FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Re: Ash [2023] FedCFamC1F 1058
File number: By court order the file number is suppressed Judgment of: CHRISTIE J Date of judgment: 11 December 2023 Catchwords: FAMILY LAW – APPLICATION FOR PERMISSION FOR EXPERT WITNESSES – Gender Dysphoria – Where the applicant seeks to file additional adversarial expert evidence which it is foreshadowed may provide a contradictor to the evidence of the applicant – Where obtaining the proposed expert evidence will not occasion delay – Where the issues in the proceedings are complex – Where there is no dispute as to the qualifications of the proposed experts – Application allowed – Orders as to case management. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Divs 7.1.4, 7.1.5, 7.1.6, rr 7.02, 7.11, 7.13, 7.31 Cases cited: Re W and W: Abuse allegations; Expert Evidence (2001) FLC 93-085; [2001] FamCA 216 Division: Division 1 First Instance Number of paragraphs: 28 Date of hearing: 11 December 2023 Legal representation: By court order the names of legal practitioners are suppressed ORDERS
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: PARENT C
Applicant
AND: PARENT B
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
11 DECEMBER 2023
THE COURT ORDERS THAT:
1.The applicant have leave to produce at trial evidence from:
(a)Dr D, psychiatrist;
(b)Dr E, paediatrician;
(c)Dr F, psychologist.
2.The applicant’s legal representatives are granted leave to provide copies of:
(a)Applications and responses;
(b)Affidavits of the parties and their witnesses; and
(c)Reports prepared for the purpose of these proceedings;
to the experts in Order 1.
3.Leave is granted to the applicant to provide the experts in Order 1 with subpoenaed material to which leave has been granted; on the basis that the experts shall undertake not to provide the material to any other person and destroy the material at the conclusion of their instructions in this matter.
4.In respect of the evidence of Dr F, the applicant shall be permitted to request Dr F provide an assessment and report in respect of the child, Ash Tyler, born 2008 (also known as Casey), with respect to the following:
(a)The child’s understanding of the diagnosis and proposed treatment, including, but not limited to any short and/or long-term effects, consequences, and side-effects or impacts;
(b)An assessment of risk to the child from having the treatment as proposed, or not having the treatment as proposed; and
(c)Any other matters considered relevant to the child’s psychological or physical health and best interests in the context of this application.
5.That the parties:
(a)Do all act and things to ensure the child’s attendance upon Dr F; and
(b)Do all act things and sign all documents required by Dr F to facilitate her completing the assessment and report including attending and communicating with her as directed.
6.Dr F is authorised to speak with any teacher, medical and or mental health practitioner with whom the child has previously engaged.
7.The Independent Children’s Lawyer…
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- Case
- [2023] FedCFamC1F 1058
- Decision Date
CaseChat Overview and Summary
The court found that the proposed experts were qualified and that obtaining their evidence would not cause any undue delay. The court also found that the issues in the proceedings were complex and warranted the inclusion of additional expert evidence. The court made orders allowing Parent C to present evidence from the three experts and setting out the procedures for the experts to follow. The court also made orders protecting the child's identity and ensuring that the experts were provided with all necessary information to complete their assessments and reports. The court listed the matter for a four-day final hearing in March 2024 and set out the timetable for filing and serving expert evidence.
Orders
Orders of the court
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
PARENT C
Applicant
AND:
PARENT B
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
11 DECEMBER 2023
THE COURT ORDERS THAT:
1. The applicant have leave to produce at trial evidence from:
(a) Dr D, psychiatrist;
(b) Dr E, paediatrician;
(c) Dr F, psychologist.
2. The applicant’s legal representatives are granted leave to provide copies of:
(a) Applications and responses;
(b) Affidavits of the parties and their witnesses; and
(c) Reports prepared for the purpose of these proceedings;
to the experts in Order 1.
3. Leave is granted to the applicant to provide the experts in Order 1 with subpoenaed material to which leave has been granted; on the basis that the experts shall undertake not to provide the material to any other person and destroy the material at the conclusion of their instructions in this matter.
4. In respect of the evidence of Dr F, the applicant shall be permitted to request Dr F provide an assessment and report in respect of the child, Ash Tyler, born 2008 (also known as Casey), with respect to the following:
(a) The child’s understanding of the diagnosis and proposed treatment, including, but not limited to any short and/or long-term effects, consequences, and side-effects or impacts;
(b) An assessment of risk to the child from having the treatment as proposed, or not having the treatment as proposed; and
(c) Any other matters considered relevant to the child’s psychological or physical health and best interests in the context of this application.
5. That the parties:
(a) Do all act and things to ensure the child’s attendance upon Dr F; and
(b) Do all act things and sign all documents required by Dr F to facilitate her completing the assessment and report including attending and communicating with her as directed.
6. Dr F is authorised to speak with any teacher, medical and or mental health practitioner with whom the child has previously engaged.
7. The Independent Children’s Lawyer may provide a copy of these orders to any medical or allied health practitioner required in order to facilitate Dr F’s assessment and report.
8. The cost of the assessment and report by Dr F (if any) is to be met by the applicant.
9. The matter is listed for final hearing for four days commencing 4 March 2024.
10. On or before 25 January 2024, each of the parties is to file and serve all expert evidence upon which they wish to rely, save for that of Dr F which is to be filed by 20 February 2024.
11. Pursuant to r 7.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the parties’ experts are to prepare a joint statement by 27 February 2024.
12. The full name of the child, Ash, his family members, his hospital, his medical practitioners, his school, this Court’s file number and any Court Child Expert, any expert the child attends upon for these proceedings, the state of Australia in which these proceedings were initiated, the name of Ash’s parents’ lawyers’, and any other fact or matter that may identify Ash, shall not be published in any way, and only anonymised Reasons for Judgment and orders (with cover sheets excluding the Registry, file number, and lawyer’s names and details, as well as the parties’ real names) shall be released by the Court to non-parties without further contrary order of this Court, with it being noted that each party shall be provided with one full copy of these orders with the relevant details included, to enable their execution and one cover sheet of the Reasons for Judgment that includes the file number and lawyers’ names.
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.
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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