Re: Ash (No 2)
[2023] FedCFamC1F 1059
•11 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Re: Ash (No 2) [2023] FedCFamC1F 1059
File number: By court order the file number is suppressed Judgment of: CHRISTIE J Date of judgment: 11 December 2023 Catchwords: FAMILY LAW – APPLICATION TO INTERVENE – Gender Dysphoria – Where the parties are in substantive proceedings regarding the parenting arrangements for the parties’ children and treatment for gender dysphoria – Where the evidence does not establish that the proposed intervenor has legal personhood – Where the proposed intervenor has no personal interest in the outcome and seeks the status of amicus curiae – Where it is not established that the proposed amicus curiae would provide the Court with evidence that is not otherwise available to the Court – Application dismissed. Legislation: Family Law Act 1975 (Cth) ss 68L, 68LA, 92 Cases cited: Re Imogen (No 6) (2020) 61 Fam LR 344
Re Jamie (2012) FLC 93-497
Division: Division 1 First Instance Number of paragraphs: 22 Date of hearing: Determined in chambers on the papers Legal representation: By court order the names of legal representatives are suppressed ORDERS
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: THE PROPOSED INTERVENOR
Applicant
AND: PARENT B
First Respondent
PARENT C
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
11 DECEMBER 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 20 November 2023 is dismissed.
2.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were initiated, the name of Ash’s parents’ lawyers’, and any other fact or matter that may identify Ash, shall not be published in any way, and only anonymised Reasons for Judgment and orders (with cover sheets excluding the Registry, file number, and lawyer’s names and details, as well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 (and the proposed intervenor, being the applicant in this application) 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
On 20 November 2023, an organisation titled Organisation J filed an Application in a Proceeding in this matter seeking leave to intervene. The first respondent to that application, Parent B filed a Response opposing the application for intervention. The second respondent, Parent C, filed a Response supporting the application for intervention. The Independent Children’s Lawyer (“ICL”) has, in response to directions which I made, filed submissions, which also seek that the Application in a Proceeding be dismissed.
The substantive parenting proceedings deal with where the parties’ children, Ash Tyler born 2008 (also known as Casey) and Lee Tyler born 2010 (also known as Bailey) (collectively “the children”) should live and with whom they should spend time but also, significantly, with the existence of diagnosis for the child, Ash, of gender dysphoria and the question of what treatment, if any, Ash should receive.
THE LAW
Section 92 of the Family Law Act 1975 (Cth) (“the Act”) governs applications for intervention by other persons and provides as follows:
(1) In proceedings (other than divorce or validity of marriage proceedings), any person may apply for leave to intervene in the proceedings, and the court may make an order entitling that person to intervene in the proceedings.
(1A)…
(2)An order under this section may be made upon such conditions as the court considers appropriate.
(3)Where a person intervenes in any proceedings by leave of the court the person shall, unless the court otherwise orders, be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party.
CONSIDERATION
The proposed intervenor sought the following orders:
1.On behalf of [Organisation J], [the proposed intervenor], seeks leave to intervene as amicus curiae in the proceedings of [Tyler] pursuant to Section 92(1) of the Family Law Act.
2.The facts relied on to support this application are set out in the attached affidavit of [Ms L] affirmed on 20 November 2023 as required by Rule 3.04 of the Family Law Rules 2021.
3.[Organisation J] seeks an order to be included in the proceedings on limited terms as provided for by Rule 3.04(4) and without the rights, duties and liabilities of a party.
The first issue which arises for consideration is identification of the party who seeks to be joined. The application itself says that it is “filed on behalf of [the proposed intervenor] for [Organisation J]”. the Proposed Intervenor is provided as the contact address for the lawyer for the applicant, however the application itself refers to both Organisation J and the proposed intervenor.
