Re: Ash
[2023] FedCFamC1F 1058
•11 December 2023
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 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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J
This is an Application in a Proceeding by Parent C (“the applicant”) to be permitted to file evidence other than single expert evidence in the proceedings.
The respondent to the application is Parent B (“the respondent”). The respondent opposes the application.
The Independent Children’s Lawyer (“ICL”) acknowledged the importance of the Court having access to expert evidence, including from additional sources, subject to some caveats.
The proceedings concern parenting orders for the children of the parties: Ash Tyler born 2008 (also known as Casey) and Lee Tyler born 2010 (also known as Bailey) (collectively “the children”). The parents are at issue about with which parent the children should live and the question of what medical treatment, if any, Ash should receive.
The respondent relies, in the substantive proceedings, on the following reports:
(a)Affidavit of Dr G, medical specialist, filed 4 December 2023; and
(b)Affidavit of Dr H, child and adolescent psychiatrist, filed 3 October 2023.
During case management, I raised with the parties obtaining a single expert witness to provide the Court with expert evidence at the hearing of this matter.
The ICL informed the Court that inquiries had been made of relevantly qualified experts in the context that neither parent had the necessary funds to meet the costs of a single expert. The ICL was able to locate one appropriately qualified expert who would have been prepared to prepare the report at the rate which would have been approved (and paid) by Legal Aid NSW. However, that person was not in a position to offer interviews until well into the second half of 2024.
In those circumstances I made inquiries about the availability of a Court Child Expert to prepare a Family Report. On 20 November 2023 I made an order for a Family Report.
A family report writer will not be able to address all of the relevant matters about which expert evidence might be filed in this case.
The respondent proposes to rely on the evidence of the child’s treating practitioners – as set out above. The applicant seeks to file additional adversarial expert evidence which it is foreshadowed may provide a contradictor to the evidence of the applicant.
There are 3 proposed experts:
(1)Dr D, psychiatrist;
(2)Dr E, paediatrician; and
(3)Dr F, psychologist.
As I understand the material, it is proposed that all of those experts would have access to documents but Dr F would meet with the child, Ash.
Ordinarily, the Court is cautious not to subject children to multiple interviews or assessments. In some cases it will be appropriate for there to be additional information available to the Court to assist the process of making a best interests determination. I acknowledge, as the respondent submitted, that the children will be meeting with a family report writer. I accept that a family report writer is well placed to comment on complex family dynamics. I accept that the family report writer is, in all likelihood, less well-equipped to address questions of Gillick competence.
I am conscious of the operation r 7.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) which seeks to restrict expert evidence to that which is necessary to resolve or determine a proceeding but also provides that further expert evidence will be permitted if necessary in the interests of justice.
Here, the parties were not able, for reasons of time, to access a single expert report. Consequently, the applicant is seeking permission in accordance with the provisions of r 7.11 the Rules to adduce expert evidence by the abovenamed persons.
I am satisfied that all three witnesses are qualified in their respective fields. I am satisfied that the hearing will not be delayed by reports from these witnesses. They indicated a capacity to produce reports in about one month.
I am satisfied that the issues in this case are complex and the potential outcomes for the children are particularly important in the short, medium and long term.
I am cautious about the appointment of experts who have not seen the subject children. There are perils involved in reliance upon opinions which are not informed by first-hand information: see Re W and W: Abuse allegations; Expert Evidence (2001) FLC 93-085. In due course, this is likely to be a matter which will impact on the weight that can be attached to the expert opinion.
During the hearing, the respondent’s advocate confirmed that the treating practitioners, Dr H and Dr G adopt a treatment model which is variously referred to as “gender affirming care” or “gender affirming treatment”. The applicant seeks to place before the Court expert opinion which posits alternate treatment pathways. The ICL accepts that the applicant should be permitted to file expert evidence by appropriately qualified persons in his case which recognises the availability of other options for the medical treatment of the parties’ children.
In opposing the application, the respondent’s advocate raised a potential (psychological) risk to the child, Ash, in being required to meet with an expert who does not adhere to the “gender affirming care” model. Specifically, I was taken to Dr F’s work in which she discusses the expression “social contagion” in the context of an increase in the incidence of identified gender dysphoria. The submission was to the effect that it is possible Ash would find Dr F’s approach hurtful or otherwise psychologically damaging. I accept that it is possible that Ash may find engagement with Dr F confronting. The ICL submitted that Ash was prepared to undertake such a meeting as being “part of the process”. That attitude is commendable and pragmatic. I accept that the process may still be confronting. I am not convinced it is likely to be psychologically damaging. These are important life changing issues which require analysis, discussion, evaluation, re-evaluation and assessment. The issues are, by their very nature, confronting, comp2 and difficult. Accordingly, provided the persons are appropriately qualified (which is conceded), I am satisfied that the further reports are appropriate.
The ICL indicated that Ash would ideally like to meet face to face and in proximity to home. I have no information about whether that is possible and will only note that the applicant’s lawyers should canvass those issues with Dr F.
The additional further witnesses, Dr D and Dr E, are to be briefed to express an expert opinion on the papers.
The ICL raised concerns about the proposed evidence sought by way of the draft letters of instruction. In particular the possibility for evidence which was:
(a)Repetitive – and perhaps for that reason, unnecessary;
(b)Outside of expertise – and for that reason, inadmissible;
(c)Inattentive to the requirements of the Rules because of the failure to include reference to Divs 7.1.4, 7.1.5 and 7.1.6 as required by r 7.13(2) of the Rules; and
(d)General in nature – and for that reason, not relevant.
I accept each of these issues arise. The approach I intend to take is not to, in effect, endorse the letters of instruction which have been prepared but to give the applicant the opportunity to take on board the ICL’s submissions and reframe the letters to provide the best opportunity to provide the Court with evidence which is tailored to these children and this dispute. A failure to approach the instruction of the experts with a view to providing the best evidence will ultimately impact on the case which the applicant is able to present at trial.
Case management
I am listing the matter for hearing for four (4) days commencing 4 March 2024. I accept it is possible it will take longer but it requires listing.
I will direct that all expert evidence be filed by 25 January 2024.
I will direct that the experts confer pursuant to r 7.31 of the Rules by 9 February 2024 and prepare a joint statement by 23 February 2024.
I will list the matter for case management at 9.00 am on 27 February 2024, at which time I anticipate the Family Report will also have been released.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 11 December 2023
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