Re: Ash (No 3) - [2024] FedCFamC1F 204

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Re: Ash (No 3) [2024] FedCFamC1F 204

File number: By court order the file number is suppressed

Judgment of: TREE J

Date of judgment: 27 March 2024

Catchwords: FAMILY LAW – OBJECTIONS – Gender dysphoria – Where there is an array of expert evidence adduced by the parties and the Independent Children’s Lawyer – Where the applicant advanced objections to various parts of the respondent’s expert evidence on the basis questions posed to an expert were not permissible pursuant to an earlier order – Where the applicant contends s 69ZT(3) of the Family Law Act 1975 (Cth) is engaged and the evidence is in breach of the opinion rule – Where the circumstances of the case are not exceptional in a way which would justify the imposition of the rules of evidence to the proceedings – Where the asserted irrelevant or argumentative evidence will likely prove a legitimate topic for cross-examination – Where none of the applicant’s objections are made out – Ruling made.

Legislation:
Evidence Act 1995 (Cth) Pt 3.1

Family Law Act 1975 (Cth) ss 69ZT

Cases cited:
Khalif & Tahir-Ahmadi [2010] FamCA 1080

re Ash [2023] FedCFamC1F 1058

Division: Division 1 First Instance

Number of paragraphs: 25

Date of hearing: 19 March 2024

Counsel for the Applicant: Suppressed by Court Order

Solicitor for the Applicant: Lander & Rogers

Counsel for the Respondent: Ms Lane and Mr O’Grady

Solicitor for the Respondent: Watts McCray

Counsel for the Independent Children's Lawyer: Suppressed by Court Order

Solicitor for the Independent Children's Lawyer: Legal Aid Commission
ORDERS

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
PARENT B

Applicant

AND:
PARENT C

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

TREE J

DATE OF ORDER:

27 MARCH 2024

THE COURT RULES THAT:
1.None of the Applicant’s objections to the expert evidence to be called by the Respondent are made out.

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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Re Ash (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
RULING
TREE J:
INTRODUCTION

The trial of these complex parenting proceedings is currently part-heard by me. In advance of the trial resuming on 22 June 2024, the parties agreed to have the admissibility of certain evidence determined, and on 19 March 2024 I heard the relevant arguments, but reserved my decision. This is that ruling and the reasons for it.
BACKGROUND
The proceedings relate to the parties’ two children, who in these reasons I shall refer…

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.

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Details

Case: [2024] FedCFamC1F 204
Decision Date: 27 March 2024

CaseChat Overview and Summary

The Family Court was called upon to determine objections raised by the applicant, Parent B, to the admissibility of certain expert evidence proposed to be presented by the respondent, Parent C, in the course of complex parenting proceedings. The core issue in the case was whether the 16-year-old child, Ash, who had been living as male for over four years, should be permitted to commence taking testosterone. The applicant sought sole parental responsibility to consent to the administration of testosterone, while the respondent sought equal shared parental responsibility with injunctions against the administration of testosterone. The court had to decide on the admissibility of expert evidence from three experts proposed to be called by the respondent, with the applicant objecting to parts of the evidence on the grounds that it was not permissible under an earlier order, and violated the opinion rule as per section 69ZT(3) of the Family Law Act 1975 (Cth).

The court considered whether the circumstances warranted the imposition of the rules of evidence to the proceedings, particularly in light of the opinion rule which restricts experts from providing opinions on the ultimate issue in family law proceedings. The court noted that the evidence, while arguably irrelevant or argumentative, was likely to be a legitimate topic for cross-examination. The court also assessed whether the case was exceptional in a way that would justify deviating from the usual rules. Ultimately, the court found that none of the objections were substantiated. The court concluded that the evidence, despite some overlap with the ultimate issue, did not breach the opinion rule and was relevant to the child's best interests and health considerations.

The court's reasoning was that while the evidence might touch on areas that are usually restricted under the opinion rule, the context and nature of the proceedings justified its admissibility. The court was mindful that the evidence could be challenged through cross-examination, which would allow the applicant to test its validity and relevance. The court's decision was based on a balanced consideration of the need for comprehensive expert input in such complex matters and the procedural safeguards available to challenge the evidence. Consequently, the court ruled that none of the applicant's objections were made out, allowing the proposed expert evidence to be presented at the trial.