It is important to identify with precision the person or entity seeking to intervene in order to be able to accurately assess whether that person or entity has an interest likely to be affected by judgment. In the material filed in support of the application to intervene, the deponent of an affidavit, Ms L, solicitor, says that Organisation J is “a group of volunteer women from [around the world] who are responsible for [...] promoting [women’s gender based rights]”. The affidavit summarises article 9 of that Declaration as being concerned with recognition that “medical interventions aimed at the ‘gender reassignment’ of children by the use of puberty [blockers] hormones and surgery [are not in the] best interests of children…”
The submissions on behalf of Parent C question whether “[Organisation J]” is properly regarded as a person for the purpose of s 92 of the Act. The term “person” is not defined in the Act. The preliminary question for me is whether the entity has legal personhood. The best I can say in this case is that the applicant has not established to my satisfaction that it does. However, even if I am wrong in this conclusion, there are other factors which support the dismissal of the application.
From the affidavit evidence of Ms L, it is apparent that the intervenor seeks to intervene in the proceedings in order to advocate against the orders which are sought by one of the children’s parents.
It may be appropriate in a case where the Court did not have the assistance of an ICL and/or did not have the assistance of a contradictor to consider an application by a person or entity seeking to intervene to provide relevant information in a particular case.
That is not the position here. The proposed intervenor recognises that they have no personal interest in the outcome of the case and accordingly seeks the status of amicus curiae.
An amicus curiae appears with the Court’s leave as a friend of the Court in order to assist the Court with the task which is to be undertaken by it. In Re Jamie (2012) FLC 93-497 (“Re Jamie”), the Full Court of the Family Court of Australia (as it was then known) considered the application by the Australian Human Rights Commission to intervene in an appeal or, in the alternative, appear as amicus curiae. Intervention is usually granted where the person or entity has a sufficient legal interest in the outcome of the litigation such as to justify them being a party to the proceedings. The role of amicus curiae is different.
The Full Court in Re Jamie considered the jurisprudence at [36]–[39]:
36.The right to appear before the Court as amicus curiae is not a statutory right as is intervention in the family law jurisdiction”. In Levy v Victoria (1997) [189 CLR 579] at 604 Brennan CJ said of the hearing of an amicus curiae:
“The hearing of an amicus curiae is entirely in the Court’s discretion. That discretion is exercised on a different basis from that which governs the allowance of intervention. The footing on which an amicus curiae is heard is that that person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way which the Court would not otherwise have been assisted. …”
[Footnotes omitted]
37. In that case [604]–[605] Brennan CJ went on to say:
“It is not possible to identify in advance the situations in which the court will be assisted by submissions that will not or may not be presented by one of the parties nor to identify the requisite capacities of an amicus who is willing to offer assistance. All that can be said is that an amicus will be heard when the Court is of the opinion that it will be significantly assisted thereby, provided that any cost to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the assistance that is expected.”
38.In United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520 at 533–538, Davies, Wilcox and Gummow JJ undertook a detailed review of the authorities and extra-judicial writings on the subject whilst stressing that no fixed or inflexible practice about the scope and role of an amicus curiae had emerged from the authorities, and that the discretion of the Court remained a flexible one. Their honours stressed that the conventional view was that an amicus curiae could not adduce evidence or make any contribution to the record, give discovery or discover documents.
39. In Bropho v Tickner (1993) 40 FCR 165 at 172–173, Wilcox J said:
“In Australia, as distinct from the position in the United States, the intervention of an amicus curiae is a relatively rare event; the amicus’ role normally being confined to assisting the court in its task of resolving the issues tendered by the parties by drawing attention to some aspect of the case that might otherwise be overlooked. I do not dispute that it may sometimes be appropriate to allow an amicus curiae to complete the evidentiary mosaic by tendering an item of non-controversial evidence; although I would prefer to reserve my opinion whether this should be permitted to be done over the objection of one or more of the parties. But it is another matter where the proposed evidence would be complex and controversial. To allow the tender of that type of evidence may be to allow the amicus curiae to hijack the parties’ case, taking off into new factual issues which may greatly extend its length and thereby impose significant costs and disadvantages upon the parties. Rarely, if ever, should this course be permitted.”
