addison are living.
I have referred to the somewhat misleading sentence contained in Dr B’s affidavit. I do note and I have taken into account that the child also told Dr B that he considered that his father had engaged in “creepy, lascivious behaviour”. On 12 November 2020, the child “alleged that the father would invite Addison, as a younger child, to watch pornography in the father’s bedroom”.
It is apparent from the evidence of the mother and from the evidence of Dr B that Addison suffered sexual abuse in the home of a relative. This is the place where the mother had taken the child to live (with her) after the mother separated from the father. My attention has not been drawn to any evidence as to whether or not the relative was charged with a criminal offence – although the mother does note that there is, apparently, an ongoing investigation in respect of the allegation. Reference is made in the material to the child suffering from post-traumatic stress disorder; although, the cause of the post-traumatic stress disorder is not altogether clear (I note the evidence of Dr N).
The fact that the mother in this case (and indeed the child) have both made allegations of family violence against the father are not, in my view, sufficient reasons to deprive the father of notice of the application. It is said, by Dr B in his affidavit filed 9 April 2021, that the father’s involvement in the proceedings will be both traumatic and potentially detrimental to Addison’s mental health. I have made reference to this evidence previously in these reasons and in the reasons on 13 April 2021. But I note the following in that regard. It is accepted by both the mother and by the ICL that Addison is very mature. Addison’s maturity was highlighted in paragraph 52 of the first affidavit of Dr B (filed 6 April 2021). Dr B noted that during the interview that he conducted on 12 November 2020:-
Addison demonstrated a maturity that in my opinion can be explained by his need to parent and raise himself as essentially an only child with a mother with protracted mental health issues and an abusive and dominant father who no longer has contact with Addison following a DVO.
I take this opinion from Dr B to mean that Addison is more mature – and perhaps even a good deal more mature – than the average 16 year old. Addison needed “to parent and raise himself”. This is quite extraordinary and it speaks volumes for Addison’s strength and maturity. In paragraph 48 of his affidavit filed 6 April 2021, Dr B noted Addison’s stability and stated:
48. Addison reports that he is more stable and currently has no suicidal thoughts with his engagement with the Gender clinic and his hope and expectation that he will receive gender-affirming hormone treatment in the immediate future and ongoing support and engagement with his mental health care providers at [L Services].
The child has been engaging with the gender clinic since mid-2019. That involvement has been the source of the child’s stability. It also seems that Addison’s engagement with the gender clinic and with L Services has led to the cessation of suicidal thoughts. I do note the evidence from the mother that the child had attempted suicide. In this respect, I note that in 2018 the mother says (paragraph 11 of her affidavit filed 29 March 201) that Addison “tried to commit suicide by taking pills”. There are no further details provided in that regard. The submission put forward on behalf of the ICL and on behalf of the mother to support the Court making an order for the child to be present at Court for the hearing of the application to proceed ex parte was framed around Addison’s maturity and, it was also framed around a submission on behalf of the ICL and the mother which, essentially, relied upon the evidence that Addison’s mental health is stable.
In this regard I specifically note that, prior to making the decision to permit Addison’s attendance at the Court for the hearing, I specifically asked counsel for the ICL as to whether or not Addison was mature enough and stable enough to listen to argument in relation to the possible service of the proceedings upon his father. The submission made on behalf of the ICL was to the effect that Addison was, indeed, mature enough and well enough to listen in to the proceedings.
The Court relied not only on the evidence of Dr B (paragraph 48 and 52 of his first affidavit) but also upon the submissions and the urging made by both counsel to permit Addison’s attendance at the Court. Addison’s attendance at the Court, of course, took the form of Addison listening in from his mother’s home to the Court proceeding once the Court made the order granting permission for Addison’s attendance. His mother was also present with him.
It seems clear enough from the evidence that Addison has a strained relationship with his father. They are estranged. Addison has not seen the father for 4-5 years. There are allegations of family violence made by both the mother and by Addison against the father. The father has not had a chance to be heard in relation to any of those allegations. That is to say – the father has not had a chance to respond to any of the allegations. They remain allegations at this point in time. They are not findings made by the Court. I note the existence of the Protection Order. That Protection Order will be included as exhibit one in these proceedings. The Protection Order was annexed to the initiating application.
I note that the respondent father was present in the Magistrates Court on 17 August 2017 when the Protection Order was made. The aggrieved person is the mother – and the child of the aggrieved – who was also protected by the order is named as “…” and is, of course, Addison. The order was made “without admissions”. In the family law jurisdiction such orders are very often brought to the attention of the Court. There are no details provided in relation to the content of the material that was before the Magistrates Court on the making of the Protection Order. I accept for present purposes that the Protection Order was sought and obtained by the Police. Indeed, the applicant is stated as Senior Constable P. The Protection Order remains in place until 17 August 2022, and the Court has been told the child intends renewing or extending the order beyond that date.
I understand that Addison does not like his father. I understand that Addison does not wish to tell his father that he identifies as a male. I understand that Addison does not want to tell his father about his gender dysphoria, and I understand that Addison would prefer it if the father was not given notice of the application.
I have, of course, read the evidence in relation to the main application – the seeking of an order for stage 2 treatment. The evidence is cogent and, it appears, strong.
But the main application is not for determination at this present moment. The matter for determination is whether or not the applicant mother should be permitted to proceed with the application without giving any notice to the father.
