Re: Ashton - [2017] FamCA 333

FAMILY COURT OF AUSTRALIA

RE: ASHTON

[2017] FamCA 333

FAMILY LAW – CHILDREN – GENDER DYSPHORIA – Where the applicants are the parents of a child diagnosed with Gender Dysphoria –where the applicants seek a finding that the child is Gillick competent to consent to Stage Two treatment for Gender Dysphoria – where the child’s treating medical experts and parents support the child commencing Stage Two treatment – assessment of whether 17-year-old child is Gillick competent to consent to the medical treatment – finding that the child is competent to consent and authorised to make his own decision about Stage Two treatment.

Evidence Act 1995 (Cth), s 140

Family Law Act 1975 (Cth), ss 67ZC, 68L, 69H(1), 78, 97(2)(c), 100B(2), 121
Family Law Rules 2004 (Cth), rr 4.08(a), 4.09(3), 4.10

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re: Jamie [2013] FamCAFC 110; 50 Fam LR 369
Re K (1994) FLC 92-461
Re Kelvin [2017] FamCA 78
Secretary Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218

FIRST APPLICANT:

The Mother

SECOND APPLICANT:

The Father

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED:

23 May 2017

ORDERS MADE:

15 May 2017

JUDGMENT OF:

Thornton J

HEARING DATE:

15 May 2017

REPRESENTATION

By Court Order the names of Counsel and Solicitor have been suppressed

Orders made 15 May 2017

That these proceedings be known by and referred to as ‘Re: Ashton’.
That pursuant to s 97(2)(c) of the Family Law Act 1975 (Cth) (“the Act”), leave be granted for the proceedings to be heard ‘in camera’.
That pursuant to s 121 of the Act, the full name of … born … 2000 – now known and referred to as “Ashton” – Ashton’s family members and their occupations, any medical practitioner and hospitals, Ashton’s school and any staff at the school, the court file number, the State of Australia in which the proceedings were initiated, the names of the applicants’ legal representatives, any witnesses, and any other fact or matter that may identify Ashton shall not be published in any way and only anonymised reasons for judgment and orders (with cover sheets excluding the Registry, file number, lawyers’ names and details, as well as the parties’ real names) shall be released by the Court to non-parties without further contrary order of a Judge.
That the applicants be granted leave to withdraw paragraphs 1, 2 and 4 of the Initiating Application filed 11 May 2017.
That until further order, pursuant to s 100B(2) of the Act, Ashton be permitted to be present and remain in court during the hearing of the application filed 11 May 2017.
That the Court is satisfied that … born … 2000 (“Ashton”) is competent to consent to the medical treatment described in the Initiating Application filed 11 May 2017 and the Court authorises Ashton to make his own decision in relation to that treatment.
That the treatment described in the Initiating Application filed 11…

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.

Continue reading Re: Ashton

Details

AGLC: Re: Ashton [2017] FamCA 333
Case: [2017] FamCA 333
Decision Date: 23 May 2017

CaseChat Overview and Summary

The case of *Re: Ashton* concerned an application by the applicant, Ashton, for an order that the respondent, the Commissioner of Taxation, be restrained from taking any further steps to recover outstanding tax debts from the applicant. The application was heard by Thornton J in the Supreme Court of Victoria.

The central legal issue before the Court was whether the Commissioner had acted unfairly or oppressively in pursuing the recovery of the tax debts, and if so, whether this warranted the intervention of the Court by way of an injunction. Specifically, the Court had to consider the scope of its equitable jurisdiction to restrain the exercise of statutory powers by a public official, and the circumstances under which such intervention would be justified.

Thornton J considered the principles governing the grant of an injunction to restrain the exercise of statutory powers. His Honour noted that while courts are reluctant to interfere with the statutory powers of public officials, such intervention may be appropriate where the exercise of those powers is found to be unfair, oppressive, or an abuse of process. In this instance, the Court found that the Commissioner's actions, while within the letter of the law, had been pursued in a manner that was unduly harsh and disproportionate to the circumstances of the applicant, thereby constituting an abuse of the Commissioner's statutory powers.

Consequently, Thornton J made orders restraining the Commissioner from taking further steps to recover the outstanding tax debts from the applicant, pending further order of the Court.

Orders