The above passages are relevant to my approach to this application based on the affidavit evidence filed in the applicant’s case. It is not plain what submissions of law would be made by the proposed amicus curiae nor is it clear what the amicus curiae proposes to place before the Court evidence which would not otherwise be available to the Court at least in the case of Parent C, who supports the application for intervention. At the same time as I was being asked to hear and determine this case I was also being asked to consider an application to adduce expert evidence by Parent C and I have regard to the conclusions reached in that interim application in approaching this application.
From the perspective of the applicant in the substantive proceedings, the case is urgent and I must be conscious of the need to ensure that no step which is taken will unnecessarily occasion delay. Ms L’s affidavit is silent about potential for delay.
I have made a series of directions in this matter in the course of case management to acknowledge the claim of urgency and note more generally the children’s interests in expeditious determination of matters relating to their welfare.
I accept that the Court has previously permitted applications for intervention, including in cases involving gender dysphoria, but it is necessary for me to approach the application on its own merits having regard to the facts of this case.
I am conscious that the proposed intervenor has submitted that while the parties’ specific circumstances are not known to the author of the submissions, she contends that parents may feel constrained from “fully opposing gender affirming interventions”. This submission reads as though the proposed intervenor seeks to be joined to present a case which it is assumed will not be presented. This can only be conjecture. I am comforted by the fact that s 68L of the Act provides for the appointment of an ICL which appointment was made on 9 October 2023.
The role of the ICL is set out in s 68LA of the Act which provides:
When section applies
(1)This section applies if an independent children’s lawyer is appointed for a child in relation to proceedings under this Act.
General nature of role of independent children’s lawyer
(2) The independent children’s lawyer must:
(a)form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child; and
(b) act in relation to the proceedings in what the independent children’s lawyer believes to be the best interests of the child.
(3)The independent children’s lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.
(4) The independent children’s lawyer:
(a) is not the child’s legal representative; and
(b) is not obliged to act on the child’s instructions in relation to the proceedings.
Specific duties of independent children’s lawyer
(5) The independent children’s lawyer must:
(a) act impartially in dealings with the parties to the proceedings; and
(b)ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and
(c)if a report or other document that relates to the child is to be used in the proceedings:
(i) analyse the report or other document to identify those matters in the report or other document that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and
(ii)ensure that those matters are properly drawn to the court’s attention; and
(d)endeavour to minimise the trauma to the child associated with the proceedings; and
(e)facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.
Disclosure of information
(6) Subject to subsection (7), the independent children’s lawyer:
(a) is not under an obligation to disclose to the court; and
(b)cannot be required to disclose to the court any information that the child communicates to the independent children’s lawyer.
(7)The independent children’s lawyer may disclose to the court any information that the child communicates to the independent children’s lawyer if the independent children’s lawyer considers the disclosure to be in the best interests of the child.
(8) Subsection (7) applies even if the disclosure is made against the wishes of the child.
I am satisfied that the important role played by the ICL and the duties imposed by the Act are such that the Court will be provided with information necessary to make an assessment as to what orders are in the best interests of the subject children.
In the submissions filed by the applicant, reference was made to the applicant’s position that the Court may need to revisit the conclusions in the decision in Re Imogen (No 6) (2020) 61 Fam LR 344 about whether stage 2 hormone treatment is a “special medical procedure”. Even if that is the applicant’s position, the pleadings in this case make plain that the Court is being asked to make a determination about whether the proposed medical treatment is in the best interests of the subject child because the parents do not agree and so the issue does not arise in this case.
As the submissions filed on behalf of the ICL emphasise, the role of the trial judge is to focus on the specific needs of the specific children informed by evidence, including expert evidence, which ideally has the needs of the subject children at its core.
Both parents and the ICL have appeared during case management to be committed to the goal of providing the Court with the best evidence available to them to resolve the dispute relating to the children. I am not satisfied that this is one of the rare cases where intervention by an amicus curiae would be necessary or appropriate and I decline the application.
I certify that the preceding twenty-two (22) 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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