I note again the words used by the Full Court in the case of Sieling, that:
Whenever a court acts ex parte it is departing from one of the primary rules of natural justice, that each party should be given an opportunity to present his or her case to the court.
(Emphasis added)
It would be a grave step indeed for the Court to depart “from one of the primary rules of natural justice”. The father, even though he may be estranged from the child and the mother, remains a person who should be joined as a respondent in the proceedings and ought to be given notice of the proceedings. At the very least, more serious attempts must be made to try to locate the father or to provide notice to the father of the application itself.
It was submitted by the ICL and on behalf of the mother that it would not be in the best interests of the child for the Court to make an order requiring that the father be given notice of the application. Dr B speaks of the involvement of the father in the proceedings as being potentially detrimental to the child's mental health. But I do note that the child is currently receiving counselling and support and is considered mature, stable and well enough to be present in the Court. Furthermore, it is clear enough to me – especially from paragraph 52 of Dr B's first affidavit – that Addison is strong and is “self driven and determined”.
It is said that the father would not be supportive of Addison; it is said that the father is homophobic; it is said that the father urged the child (when the child was younger) to pursue a feminine outlook. It is said that the father engaged in family violence. All of these matters have been highlighted. All of these matters have been brought to the attention of the Court. Again, I note, the father has not had a chance to be heard in relation to these allegations. The father has not had an opportunity to be updated in relation to Addison's progress through life after 2016/2017 when the parties separated on a final basis.
What is sought by the mother here is an order pursuant to the Court’s parens patriae power (section 67ZC of the Act). In deciding whether to make an order under section 67ZC – the Court “must regard the best interests of the child as the paramount consideration.” Thus, the “best interests” principle (the paramountcy principle) – must be regarded by the Court when the Court is considering making an order under section 67ZC. Accepting (for present purposes only) that the Court should have regard to the child’s best interests when considering the application to proceed ex parte (which was a submission made on behalf the ICL) – what the Court would then need to do is to balance the child’s best interests in this case with “one of the primary rules of natural justice”. I consider that the child is strong enough, mature enough and stable enough for the Court to conclude that, in weighing all considerations in the balance, the father should be joined in the proceedings and more extensive attempts should be made to locate the father and serve him with the application. I will certainly consider making orders which would permit redaction of the material to ensure that the father does not know the whereabouts of the mother or the whereabouts of Addison. Redaction of the material should include the non-publication of the State or Territory in which the mother and the child are living.
It may even be the case that it is appropriate to make directions permitting, at the outset, service of the amended initiating application along with the affidavits of the mother and a covering letter explaining to the father that should he wish to file a response; should he wish to be heard and should he wish to be involved in the proceedings – then he will need to make available his address for service – and at that point in time, the more extensive evidence (including the medical evidence) can be provided to the father. That evidence can, as necessary, be redacted as well – but only insofar as to ensure the non-publication (even to the father) of State or Territory in which the child and the mother live. I will consider any other directions sought by the mother and/or the ICL in relation to these issues and related issues.
I would add that in the most recent authority in this area – Re Imogen (No.6) (2020) 61 Fam LR 344 – Watts J was considering a situation where the applicant father supported the 16-year-old child's desire to undergo stage 2 treatment for gender dysphoria. In the case of Re Imogen, the child was estranged from the mother. In Re Imogen, the child and the mother had not seen each other for approximately one year (or more) prior to the making of the application. The child and the mother had been involved in “an altercation… which involved violence…” (note paragraph 85 of Re Imogen). Further, I note that the child in Re Imogen did not want the mother to be given information or details in relation to her medical treatment. I do note that the mother in Re Imogen had been very interested and involved in the child’s life and welfare, but nonetheless – many of the factors raised by the mother and the ICL in the current case before the Court were present in Re Imogen. In Re Imogen, the mother was opposed to the making of the orders permitting stage 2 treatment – but the mother was still, of course, a respondent to the application.
I am well aware that this matter currently before the Court needs to be brought to a conclusion sooner rather than later. I noted in the reasons for judgment delivered 13 April 2021 that I am not sure why the matter was before the Supreme Court in 2020 when these types of applications are more commonly brought in the Family Court of Australia. It has not been made clear to the Court why that delay occurred.
In any event, the matter is now before the Family Court of Australia and this Court is dealing with the matter in an expeditious way. It may be that the circumstances reveal what was revealed in Re Mackenzie. Some more serious effort has to be made to try to locate the father and to serve him, and if his whereabouts cannot be ascertained, then the Court may, as in Re Mackenzie, need to proceed in the father's absence. But the father must be named as a respondent and attempts must be made to serve the father as required by the Family Law Rules 2004 (Cth). In that regard, the Court must balance what steps might be considered reasonable and how long those steps might take. The Court does keep in mind the fact that there is, indeed, some urgency to the matter.
The matter will be brought back before the Court on 28 April 2021 unless the parties notify the Court to the contrary. Prior to that time – if the mother or the ICL wish to seek any further direction from the Court the matter can be re-listed to be dealt with by telephone appearance on the giving of 2 days notice.
This is a significant medical procedure that is being sought by the mother on behalf of the child. There are significant irreversible aspects to the stage 2 treatment for gender dysphoria sought by the mother on behalf of the child. The child’s father should be given notice of the application and, at the very least, the child’s father should be given an opportunity to be heard by the Court.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 22 April 2021
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