Orders

Orders of the court

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

PARENT B

Applicant

AND:

PARENT C

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

TREE J

DATE OF ORDER:

27 MARCH 2024

THE COURT RULES THAT:

1. None of the Applicant’s objections to the expert evidence to be called by the Respondent are made out.

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).

Background

Background to the litigation

The trial of these complex parenting proceedings is currently part-heard by me. In advance of the trial resuming on 22 June 2024, the parties agreed to have the admissibility of certain evidence determined, and on 19 March 2024 I heard the relevant arguments, but reserved my decision. This is that ruling and the reasons for it.BACKGROUND The proceedings relate to the parties’ two children, who in these reasons I shall refer to as Ash and Lee, who are respectively 16 and 13 years old. Although ostensibly a dispute about parental responsibility for the children, that disguises the true conflict between the parties, which is whether Ash, who was born female but has for more than four years now lived as male, should be able to commence taking testosterone to enable him to better present as male. For the applicant’s part they seek sole parental responsibility, so as to be able to consent to the administration of testosterone for Ash, whereas the respondent seeks equal shared parental responsibility, save that there be injunctions, amongst other things, forbidding the administration of testosterone. In some respects the case is analogous to a test case, in that both parties and the Independent Children's Lawyer have armed themselves with quite an array of experts, whose evidence conflicts in several significant respects. In the applicant’s Case Outline filed 1 March 2024 they advanced objections to various parts of the evidence of two of the respondent’s experts, and to the totality of the evidence of another. It is convenient to deal with them in reverse order. The objection to the totality of Dr F’s report A little more background is necessary to understand the objection to the totality of Dr F’s evidence. By Further Amended Application in a Proceeding filed 11 December 2023, the respondent sought, among other things, the following orders:1. The [Respondent parent] have leave to adduce at trial evidence from:…c. [Dr F], clinical psychologist.(“the [Respondent parent’s] experts”)…5.The [Respondent] be permitted to engage [Dr F], clinical psychologist to provide an assessment and report on the child, [Ash], ... 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 this child with having the treatment as proposed or not having treatment as proposed.c.Any other matters considered relevant to this child’s psychological or physical health and best interests in the context of this application.…9.That for the purpose of these Orders the [Applicant] shall release letters of instruction which are annexed to this Application and marked “A” to the [Respondent parent’s] Experts, as contemplated in correspondence from the [Applicant parent’s] legal representative to the Independent Children's Lawyer and the Respondent’s legal representatives on 8 December 2023.(Respondent’s Further Amended Application in a Proceeding filed 11 December 2023)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	By court order the file number is suppressed
Judgment of:	TREE J
Date of judgment:	27 March 2024
Catchwords:	FAMILY LAW – OBJECTIONS – Gender dysphoria – Where there is an array of expert evidence adduced by the parties and the Independent Children’s Lawyer – Where the applicant advanced objections to various parts of the respondent’s expert evidence on the basis questions posed to an expert were not permissible pursuant to an earlier order – Where the applicant contends s 69ZT(3) of the Family Law Act 1975 (Cth) is engaged and the evidence is in breach of the opinion rule – Where the circumstances of the case are not exceptional in a way which would justify the imposition of the rules of evidence to the proceedings – Where the asserted irrelevant or argumentative evidence will likely prove a legitimate topic for cross-examination – Where none of the applicant’s objections are made out – Ruling made.
Legislation:	Evidence Act 1995 (Cth) Pt 3.1 Family Law Act 1975 (Cth) ss 69ZT
Cases cited:	Khalif & Tahir-Ahmadi [2010] FamCA 1080 re Ash [2023] FedCFamC1F 1058
Division:	Division 1 First Instance
Number of paragraphs:	25
Date of hearing:	19 March 2024
Counsel for the Applicant:	Suppressed by Court Order
Solicitor for the Applicant:	Lander & Rogers
Counsel for the Respondent:	Ms Lane and Mr O’Grady
Solicitor for the Respondent:	Watts McCray
Counsel for the Independent Children's Lawyer:	Suppressed by Court Order
Solicitor for the Independent Children's Lawyer:	Legal Aid Commission

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	PARENT B Applicant
AND:	PARENT C Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	TREE J
DATE OF ORDER:	27 MARCH 2024