Re: Ash (No 3)
[2024] FedCFamC1F 204
•27 March 2024
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 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)
In the case of Dr F, the appended letter posed 8 questions as follows:
1.Whether [Ash] has been properly and fully informed of the risks and benefits of the proposed treatment.
2.Whether [Ash] has a realistic and well-informed understanding of what adult life may be like as a trans-identified female presenting as male.
3.Whether [Ash] has a realistic and well-informed understanding of what medical and surgical treatments can and cannot do to assist him to live as a trans-identified female presenting as male.
4.Whether [Ash] is competent to give his own consent to cross-sex hormone treatment.
5.Whether [Ash’s] current intention not to have children represents a mature and fully informed decision at his age.
6.Whether there are other explanations for his current desire for cross-sex hormone treatment, including influences from his family and friends.
7.Whether the prescription of testosterone will be very likely to prevent a deterioration in [Ash’s] mental health.
8.Whether there are alternatives to the proposed treatment.
(Respondent’s Further Amended Application in a Proceeding filed 11 December 2023, Annexure A, p.2)
The Amended Application in a Proceeding was supported by an affidavit of the Respondent’s solicitor filed 27 November 2023, who relevantly deposed that “[Dr F] is well-qualified to interview [Ash] and to provide a report in relation to the following issues” which were identical to the 8 questions identified in the application.
The matter came on for hearing before Christie J on 11 December 2023, on which occasion her Honour made the following order:
4.In respect of the evidence of [Dr F], the [respondent parent] shall be permitted to request [Dr F] provide an assessment and report in respect of the child [Ash] born [...] 2008 … 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.
It will be appreciated that was an order entirely mirroring Order 5 as sought in the respondent’s Further Amended Application in a Proceeding.
She explained her reasons for so ordering at [23]–[24] of re Ash [2023] FedCFamC1F 1058 (“re Ash”) as follows:
23.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.
24.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 prepare but to give the [respondent parent] 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 it 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 [respondent parent] is able to present at trial.
(Emphasis added)
Notwithstanding those orders and reasons, the following were the questions posed of Dr F by the respondent’s solicitors:
1.Whether in your opinion [Ash] currently meets the criteria for a diagnosis of gender dysphoria under the DSM-5?
2.What you consider to be the long term mental, physical and emotional risks and benefits of the proposed treatment?
3.Whether [Ash] has been properly and fully informed of the risks and benefits of the proposed treatment.
4.Whether [Ash] has a realistic and well-informed understanding of what adult life may be like as a trans-identified female presenting as male. Is a consideration of [Ash’s] sexuality relevant in this context and if so, why?
5.Whether [Ash] has a realistic and well-informed understanding of what medical and surgical treatments can and cannot do to assist her to live as a trans-identified female presenting as male.
6.Whether [Ash] is competent to give her own consent to cross-sex hormone treatment.
7.Whether [Ash’s] current intention not to have children represents a mature and fully informed decision at her age.
8.What other factors, in particular psychosocial factors, may influence the formation and persistence of [Ash’s] transgender identification.
9.Whether there are alternatives to the proposed treatment? Whether [Ash] has been informed of these?
10.Any other matters that you consider relevant for the Court to consider.
Questions 1, 2 and 10 are new, questions 3–7 (both inclusive) are repetitions of those advanced in the draft letter, and question 8 is a recast version of earlier question 6, as is question 9 a recast of the earlier question 8.
The applicant says that the whole report should be rejected, as the questions posed go beyond those permitted under the 11 December 2023 orders of Christie J, whereas the respondent contends that all of the questions posed of Dr F fall within the broad purview of that order. Particularly it is said that:
(a) Questions 1 and 2 falls within order 4(b)and (c);
(b) Questions 3, 4, 5, 6, 7, 8 and 9 all fall within order 4(a), (b) and (c).
In my view that is correct, and hence all the questions were legitimately posed to Dr F. But even if I am wrong as to that, I do not read [24] of re Ash as positively prohibiting the then proposed questions, as distinct from permitting the respondent an opportunity to reflect upon them and recast them. The last sentence of [24] does not speak to the contrary.
The challenges based on breach of the opinion rule – all 3 experts
Section 69ZT of the Family Law Act 1975 (Cth) (“the Act”) renders many provisions of the Evidence Act 1995 (Cth) inapplicable to parenting proceedings, unless s 69ZT(3) is invoked. That sub-section provides:
(3)Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if”
(a)the court is satisfied that the circumstances are exceptional; and
(b)the court has taken into account (in addition to any other matters the court thinks relevant):
(i)the importance of the evidence in the proceedings; and
(ii)the nature of the subject matter of the proceedings; and
(iii)the probative value of the evidence; and
(iv)the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
As to that, the circumstances of this case, whilst unusual in some respects, are not truly exceptional. Distilled to their essence, the issue in dispute is whether permitting Ash to take testosterone is in his best interests, although other ways of formulating that question can legitimately be articulated. But however the question is phrased, whether administration of testosterone is in Ash’s best interests is what lies at the heart of the dispute, and that is in no way exceptional, and certainly not exceptional in a way which would justify the imposition of the rules of evidence to the proceedings. Khalif & Tahir-Ahmadi [2010] FamCA 1080 is not authority to the contrary.
The rest of the evidentiary challenges
The balance of all the objections can be dealt with as a job lot. In essence, they relate to relevance, unresponsiveness and similar complaints.
I accept that relevance remains a legitimate objection, as Pt 3.1 of the Evidence Act continues to apply to parenting proceedings (s 69ZT(1)(c) of the Act). However, truly irrelevant evidence should be afforded no weight, even if it is admitted; conversely having regard to it would be to have regard to an irrelevant consideration, and justify appellate intervention.
Moreover, to the extent that irrelevant or argumentative material is included in an expert report, it will likely prove a legitimate topic for cross-examination, or comment, or both. An expert who ventures into giving such evidence may legitimately have their expertise adversely critiqued, and/or the weight evidence given within their expertise deserves diminished, as against evidence from an expert who does not similarly transgress.
In that sense therefore, the evidence is relevant to the case, even if not necessarily directly relevant to the central issues.
I decline to exclude any evidence on these several contended bases.
OUTCOME
None of the applicant’s objections to the evidence of the respondent’s expert witnesses are made out.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 27 March 2024
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